Friend hit by a car; NY law doesn't seem helpful, what can she do?
May 13, 2013 10:37 AM Subscribe
A friend of mine was hit by a car as a pedestrian in New York state. Full question below.
My friend was walking with her boyfriend across the street as told to by a crosswalk. She was 3/4 of the way to the other side (her boyfriend said about 20 seconds had passed on the 30-second crosswalk timer when she was hit) and a car ran a solid red and hit her at about 30 mph. The car was in the left lane and not turning right -- the car just blatantly went through a red light. She was struck, rolled onto the hood and fell onto the ground -- she is currently in a lot of pain and has some herniated discs but did not break anything. There were a ton of witnesses.
In the police report, the driver fully admitted he ran the red light and that he had two drinks before driving. He claimed in the report the sun was blocking his view, but it was 8pm -- the sun wasn't out and there was a big fire truck and a line of cars all stopped that the driver should've seen and also should've blocked any supposed sunlight as he approached the intersection. (That firetruck was also why my friend and her boyfriend couldn't see the car coming.) According to a road side breath test, the driver blew a 0.04. My friend and her boyfriend claim the police let him sit in his car at least an hour before they tested him for alcohol. Police did not take him in for a test to check his BAC at the police station -- they let the driver go. The driver is very old and also very wealthy/well-known/poerful in this area. The driver attempted to leave the scene immediately, tossing his business card at my friend and telling her to call him, but my boyfriend screamed that no one should let him leave. The firefighters who were there in their firetruck helped my friend and her boyfriend.
My friend is seeking legal counsel literally from one of the personal injury attorneys you see billboards and ads for. She knows someone who works there, but a secretary. An attorney from the law firm told her she can only sue only 1) for her medical costs, 2) if she has long-term pain or 3) if she is out of work for 90 days. They say the fact that this guy was drinking and might've been drunk cannot be used and emotional distress is not a legitimate reason to sue in NY. We checked and the police station's typical protocol is if someone blows below the legal limit, they are not brought in for a more accurate test. In my opinion, a roadside breath test is inaccurate, can be "beaten" and when the driver admitted to drinking and blew anything, he should've been taken to the station for a BAC test that is admissible in court immediately. (DWI in NY is .08, but DWAI is .06.) I feel like drinking and then running a solid red and hitting a person would be something a jury would be sympathetic toward if there is a case my friend can bring before a jury. My friend went to the hospital immediately after the incident, but the attorneys also told her to visit her own doctors to get documentation of the pain and problems she is experiencing. But it sounds like any monetary damages she can sue for are only limited to medical bills, lost wages if she missed three months of work and then if she experiences long-term chronic pain, only then can she be able to sue over quality of life.
My question is: Is there really nothing more she can do? I feel like this guy is getting away with something pretty serious. My friend is in extreme pain and can't move. He hit a human being with his car when he was drinking. Is there anything else she can do to bring this guy to justice, because right now there's a good chance the judge will just give him a ticket for running a red light, reduced down to a parking ticket. Secondly, if she can only sue for chronic pain, what is the standard there? -- if she visits a doctor frequently complaining of pain and does physical therapy, is that enough? Or would she have had to miss work too? How do you prove being in pain and what is the burden of proof? What is the threshold for "serious injury" in NY. And then, is she entitled to compensation beyond merely reimbursing her for medical bills if she does have chronic pain? Would that be a large sum of money enough for this extremely wealthy man to feel penalized at all? I feel like this guy needs to pay up somehow -- what he did was fucked up.
Thanks.
My friend was walking with her boyfriend across the street as told to by a crosswalk. She was 3/4 of the way to the other side (her boyfriend said about 20 seconds had passed on the 30-second crosswalk timer when she was hit) and a car ran a solid red and hit her at about 30 mph. The car was in the left lane and not turning right -- the car just blatantly went through a red light. She was struck, rolled onto the hood and fell onto the ground -- she is currently in a lot of pain and has some herniated discs but did not break anything. There were a ton of witnesses.
In the police report, the driver fully admitted he ran the red light and that he had two drinks before driving. He claimed in the report the sun was blocking his view, but it was 8pm -- the sun wasn't out and there was a big fire truck and a line of cars all stopped that the driver should've seen and also should've blocked any supposed sunlight as he approached the intersection. (That firetruck was also why my friend and her boyfriend couldn't see the car coming.) According to a road side breath test, the driver blew a 0.04. My friend and her boyfriend claim the police let him sit in his car at least an hour before they tested him for alcohol. Police did not take him in for a test to check his BAC at the police station -- they let the driver go. The driver is very old and also very wealthy/well-known/poerful in this area. The driver attempted to leave the scene immediately, tossing his business card at my friend and telling her to call him, but my boyfriend screamed that no one should let him leave. The firefighters who were there in their firetruck helped my friend and her boyfriend.
My friend is seeking legal counsel literally from one of the personal injury attorneys you see billboards and ads for. She knows someone who works there, but a secretary. An attorney from the law firm told her she can only sue only 1) for her medical costs, 2) if she has long-term pain or 3) if she is out of work for 90 days. They say the fact that this guy was drinking and might've been drunk cannot be used and emotional distress is not a legitimate reason to sue in NY. We checked and the police station's typical protocol is if someone blows below the legal limit, they are not brought in for a more accurate test. In my opinion, a roadside breath test is inaccurate, can be "beaten" and when the driver admitted to drinking and blew anything, he should've been taken to the station for a BAC test that is admissible in court immediately. (DWI in NY is .08, but DWAI is .06.) I feel like drinking and then running a solid red and hitting a person would be something a jury would be sympathetic toward if there is a case my friend can bring before a jury. My friend went to the hospital immediately after the incident, but the attorneys also told her to visit her own doctors to get documentation of the pain and problems she is experiencing. But it sounds like any monetary damages she can sue for are only limited to medical bills, lost wages if she missed three months of work and then if she experiences long-term chronic pain, only then can she be able to sue over quality of life.
My question is: Is there really nothing more she can do? I feel like this guy is getting away with something pretty serious. My friend is in extreme pain and can't move. He hit a human being with his car when he was drinking. Is there anything else she can do to bring this guy to justice, because right now there's a good chance the judge will just give him a ticket for running a red light, reduced down to a parking ticket. Secondly, if she can only sue for chronic pain, what is the standard there? -- if she visits a doctor frequently complaining of pain and does physical therapy, is that enough? Or would she have had to miss work too? How do you prove being in pain and what is the burden of proof? What is the threshold for "serious injury" in NY. And then, is she entitled to compensation beyond merely reimbursing her for medical bills if she does have chronic pain? Would that be a large sum of money enough for this extremely wealthy man to feel penalized at all? I feel like this guy needs to pay up somehow -- what he did was fucked up.
Thanks.
IAAL, IANYL, TINLA.
Your friend already has legal counsel, which is what I and most other people here would tell her to do. If she wants a second legal opinion, she is certainly entitled to receive it from another lawyer licensed in her state.
posted by Tanizaki at 10:44 AM on May 13, 2013
Your friend already has legal counsel, which is what I and most other people here would tell her to do. If she wants a second legal opinion, she is certainly entitled to receive it from another lawyer licensed in her state.
posted by Tanizaki at 10:44 AM on May 13, 2013
Wow, time to get a new lawyer. OF COURSE there's more she can do. Ask around for a referral to a good attorney.
nth keep meticulous records of Medical expenses, time missed from work, and prescriptions and otc remedies.
Pain and suffering is typically computed as a multiple of doctors bills. So, if your friend is told to got to physical therapy, she should. And mark the time she's off work to do it, as well as what the costs are.
The motorists insurance company should be paying for all medical stuff, if she's out of pocket, or her medical insurance is paying, she still needs to keep records as her insurance company will want to SUBROGATE the claim. In other words her medical insurance company will go after his auto insurance company.
The drunk part is a red herring. The part she needs to be concerned with is suing the drivers insurance for her medical bills and pain and suffering.
posted by Ruthless Bunny at 10:44 AM on May 13, 2013 [1 favorite]
nth keep meticulous records of Medical expenses, time missed from work, and prescriptions and otc remedies.
Pain and suffering is typically computed as a multiple of doctors bills. So, if your friend is told to got to physical therapy, she should. And mark the time she's off work to do it, as well as what the costs are.
The motorists insurance company should be paying for all medical stuff, if she's out of pocket, or her medical insurance is paying, she still needs to keep records as her insurance company will want to SUBROGATE the claim. In other words her medical insurance company will go after his auto insurance company.
The drunk part is a red herring. The part she needs to be concerned with is suing the drivers insurance for her medical bills and pain and suffering.
posted by Ruthless Bunny at 10:44 AM on May 13, 2013 [1 favorite]
To my layman's ear, it sounds like you're mixing up a civil suit with a criminal trial. Civil suits are for damages, criminal for the punishment you're looking to inflict, from what I understand.
posted by xingcat at 10:45 AM on May 13, 2013 [3 favorites]
posted by xingcat at 10:45 AM on May 13, 2013 [3 favorites]
Response by poster: I forgot to add this: I know that you are not my lawyer and you are not giving me legal advice. I am not taking what anyone says here as professional legal advice. I am just wondering if there are different legal avenues she can explore other than waiting and seeing if it turns out this guy fucked her up long-term.
Also, I accidentally typed "my boyfriend" when I meant "her boyfriend." In case that's confusing, I wasn't there -- I am relying on what she and her boyfriend told me. This is not one of those, "Oh, I'm asking for a friend, ahem" situations. Haha.
posted by AppleTurnover at 10:45 AM on May 13, 2013
Also, I accidentally typed "my boyfriend" when I meant "her boyfriend." In case that's confusing, I wasn't there -- I am relying on what she and her boyfriend told me. This is not one of those, "Oh, I'm asking for a friend, ahem" situations. Haha.
posted by AppleTurnover at 10:45 AM on May 13, 2013
What mibo said. She should definitely talk to more than one lawyer. If she doesn't know any other good lawyers, the New York City Bar Lawyer Referral Service is a pretty good way to get in touch with other lawyers to get that second opinion. Most good lawyers do free consultations too, so it won't cost her any extra to get a second or third opinion.
posted by Geppp at 10:45 AM on May 13, 2013
posted by Geppp at 10:45 AM on May 13, 2013
Steve Vaccara is the go to lawyer in NYC for pedestrians/cyclists who are victims of car crashes. Your friend might want to consult with him.
posted by Pineapplicious at 10:47 AM on May 13, 2013 [4 favorites]
posted by Pineapplicious at 10:47 AM on May 13, 2013 [4 favorites]
I wanted to come back and say that a civil suit (which is your redress here) will take a couple of years.
I got rear-ended in an accident that caused me to lose 2 discs in my back. I went through physical therapy, chiropractic etc. I eventually had injections into my back to alleviate the pain.
I'm good now, but it took about 3 years to settle and collect my money. But it was enough to pay off my bills and buy a condo.
Waiting is worth it and the right thing to do.
posted by Ruthless Bunny at 10:47 AM on May 13, 2013
I got rear-ended in an accident that caused me to lose 2 discs in my back. I went through physical therapy, chiropractic etc. I eventually had injections into my back to alleviate the pain.
I'm good now, but it took about 3 years to settle and collect my money. But it was enough to pay off my bills and buy a condo.
Waiting is worth it and the right thing to do.
posted by Ruthless Bunny at 10:47 AM on May 13, 2013
I am not giving specific legal advice here, but in case you were wondering, what the lawyer is talking about when he mentioned the possible limits on recovery in this situation, was New York's "no fault" insurance law. Whether or not the law's limits apply in this situation requires a detailed examination of the factual situation and possible damages, which is best undertaken by a qualified attorney.
posted by dcjd at 10:58 AM on May 13, 2013 [1 favorite]
posted by dcjd at 10:58 AM on May 13, 2013 [1 favorite]
If this was in NYC my cousin is a good personal injury lawyer there who might be a good second opinion for your friend. I'll MeMail you his contact information.
posted by jessamyn at 11:00 AM on May 13, 2013
posted by jessamyn at 11:00 AM on May 13, 2013
I am just wondering if there are different legal avenues she can explore other than waiting and seeing if it turns out this guy fucked her up long-term.
Notwithstanding your disclaimers, what you are doing is 100% asking for legal advice, which no one here is qualified to provide. The best way you can help your friend is to support her and encourage her to keep pestering her lawyer for answers. If she doesn't understand the answers or wants to be sure she isn't overlooking another avenue, she should get a second opinion.
posted by payoto at 11:01 AM on May 13, 2013 [1 favorite]
Notwithstanding your disclaimers, what you are doing is 100% asking for legal advice, which no one here is qualified to provide. The best way you can help your friend is to support her and encourage her to keep pestering her lawyer for answers. If she doesn't understand the answers or wants to be sure she isn't overlooking another avenue, she should get a second opinion.
posted by payoto at 11:01 AM on May 13, 2013 [1 favorite]
Response by poster: Thanks for attorney recommendations, but my friend is in upstate NY, not NYC.
And also, I am asking legal advice insofar as I was wondering if people would say, "That attorney is exactly right. There is nothing she can do unless her injury persists" or say "No way, my cousin's friend's girlfriend totally sued a guy in NY who hit her and got $8 million and she wasn't even hurt." Or maybe even, "What the police are doing sounds highly irregular/against state law and your friend may want to look at that." I just want to make sure my friend is being taken care of and doing everything she needs to do.
posted by AppleTurnover at 11:03 AM on May 13, 2013 [1 favorite]
And also, I am asking legal advice insofar as I was wondering if people would say, "That attorney is exactly right. There is nothing she can do unless her injury persists" or say "No way, my cousin's friend's girlfriend totally sued a guy in NY who hit her and got $8 million and she wasn't even hurt." Or maybe even, "What the police are doing sounds highly irregular/against state law and your friend may want to look at that." I just want to make sure my friend is being taken care of and doing everything she needs to do.
posted by AppleTurnover at 11:03 AM on May 13, 2013 [1 favorite]
Dang, I reflexively just assumed assumed NY meant NYC. I forgot there's more to this state than this city.
Heres a link to the New York State Bar Lawyer Referral Service. There, you pop in the county and they provide the service from there.
posted by Geppp at 11:11 AM on May 13, 2013
Heres a link to the New York State Bar Lawyer Referral Service. There, you pop in the county and they provide the service from there.
posted by Geppp at 11:11 AM on May 13, 2013
Response by poster: And one other followup question (not trying to threadsit or turn this into a back-and-forth at all):
I think mostly what I was getting at above was civil suit stuff -- suing him for money. But if there's anything my friend can do on the criminal side or needs to know that could help ensure this guy gets charged with something more than a traffic ticket, that would be great. I will have to look up the specific laws in NY, but I feel like reckless driving or negligence of some sort could pile on. I'd like to see this guy's license revoked or him have forced to do something, like community service or driving school, but I'm not sure how reasonable that is. If my friend can do anything to affect the judge's or the town prosecutor's position, that would be useful.
posted by AppleTurnover at 11:17 AM on May 13, 2013
I think mostly what I was getting at above was civil suit stuff -- suing him for money. But if there's anything my friend can do on the criminal side or needs to know that could help ensure this guy gets charged with something more than a traffic ticket, that would be great. I will have to look up the specific laws in NY, but I feel like reckless driving or negligence of some sort could pile on. I'd like to see this guy's license revoked or him have forced to do something, like community service or driving school, but I'm not sure how reasonable that is. If my friend can do anything to affect the judge's or the town prosecutor's position, that would be useful.
posted by AppleTurnover at 11:17 AM on May 13, 2013
I am asking legal advice insofar as I was wondering if people would say, "That attorney is exactly right. There is nothing she can do unless her injury persists" or say "No way, my cousin's friend's girlfriend totally sued a guy in NY who hit her and got $8 million and she wasn't even hurt."
If two or three people said "That attorney is exactly right, she's out of luck" would you tell her to drop it? This is just about the most clear-cut example you can imagine of why it's downright dangerous to be seeking legal advice here.
You are frustrated and you want to help her. That is admirable, and we should all be so lucky to have a friend like you looking out for us, I mean that sincerely. But asking for advice to second-guess what her lawyer is telling her is absolutely doing her a disservice. There are many ways to support her and help her but none of them involve seeking legal advice on her behalf online because you don't trust the answers she is getting from her actual lawyer.
posted by payoto at 11:18 AM on May 13, 2013 [4 favorites]
If two or three people said "That attorney is exactly right, she's out of luck" would you tell her to drop it? This is just about the most clear-cut example you can imagine of why it's downright dangerous to be seeking legal advice here.
You are frustrated and you want to help her. That is admirable, and we should all be so lucky to have a friend like you looking out for us, I mean that sincerely. But asking for advice to second-guess what her lawyer is telling her is absolutely doing her a disservice. There are many ways to support her and help her but none of them involve seeking legal advice on her behalf online because you don't trust the answers she is getting from her actual lawyer.
posted by payoto at 11:18 AM on May 13, 2013 [4 favorites]
Yes, was dropping in to mention Steve Vaccaro. And check out if Streetsblog has any other resources--they are pedestrian/bike advocates.
posted by mlle valentine at 11:19 AM on May 13, 2013 [1 favorite]
posted by mlle valentine at 11:19 AM on May 13, 2013 [1 favorite]
This happened to me in California... someone ran a red light, hit me in the middle of the crosswalk, continued to drive with me on the hood of her car and threw me into oncoming traffic.
She was an elementary school teacher who had driven the same route to work for 15 years and said she just didn't see the light or me on the hood of her car. Lucky for me about 100 other people saw exactly what happened.
I found a personal injury lawyer who wasn't slimy or evil and it worked out.
The first thing she dialed me into was that my auto insurance does a payout if I am struck by a car as a pedestrian! (Geico gave me $1000) to defer medical costs while the insurance companies duke it out. It helped.
I saw a doctor, a chiropractor and a shrink to deal with the weird "near death" experience part. They each wrote a report, my lawyer sued the driver's insurance company for the policy limit.
I signed a deposition.
Her insurance company didn't blink and settled out of court.
My medical expenses were paid and there was a cash payout.
The whole ordeal took about 6 months,
Find a good personal injury lawyer.
posted by bobdow at 11:53 AM on May 13, 2013 [2 favorites]
She was an elementary school teacher who had driven the same route to work for 15 years and said she just didn't see the light or me on the hood of her car. Lucky for me about 100 other people saw exactly what happened.
I found a personal injury lawyer who wasn't slimy or evil and it worked out.
The first thing she dialed me into was that my auto insurance does a payout if I am struck by a car as a pedestrian! (Geico gave me $1000) to defer medical costs while the insurance companies duke it out. It helped.
I saw a doctor, a chiropractor and a shrink to deal with the weird "near death" experience part. They each wrote a report, my lawyer sued the driver's insurance company for the policy limit.
I signed a deposition.
Her insurance company didn't blink and settled out of court.
My medical expenses were paid and there was a cash payout.
The whole ordeal took about 6 months,
Find a good personal injury lawyer.
posted by bobdow at 11:53 AM on May 13, 2013 [2 favorites]
Your friend got the apparently well-known guy's personal information/card. He said to call him. If she's not horribly injured, why not call the guy up and meet up and talk it over? He may be reasonable to deal with here if your friend doesn't resort to a horde of lawyers. He probably has better ones.
posted by resurrexit at 12:22 PM on May 13, 2013 [1 favorite]
posted by resurrexit at 12:22 PM on May 13, 2013 [1 favorite]
You've got MeMail.
posted by deadmessenger at 12:51 PM on May 13, 2013
posted by deadmessenger at 12:51 PM on May 13, 2013
I think it would be a very bad idea to meet up with the guy lawyerless. He has nothing to gain by paying up or acknowledging responsibility in a setting like that, and your friend could accidentally give up some of her rights/etc. If he is locally powerful and has money for good lawyers, why would he make an informal agreement that was advantageous to her? Add to that, his behavior at the scene suggests he is dismissive of the wrongness of his actions and expects the authorities to grant him favors. Meeting with him lawyerless seems just opening herself up to get a worse outcome.
I second that she should look for a second opinion from a reputable lawyer.
posted by LobsterMitten at 1:49 PM on May 13, 2013
I second that she should look for a second opinion from a reputable lawyer.
posted by LobsterMitten at 1:49 PM on May 13, 2013
How could the attorney be correct in saying that one of the things she can sue for is if she's in "long term pain?" There's no way to measure "long term" yet! "Call us in a couple years" they would seem to be saying. Keep shopping for lawyers, feel free to just hand them this letter (or have a spiel written down so you can make the attorneys you call happy that you don't have to reconstruct the story on the spot every time) and maybe get in touch with the firemen who were there in case you need to use them as witnesses.
You might also ask as an aside if the attorney you're talking to has ever seen the inside of a courtroom for a personal injury case, since many PI lawyers work only to the point that they are able to wangle an out of court settlement. You want to be able to threaten to put everybody in front of a judge, but not all lawyers are capable or experienced in this way.
posted by rhizome at 1:58 PM on May 13, 2013
You might also ask as an aside if the attorney you're talking to has ever seen the inside of a courtroom for a personal injury case, since many PI lawyers work only to the point that they are able to wangle an out of court settlement. You want to be able to threaten to put everybody in front of a judge, but not all lawyers are capable or experienced in this way.
posted by rhizome at 1:58 PM on May 13, 2013
IAAL, INYL, TINLA, etc. Just because a lawyer came up with a metric fuckton of cash for a billboard does not mean he or she is a good lawyer. Get a referral from someone you trust. If no one you trust has a referral to a good personal injury lawyer, get a referral to a good lawyer who does another type of litigation. Good lawyers and trusted friends who were happy with their lawyer are probably the best ways to find a good lawyer.
You should also beware of large legal mills of any type, A business model that requires sheer numbers for profit is not necessarily a model that includes great representation. Some places only want a certain kind of case, or the math doesn't pencil out for them. (This sounds like one of those--run from the mill they went to now.) Look for someone whose business model requires that they do good ol' fashioned hard (good) work and can help your friends form reasonable expectations about their case and who can help them meet them.
Your friend should not beanplate the blood alcohol allegations or other facts because they are not necessarily admissible in court or helpful. A good lawyer will explore that aspect of the case, but there may have better ways to obtaining a good result.
posted by Hylas at 2:25 PM on May 13, 2013
You should also beware of large legal mills of any type, A business model that requires sheer numbers for profit is not necessarily a model that includes great representation. Some places only want a certain kind of case, or the math doesn't pencil out for them. (This sounds like one of those--run from the mill they went to now.) Look for someone whose business model requires that they do good ol' fashioned hard (good) work and can help your friends form reasonable expectations about their case and who can help them meet them.
Your friend should not beanplate the blood alcohol allegations or other facts because they are not necessarily admissible in court or helpful. A good lawyer will explore that aspect of the case, but there may have better ways to obtaining a good result.
posted by Hylas at 2:25 PM on May 13, 2013
i am not a lawyer, this isn't legal advice.
Your friend got legal advice, her lawyer told her that she cannot sue unless she has a legally defined serious injury.
Would that be a large sum of money enough for this extremely wealthy man to feel penalized at all?
Again, I don't know for sure, IANAL, etc., but probably not. Unless his car insurance disclaims coverage, your friend would be suing him for damages that would be paid by his insurance company, not by him. He wouldn't even have to hire an attorney--his insurer would cover the cost.
tl;dr if you want legal advice, you need to talk to an attorney. And whatever your friend does, she absolutely should not contact this man and meet up with him.
posted by inertia at 1:08 PM on May 14, 2013
Your friend got legal advice, her lawyer told her that she cannot sue unless she has a legally defined serious injury.
Would that be a large sum of money enough for this extremely wealthy man to feel penalized at all?
Again, I don't know for sure, IANAL, etc., but probably not. Unless his car insurance disclaims coverage, your friend would be suing him for damages that would be paid by his insurance company, not by him. He wouldn't even have to hire an attorney--his insurer would cover the cost.
tl;dr if you want legal advice, you need to talk to an attorney. And whatever your friend does, she absolutely should not contact this man and meet up with him.
posted by inertia at 1:08 PM on May 14, 2013
This thread is closed to new comments.
posted by mibo at 10:40 AM on May 13, 2013 [1 favorite]