September 2013 Punitive Damages Update

September 2013 Punitive Damages Update

New York now has a new notice of claim statute in effect that is designed to standardize the requirements of the injured when pursuing a claim against a municipality.  The Uniform Notice of Claim Act is intended to regulate the many unwieldy rules that have developed when dealing with claims filed with the state’s numerous municipalities, public benefit corporations and various authorities.  The act went into effect in June 2013.

The new law does not modify or eliminate any of the current rules for filing notices at the local level, it does however, add the Secretary of State as an additional agent of service for filing the notices of claims.  Under New York law, as a precondition to a suit or claim with a municipality, a notice of claim must be filed with that entity within ninety (90) days of the incident.  The purpose of this is to give the municipality notice of a defect so that it can investigate and/or remedy a dangerous condition.  Most lay persons are completely unaware of this extra step in a claim which does not apply to private entities.  As many personal injury practitioners know, sorting out which public entity is responsible for the source of your client’s injury is often a difficult task.  As a result, many attorneys use a shot gun approach and serve many entities with the notice.  Unfortunately, this act does nothing to help with that problem.  The law requires entities to designate the name and address of an individual who is authorized to accept forwarded notices on the entities behalf; however, it is still up to the claimant to identify the right municipality to file with.

The new law does help in situations where the correct entity has been served but, at the wrong location as now you can serve the Secretary of State.  Prior to this law, service at the wrong location could be a disaster if the much shorter one (1) year and ninety (90) day or two (2) year (wrongful death only) statute of limitations has expired.  An additional change is that all entities will now have the same statute of limitations period and it cannot be shortened.

Service upon the Secretary of State must be made by personal delivery and is complete for the purposes of complying with the service deadline upon receipt. The secretary must then forward the notices within ten (10) days to the entities named in the notice by certified mail, return receipt requested.  Currently, there is no fee associated with filing a Notice of Claim against a public entity in New York.  The fee for a Notice of Claim filed through the Secretary of State will be up to $250.00 which is split between the state and the municipality served.

To comply with the Act, all entities entitled to the benefit of a Notice of Claim are required to file a certificate with the Secretary of State with instructions regarding where to forward notices that are served.  Failure to provide instructions to the Secretary of State will not invalidate service that is made upon the secretary, but will cause the offending entity to forfeit its share of the filing fee that the secretary is authorized to collect.  This is a nice incentive for the municipalities to keep their information current with the Secretary of State.

Probably the nicest part of the law for the plaintiff is that the law permits the entire fee to be a taxable disbursement, so can be recovered by a plaintiff that wins on a motion for summary judgment or at trial.  Although many cases resolve via settlement, this is a nice way of getting back some money in an already expensive area of the law for the plaintiff.  To read the entire law, please click here.

The Court of Common Pleas of Lackawanna County finds that punitive damages are not available to a plaintiff in an automobile crash when the negligent driver may be distracted by looking at their GPS while driving without evidence that the driver was actually looking at the moment of impact.

Judge Nealon found in Rockwell v. Knott and New Prime, No. 12 CV 1114 (Lack Co. Aug. 13, 2013), that summary judgment was appropriate on the issue of punitive damages when a tortfeasor was driving while looking at a GPS device rather than the roadway and, as a result of not looking at the road, the defendant caused a crash.

Typically punitive damages are extraordinary damages and only available in extreme cases where a party does, or fails to do something, so patently egregious that the court system deems it necessary to punish said party and deter others from doing something similar.  This is often an issue in drunken driving or other alcohol related cases.

In this case of first impression, the court held that looking away from the road at a GPS program on a smart phone to the point of distraction may be reckless conduct to support a punitive damages claim, however, the evidence in this particular case was lacking any proof that the Defendant driver was actually viewing the GPS as he made a turn and caused the crash.  As such, that portion of the plaintiff’s claim was dismissed.  However, it is important to note that this case does leave open the idea of punitive damages for distracted driving if the facts fit.

To read the full opinion, please click here.