This is typically the first time in the process that the parties and their attorneys will see each other. The party being deposed will be put under oath and will be asked questions by the opposing counsel.
Lying at a deposition is subject to perjury penalties. The proceeding will be before a stenographer. The stenographer will record precisely word for word what is being asked, answered, and said at the EBT.
The stenographer will then create a written transcript that can be used at trial by either party. EBTs are an extremely important part of the process of a civil lawsuit. The Request for Judicial Intervention is a formal legal document filed with the county clerk, usually by the plaintiff, asking the court assigned to the lawsuit to now get involved. The court will set up times for the parties to meet with the court to determine where the parties are in the process, and whether the court needs to get involved in moving the process along.
At some point, the court will inquire from the parties whether there is a possibility of settlement. If so, the court may get involved in getting the parties together to move the settlement along to a mutually agreeable conclusion. A motion for a summary judgment is an application before the court by either party. The parties in a motion for summary judgment are asking the court to find that there is no question of fact for a jury to decide and that as a matter of law the judge should therefore rule in their favor thus ending the case.
The plaintiff would be asking for a judgment against the defendant without the need to go to trial, while the defendant would be asking for a judgment against the plaintiff dismissing the case. Once the entire discovery phase of the lawsuit is completed and the parties feel they are ready for trial, the plaintiff will file a formal document known as a Note of Issue with the county clerk.
It would not be unusual for it to take up to eighteen months or more to for a case to get to trial once the Note of Issue is filed. Settlement is the process where the parties agree to a result between themselves. It can occur anywhere in the path of a lawsuit, even after a jury verdict. The strength or weakness of a case determines whether a lawsuit will settle or not.
It also determines the amount of a settlement. The funds available also greatly influence the settlement process. Is there insurance coverage involved and if so, what are the limits of said insurance policy?
For example, a serious injury suffered by a plaintiff without the ability to collect the money damages that would be appropriate for such an injury because the defendant is not adequately insured and financially incapable, may affect the settlement process. Just as it is the case that most criminal defendants will take a plea bargain instead of going to trial, so too will the vast majority of parties in civil lawsuits agree to a settlement before trial.
A civil negligence trial will be similar in format to a criminal trial. There will be a jury selection which is the same as that of a criminal trial. For a civil case, there are six jurors. The judge will speak to the jury at the start of the trial to explain to them what their role is, the rules they must follow, and how the trial will proceed. The attorneys will have the opportunity to make opening statements to the jury.
The plaintiff will then present evidence through various witnesses with the defense attorney having the opportunity to cross exam said witnesses. Once the plaintiff is done with their side of the case, the defense has the opportunity to present their witnesses and evidence in their defense. There will then be closing statements to the jury with the plaintiff going first. The judge will then charge the jury with the law. They jury will then deliberate and deliver a verdict. The standard of proof for a civil negligence case is preponderance of the evidence.
The jury verdict does not have to be unanimous, just five of the six jurors are needed to decide a case and deliver a verdict. The verdict will include the remedy. If the plaintiff wins, the amount of damages will be decided by jury.
If the defendant wins, the case is dismissed. There are situations in civil trials where both parties are suing each other. It makes the trial more complicated, but the process and format are basically the same. The most common remedy in civil cases is money damages. However, there are two other types of remedies available to plaintiffs and civil courts; injunctions and specific performance orders.
An injunction is a court order telling a defendant to stop doing something. For example, a plaintiff may sue a defendant developer asking the court to issue an injunction to stop the developer from cutting down trees on land the developer owns because the plaintiff thinks the developer is hurting wildlife, and therefore violating the law by doing so.
Sometimes, judges will issue a preliminary injunction to stop certain actions until the judge can make final more informed decision. Specific performance is an order from the court telling a defendant to actually do something. For example, if the object of the lawsuit is a unique antique which the defendant now refuses to sell to the plaintiff pursuant to a valid contract between the parties, the court would order the turning over of that specific antique to the plaintiff pursuant to the terms of the contract by issuing a specific performance order.
What happens when an employee is injured on the job? A worker is not required to hire an attorney, although many do. Lawsuits can be expensive and stressful. Insurance protection can often be purchased to protect a person or business from potential monetary damages from some tort lawsuits.
It should be noted that there is no insurance available for intentional torts. Most homeowners have insurance not only to protect them from fire damage, but from lawsuits such as a guest who trips and falls on their property or is bitten by their pet dog. Most doctors and hospitals have insurance to protect and defend them from lawsuits brought by patients who sue for inadequate or improper medical care. Lawyers and other professionals also carry malpractice insurance.
Businesses usually have insurance to protect them from lawsuits brought by customers for slip and fall cases, false arrest claims, or product liability.
Employers in NYS are required to have this insurance to provide coverage for their employees that are injured while on the job. In NYS, all registered vehicles are required by law to have insurance. Automobile accident lawsuits are regulated by the NYS no-fault insurance statute. Under this law, anyone registering a motor vehicle in New York State is required to have at least the minimal amount of automobile insurance coverage for that vehicle.
Thus, we get the name no-fault insurance. Under this statute, lawsuits for automobile accident cases are only allowed when a plaintiff is seriously injured, as defined by the statute. The minimal amount of liability coverage you can purchase in NYS is:. Many drivers purchase more insurance than the minimal insurance required by law. They do so in case they are responsible for an accident and the injured plaintiff is seriously injured or killed. In those situations, the damages can easily exceed the minimum insurance amounts.
If this happens, the injured plaintiff can sue and obtain a judgment for more than the insurance amount. The defendant is responsible for damages that exceed their insurance coverage.
This could place the defendant in financial jeopardy if they have to pay such judgment out of their own assets. If cash and assets are insufficient to cover the judgment, a long-term wage garnishment could be placed on the insured wages as a collection tool. NYS does not require what is called collision insurance. However, most lenders and lease agreements do require the owner or person registering the vehicle to purchase said insurance.
Collision insurance pays for damage to your vehicle caused by an accident. It does not take into consideration fault in providing payment or repairs to the vehicle. However, fault could affect future premiums or cost of your insurance. Most collision insurance requires what is called a deductible amount. This is the amount you as the insured must pay first for damages to your vehicle before the carrier. Collision insurance will cover the repairs to your vehicle even in situations where you may accidentally hit a tree or post, and no other vehicle is involved.
There are also other coverages a consumer can purchase as part of an automobile insurance policy. Typically, glass coverage, car rental costs, and comprehensive coverage for damages caused by fire, theft, and vandalism are available.
All NYS automobile insurance policies have uninsured coverage provisions. In the event you are seriously injured by a vehicle that is uninsured, your insurance carrier will reimburse you up to the amount of uninsured coverage provided in your policy. There is also underinsured coverage available for purchase in the event the defendant you are suing has coverage that does not meet the amount of your damages. Motorcycle insurance and liability rules in New York are very different than that for cars.
A motorcycle is not a motor vehicle as defined under the no-fault insurance law. Therefore, a motorcyclist is not a covered person under the no-fault insurance law which also means they are not entitled to the medical and lost wage benefits of said law.
However, motorcyclists injured in motor vehicle accidents are also not subject to the serious injury threshold that motor vehicle drivers are subject to. So, a person injured on a motorcycle can bring a claim against the defendant driver even for minor injuries that would not pass the no-faulty insurance threshold. Privacy Policy. Skip to main content. Search for:. The four elements are: Duty Breach Causation Harm A basic negligence lawsuit would require a person owing a duty to another person, then breaching that duty, with that breach being the cause of the harm to the other person.
DUTY: The first element of negligence is duty, also referred to as duty of care. The reasonable person standard : A duty of care is based on what a reasonable person, in the same or similar circumstance, would do. BREACH : Once a plaintiff has established and proven that a defendant owned a duty of care to the plaintiff, the second element of negligence a plaintiff must prove is a breach of that duty of care. To establish res ipsa loquitur , three requirements must be met which are: This event is not something that normally happens without negligence.
Neither the plaintiff nor any other third party is responsible for the harm to the plaintiff. N egligence per se : We have numerous criminal and civil statutes that prohibit certain acts or omissions that are safety related.
HARM : Harm can come in many forms. Compensatory Damages: Compensatory damages are categorized as either general damages or special damages. General Damages: Below are some examples of general damages. Disfigurement: Disfigurement includes any scarring on the body or loss of a body part. Severe E motional Distress: Physical injury is not necessary to prove a person has suffered severe emotional distress.
Loss of Consortium: The spouse of a person that is injured can sue for damages based on the loss of consortium. Special Damages: Below are some examples of special damages.
Medical bills Loss of income Loss of future earnings Custodial care Medical bills: Medical expenses both current and future are recoverable damages. Loss of income: The loss of income is a calculation.
Loss of future earnings: The loss of future earnings can be calculated based on injury suffered, how it will reasonably impact the ability of the injured person to work in the future, what those earnings would reasonable be, and the life expectancy of the person injured. Custodial care: Custodial care necessary due to the injury can also be calculated based on the reasonable and necessary past and future custodial care required. Punitive Damages: The purpose of punitive damages is to a punish a tortfeasor and b discourage further such acts by the tortfeasor and others.
Nominal D amages : There are situations where a plaintiff proves their tort case, but a jury finds they have suffered little if any harm. Comparative Negligence: Sometimes, there is negligence on the part of both parties involved in a negligence lawsuit. Statutes of Limitations: The law puts deadlines on when most legal actions can be commenced, both civil and criminal. Tolling of the Statute of Limitations: In some instances, the statute of limitations may be extended or tolled.
Common intentional torts include: Assault Battery Trespass to Land Conversion Defamation Intentional Infliction of Emotional Distress False Imprisonment Assault: Civil assault is an intentional act by the defendant that causes reasonable apprehension or fear of harmful or offensive contact of the plaintiff. Battery: Battery is an intentional act by the defendant that causes harmful or offensive contact of the plaintiff. Defamation : Defamation is the intentional communication sometimes referred to as publication by the defendant to a third person of a false statement about the plaintiff that causes harm to the reputation of the plaintiff resulting in damages.
Intentional Infliction of Emotional Distress: Intentional infliction of emotional distress is an intentional act by words or actions of extreme or outrageous conduct by the defendant that causes severe emotional distress of the plaintiff. Self-Defense: A defendant in certain situations may have a claim of self-defense to an intentional tort.
Immunity: Under both the state and federal constitutions, government officials may be immune for certain lawsuits.
Statutes of Limitations: As discussed in the negligence section above, there are statutes of limitations for intentional torts. Answer: Once a defendant is served with a summons and complaint, they will have either twenty or thirty days, depending on how they were served, to provide their answer to the complaint.
Discovery: Discovery is the process by which both parties are required upon demand by the other, to provide information that relates to the lawsuit. Request for Judicial Intervention: The Request for Judicial Intervention is a formal legal document filed with the county clerk, usually by the plaintiff, asking the court assigned to the lawsuit to now get involved. Motion for Summary Judgment: A motion for a summary judgment is an application before the court by either party.
Note of Issue: Once the entire discovery phase of the lawsuit is completed and the parties feel they are ready for trial, the plaintiff will file a formal document known as a Note of Issue with the county clerk.
Settlement: Settlement is the process where the parties agree to a result between themselves. Trial: A civil negligence trial will be similar in format to a criminal trial. Injunction: An injunction is a court order telling a defendant to stop doing something.
Specific Performance: Specific performance is an order from the court telling a defendant to actually do something. Common examples of insurance coverage include: Homeowners Insurance Most homeowners have insurance not only to protect them from fire damage, but from lawsuits such as a guest who trips and falls on their property or is bitten by their pet dog. Malpractice I nsurance Most doctors and hospitals have insurance to protect and defend them from lawsuits brought by patients who sue for inadequate or improper medical care.
Injured parties may bring suit to recover damages in the form of monetary compensation or for an injunction , which compels a party to cease an activity. In certain cases, courts will award punitive damages in addition to compensatory damages to deter further misconduct. In the vast majority of tort cases, the court will award compensatory damages to an injured party that has successfully proven his or her case. Thus, courts may award damages for incurred as well as expected losses.
When the court has an interest in deterring future misconduct, the court may award punitive damages in addition to compensatory damages. For example, in a case against a manufacturer for a defectively manufactured product, a court may award punitive damages to compel the manufacturer to ensure more careful production going forward.
In some cases, injured parties may bring suit to obtain an injunction rather than monetary relief. The party seeking an injunction typically must prove that it would suffer considerable or irreparable harm without the court's intervention.
Torts are distinguishable from crimes, which are wrongs against the state or society at large. The main purpose of criminal liability is to enforce public justice. In contrast, tort law addresses private wrongs and has a central purpose of compensating the victim rather than punishing the wrongdoer. For example, gross negligence that endangers the lives of others may simultaneously be a tort and a crime. Some actions are punishable under both criminal law and tort law, such as battery.
In that case, ideally tort law would provide a monetary remedy to the plaintiff, while criminal law would provide rehabilitation for the defendant, while also providing a benefit to society by reforming the defendant who committed assault.
Tort law is also distinct from contract law. If conduct is lawful apart from the motive, a bad motive will not make the defendant liable. A bad intent may render illegal an act done in combination with others which would have been legal if committed by one person only.
A bad or wrongful motive will defeat the defence of privilege in an action for defamation. Mistake refers to the situation where the defendant intends to produce a particular result but mistakenly believes that his or her conduct is innocent.
The mistake may be one of fact or law. Where the defendant is in full possession of all facts of the situation giving rise to the injury, failure to apprehend the tortious character of his or her conduct is a mistake of law.
A defendant acting under a mistake of law is not excused from liability. The defendant who mistakenly but honestly and reasonably believes in a state of facts which, if true, would provide a complete justification for his or her conduct is acting under a mistake of facts.
The relevance of mistake of fact on all intentional torts is uncertain, but it is generally no defence to intentional interference with property interests. No person can be held liable in tort unless the act or omission with which he or she is charged was a breach of a duty owing by that person to the plaintiff or to a class to which the plaintiff belongs, and the plaintiff has suffered individual damage therefrom.
A relationship based on proximity or reliance may exist between the plaintiff and defendant, giving rise to an actionable duty of care. Injury that is recognized as actionable under the law may be caused by the direct act of the defendant, the indirect or consequential act of the defendant, the omission or failure of the defendant to act or by a general legal responsibility imposed upon the defendant because she or he has a special relationship to the individual who actually caused the injury.
For instance, an employer may be vicariously responsible for the act of an employee, a principal for that of an agent or a publisher for the defamatory statement of a writer. Interests protected by the law of torts can be classified as injury to the person, injury to the property of the plaintiff and injury to the financial interests of the plaintiff. For instance, in defamation and in battery, the law presumes that injury has occurred from the act that constitutes the cause of action itself.
The plaintiff must establish facts from which the judge or jury may reasonably draw the inference that the wrongful act of the defendant was the probable cause of injury. When a plaintiff has been injured by one of two defendants, in circumstances where both defendants have acted carelessly, and the effect of the carelessness has been to make it impossible for the plaintiff to show which one of the defendants actually caused the injuries, both defendants should be found liable unless they can exculpate themselves.
The doctrine of res ipsa loquitur is expired and is no longer a separate component of negligence actions. Liability may be imposed upon a defendant for both a tortious wrong and breach of contract. Where a contract exists between the parties, the plaintiff must establish, to succeed in an action for tort, that there also existed a special relationship that gives rise to a common law duty of care in tort.
If the breach alleged is of a duty arising out of the obligations undertaken by the contract, which cannot be established without reference thereto, the action must be founded in contract.
Concurrent liability may exist where the plaintiff can establish that a common law duty of care was owed because there was a relationship of sufficient proximity between the parties to constitute that duty and there is no valid policy reason for negating the duty. The terms of the contract may indicate the nature of the relationship but the express duty must not depend upon the obligations set out under the contract and must exist independently at law. The plaintiff may assert the right or cause of action which is most advantageous, unless there is an express exclusion or limitation of liability in the contractual terms between the parties.
This election may have a bearing upon the relevant limitation of action provision, the commencement of the limitation period, the type of damages that can be claimed and the applicability of statutes that apportion liability.
It is clear that punitive damages may be awarded in tort actions, but such an award is very rare in contract cases. Punitive damages may be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. In Canada, the courts have held that the amount of damages recoverable should not depend on whether the plaintiff brings a cause of action in tort or contract.
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