Central New York Injury Lawyer Blog
The New York State Trooper dutifully pulled his patrol car over for a distressed vehicle on the shoulder of the New York State Thruway in the Town of Brutus, Cayuga County, New York. He then got out, approached the car, and—– was struck be a flying wheel. A flying wheel? Yes, one that had apparently fallen off a passing vehicle.
Rendered unconscious by the giant frisbee, he was airlifted to SUNY (Upstate) hospital in Syracuse. Yesterday the New York State Troopers released a photo of the guilty tire (a kind of tire mug shot – shown here at left) in the hopes that someone will recognize it and blow its owner in. Judging from its size, and its rust, it appears to be the spare for some kind of small truck.
What if they find the tire’s owner? Will he be legally liable to the Trooper in a New York personal injury lawsuit for medical expenses, lost income and pain and suffering? Probably. Here’s how the law works.
Assume the tire’s owner says, “gee, I have no idea how that tire came flying off of my truck. I secured it down real good just last week”. Oh yeah? The fact that it flew off the truck shows that he did NOT secure it well enough.
Recently I blogged about the legal doctrine of “res ipsa loquitur.” When a tire or other object comes flying off a vehicle for no good reason, that makes for a classic “res ipsa loquitur” case, which means the owner is liable. In fact, there are several New York personal injury cases just about exactly on point: Pollock v. Rapid Indus. Plastics Co., Inc.113 A.D.2d 520, Spica v. Connor, 56 Misc.2d 364, Polk v. Roger Sherman Transfer Co., 3 A.D.2d 882.
But wait a minute. Why should this Trooper be able to bring a New York accident lawsuit for medical expenses and lost wages? Won’t his workers’ compensation cover that?
Yes, it will (all his meds, and most his lost wages). But if the trooper decides to sue the guy responsible for the loose tire for pain and suffering compensation, he had better also sue for the lost wages and medical expenses. Why? Because workers’ comp has a “lien” on any recovery he gets from his lawsuit against that guy. In other words, comp gets to take back from the Trooper’s lawsuit award (be it from a settlement or verdict) all of the comp payments it made for the Trooper’s medical treatment and lost wages. So if the Trooper doesn’t sue for the lost wages and medical expenses, comp will take its comp payments back out of his pain and suffering award. But if he includes in his lawsuit a claim for the lost wages and the medical expenses, then he will be able to pay comp back with the money from those awards, and will be able to keep 100% of his pain and suffering compensation, plus whatever lost wages were not covered by comp.
In the end, the innocent trooper acts as a kind of “pass through” between the guilty tire/truck owner who actually caused the injury, and the innocent workers’ compensation insurer. The innocent injured trooper gets to keep his pain and suffering award, but the medical expenses and lost wages “pass through” him from the guilty guy (or his auto insurer) to the innocent workers’ compensation insurer. Sound fair? I think so.