Procedural Issues That Could Hurt Your Brooklyn Personal Injury Case

Posted in Personal Injury on May 30, 2023

Civil procedure is the rules that courts use to conduct civil trials, including personal injury cases. Cases filed in federal courts are subject to the Federal Rules of Civil Procedure. State court cases filed in New York follow the New York Civil Practice Law & Rules.

Several procedural issues could significantly impact your personal injury case in Brooklyn. Three common procedural issues that could hurt your Brooklyn personal injury case are:

Failure To State a Claim

Failure to state a claim is a defense a defendant can allege even if all of the allegations in your personal injury complaint are true. It is one of the reasons listed in Rule 3211 as grounds for a motion to dismiss the case.

A cause of action is a set of legal elements that must be present for the court to grant a remedy for the plaintiff’s damages. The specific legal elements required in a case depend on the type of civil case filed.

Most personal injury cases are based on negligence claims. The required elements of negligence are:

Legal duty of care
Breach of duty
Causation
Damages

You must prove each of the above elements to win a personal injury case. If you fail to prove any of the elements, the defendant is not liable for damages. Therefore, even if you prove the at-fault party owed you a legal duty of care and breached the duty of care, you cannot receive money for your claim if you cannot prove the party’s breach of duty caused your injuries.

Missing the Statute of Limitations

A statute of limitations is a deadline for filing a lawsuit. The statute of limitations for many personal injury cases in Brooklyn is three years from the injury date. However, there are exceptions.

For example, the statute of limitations in medical malpractice cases is typically two years and six months from the date of malpractice or the date of the last continuous treatment by the defendant. On the other hand, the statute of limitations in wrongful death cases is two years from the date of death.

Other exceptions could change the statute of limitations, including the parties to the case. Therefore, you should contact a Brooklyn personal injury lawyer as soon as possible after the injury. Failing to file a lawsuit before the statute of limitations ends means you give up the right to pursue a claim in a court of law.

Allegations of Contributory Negligence

Contributory negligence is a legal theory that could bar the injured party from recovering compensation for their damages. The types of contributory negligence include:

Pure contributory negligence bars an injured party from receiving damages if they are partly to blame for the cause of their injury. Any amount of fault for the injury bars recovery.
Pure comparative fault is the opposite of contributory negligence. The injured party could be 99% to blame for causing their injuries and receive 1% of their damages.
Modified comparative fault sets a bar rate of 50 or 51 percent; however, it does not bar an injured party from compensation for being partly to blame. The percentage of blame cannot exceed the bar rate.

New York uses a pure comparative fault standard. If you are 50% to blame for causing your injury, your compensation is reduced by 50%. Likewise, if you are 10% to blame, you could receive 90% of your damages.

Insurance companies use allegations of contributory fault to avoid liability for personal injury claims. Insurance adjusters ask questions intended to obtain responses that could be misinterpreted as admitting or suggesting fault. Allowing your Brooklyn personal injury lawyer to handle all communications with the insurance company is best.

Protect Your Legal Rights After an Accident or Personal Injury

The steps you take after an injury or accident can help or hurt your Brooklyn personal injury case. Steps you can take to protect your rights and improve your case include:

Report car accidents to the police immediately by calling 911. Report a slip and fall accident to the property owner as soon as possible.
Never admit fault or apologize for causing an accident or injury. Do not discuss the accident with anyone at the accident scene, except law enforcement officers.
Make a video and take pictures of the accident scene to document evidence. Ask bystanders and witnesses for their contact information.
Seek immediate medical treatment for injuries. Delays in medical care can hurt your case by raising doubts about whether the accident caused your injury and whether you were injured as severely as you claim.

Contact a personal injury attorney in Brooklyn to discuss your case. An attorney helps you avoid making mistakes that could hurt your case. Experienced lawyers also understand the procedural issues that could impact your case.

Contact Our Personal Injury Law Firm in Brooklyn, NY

If you need legal assistance, contact the Brooklyn personal injury lawyers at Law Offices of Jay S. Knispel Personal Injury Lawyers at your nearest location to schedule a free consultation.

We have two convenient locations in New York:

Law Offices of Jay S. Knispel Personal Injury Lawyers – New York City Office
450 7th Ave #1605
New York, NY 10123
(212) 564-2800

Law Offices of Jay S. Knispel Personal Injury Lawyers – Brooklyn Office
26 Court St Suite 2511
Brooklyn, NY 11242
(718) 802-1600