Daniel A. Kalish, Personal Injury Law Blog: 2009

Monday, August 17, 2009

Strict Liability for Injuries from Animals

The law in New York State as it relates to dog bites and other injuries caused by animals is that the owner of the animal is strictly liable for injuries caused by the animal if it can be established that the animal had a vicious propensity and that the owner knew of should have known of such propensity. This standard was established by the Court of Appeals (the highest court in the State of New York) in 2004 in the case of COLLIER v. ZAMBITO. Even attorneys who practice in the area of personal injury, but who may not have much familiarity with cases of injuries caused by animals, often do not realize that the case of an animal attack is not one of negligence, but rather strict liability. As a result, there are an unfortunate number of cases which result in an unfavorable outcome to the plaintiff, not because the case is without merit, but because the pleadings in the case were deficient. It is imperative that one injured by a domestic animal consult with an attorney experienced with the law pertaining to such injuries, and familiar with the recent case law.

Vicious propensity of an animal can be proven without showing that the animal, usually a dog, has previously bitten someone else. Contrary to what is commonly believed, THERE IS NO ONE FREE BITE RULE IN NEW YORK!!

Thursday, July 30, 2009

Nothing Independent about so-called IME's

When you have either a No-Fault claim, a Workers' Compensation claim, or a negligence lawsuit, the insurance carrier will likely want to have you examined by a doctor of their choice, sometimes by more than one doctor. They will generally want to have you examined by a doctor in the same specialty(ies) as the doctor(s) treating you for your injuries. The insurance carriers and defense counsel refer to these as IME's, or Independent Medical Examinations. This term is quite misleading, as there is nothing independent about the examination(s) performed on behalf of the insurance carrier. In reality, the insurance carrier either designates the doctor(s), or uses a company which has as its sole reason for being, the scheduling of insurance examinations and furnishing the reports of the examinations. The doctors who perform examinations for the insurance carriers, either directly, or indirectly through the companies that exist to set up the examinations, know that their fee is paid by the insurance carriers. They also know that if their reports too often state that the claimants in an insurance claim, or the plaintiffs in a lawsuit, have significant injuries as a result of the accident that is the subject of the claim or lawsuit, the insurance carrier will not want to use them for reports in the future. These doctors receive handsome fees for performing these insurance examinations and writing reports. Obviously, the examination is the furthest thing from an INDEPENDENT examination.

Words have meaning. If an attorney for a plaintiff goes along with the defense attorney and the insurance carrier calling the examination performed for the defense in a lawsuit, an "independent medical examination", that sets the wrong tone, and lends credence to the report that it should not be given. That is why many plaintiffs' attorneys are calling these examinations Defense Medical Examinations, or DME's. This trend has caught on with many of the judges, who know full well that there is nothing independent about the DME's. Some judges have even been known to lecture defense counsel when defense counsel refers to an "IME", pointing out that the examination is not independent.

The once ingrained term, IME, or Independent Medical Examination, is being challenged, and shows signs of falling by the wayside. This is a positive development, and has come about because some people have insisted on accuracy and honesty in calling these examinations what they really are!

Tuesday, July 28, 2009