Central New York Injury Lawyer Blog

dogI have a love/hate relationship with dogs. I love my dog, but I hate dogs who chase me on my bike or who snarl at me on my runs. When I go bike riding out on the country roads near Geneva, NY where I live, I even carry a small pepper spray canister to defend myself from man’s best friend.

Yes, I protect myself from “unleashed” dogs.  But unfortunately, New York State negligence law does not.  Believe me.  As a NY personal injury lawyer who handles dog bite / attack cases, I know first hand!

The problem in New York – unlike in other states – is that to hold a dog owner liable for injuries, you need to show the owner knew or should have known the dog had “vicious propensities”. If you do, the owner is “strictly” liable to you for your injuries.  That’s all well and good where a dog with a history of biting or attacking bites you, but not much else.

For example, consider this situation: A nice, friendly dog, who has never bitten anyone, is negligently released by its owner onto a busy roadway and darts out into traffic or into a bicyclist, causing an accident. Shouldn’t the injured victim be able to sue the dog owner for his negligence?

Almost two years ago I blogged about a case called Doerr v. Goldsmith where a New York Appellate Court (the First Department) was confronted with those same facts. The five judges voted 3-to-2 that, even when a dog doesn’t have a “vicious” bone in his body, negligently releasing a dog near traffic can be grounds for liability.  I loved that ruling!  That’s why I blogged about it.

But that lovely case has now been undone. Just the other day, the Court of Appeals – the highest Court in New York State – reversed the Appellate Court’s ruling, holding that dog owners cannot be liable for negligently handling or releasing their dogs into traffic. To sue the dog owner, you must show the dog had vicious propensities the owner knew or should have known about, and that this viciousness caused your injuries.  Period!

This is a big disappointment for bicyclists, motorcyclists and even regular motorists. And the rule makes no sense, especially in light of a recent case from the same court (Court of Appeals), Hastings v. Sauve, which held that an owner of a cow – or other farm animal — can be liable for negligently allowing the cow to roam onto a road and cause an accident. Obviously, the cow is not vicious, but still the owner can be held liable. So why not the same rule for dogs? Why can’t a dog owner be held liable for allowing its dog – even a friendly non-vicious one — to run loose and cause a car or bike accident?

The rule just seems so unfair in so many ways. For example, if two people are playing “catch” with a ball near a busy street, and the ball strikes a cyclist, causing him to fall, the players can be held liable for negligence. But if those same players send their dog running across the street, and the dog causes an accident, they can’t be held liable. Does that make sense?  Of course not.

Our Court of Appeals usually gets it right, but this time they certainly did not.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

pedestriancrossingI was glad to read in the news today that the condition of a 15-year-old girl who was struck on Monday by one car and then run over by another, in Auburn, New York, has improved. The girl’s condition has been upgraded from “life-threatening” to “fair” at Upstate University Hospital, according to police.

It doesn’t surprise me that this accident happened on Grant Ave, one of the busiest — and most accident prone – roads in all of Cayuga County. We have represented many car accident victims who were hit on that busy arterial.  The posted speed limit is rarely obeyed there — motorists are in a hurry, rushing between Auburn and Syracuse and all the places in between.

The girl was trying to cross Grant Ave in a rain storm shortly after 9 p.m., near the Metro Mattress store. She was apparently trying to reach the MacDonald’s on the other side of Grant Ave. A driver trying to make a left turn from Grant onto McIntosh Drive struck her. Then, to make matters much worse, a second car ran over her as she lay in the road.

Let’s pray for a complete and speedy recovery.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

 

1-315-253-3293

 

doctor bad.jpgYet another study, reported yesterday in the New York Times, indicates that so called “defensive medicine” — ordering extra tests and performing extra procedures in an attempt to avoid getting sued for malpractice — doesn’t reduce the number of lawsuits. What does drastically reduce medical malpractice claims (besides being a careful and good doctor) is being a GOOD COMMUNICATOR with the patient. That’s because patients rarely sue doctors they like, who treat them with kindness, and who listen to them. Doctors who are liked – because they connect well with the patient — can make mistakes that will often be forgiven. But the same patient wouldn’t think twice about slapping a lawsuit on a cold, distant, non-listening doctor.

I have not seen any similar studies for the legal profession, but it would make perfect sense that lawyers who communicate well with their clients are less likely to get sued. So, fellow lawyers, treat your clients right, listen to them, take the time to explain things to them, joke with them – in sum, win their love! That’s the best malpractice insurance you can buy – and it’s free!

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Injury and Malpractice Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

courtroom-thumb-300x199I read recently about the case of a man charged with attempting to murder his mom by ramming her with his SUV as she sat in her living room. He ran it right through the wall. Why? Apparently he had a financial dispute with her. In my humble opinion, that’s a pretty lame excuse for murdering your mother. And geez, the weapon he chose was pretty bizarre, too.

The guy obviously has a screw loose, or more likely a brain full of loose screws.

The mother, of Mamakating, in Sullivan County, NY, ended up in the hospital with severe injuries. The son/driver, of Bloomingburg, NY, was charged with several crimes, including second-degree attempted murder. (Shouldn’t there be a separate and more severe charge for attempted mom murder?)

Horrible story. But it brings up an interesting issue: Will the SUV’s auto insurance cover mom’s injuries? After all, auto insurance covers auto accidents, right? And this was one hell of an “accident”, right?

Wrong. It wasn’t an “accident”. It was an assault with a vehicle. Car insurance covers only “accidents”, not vehicular assault. If you deliberately cause an accident, that’s no accident, and you have no insurance.

So think twice before you try to run your mom over. You’ll go to jail, and you won’t have any insurance either.

Keep (mom) safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY and Syracuse Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Construction is almost the most dangerous job in America, bested only by mining. And like mining, greed often plays a part in accidents. Companies take cost-saving shortcuts at the expense of safety to try to turn a bigger profit.

Case on point.Last Sunday a 12-ton air handling unit snapped loose from a crane and plummeted 30 stories to the street below in Manhattan. Ten people were injured. Obviously they were using a cable of insufficient strength for the job.

As a recent NYT article points out, this is only the most recent dangerous mishap this year in the New York construction industry. In fact, this year is poised to match 2008 – the year two cranes toppled in New York City claiming 19 lives – as the most deadly construction year in New York history.

This can be explained partly by the fact that there was simply more construction going on in 2008 and this year compared to the years in between. But such an explanation begs the question of whether the accidents could have been avoided.

Let me answer that question: Yes, they could have, and should have, been avoided. And every single one of the worker-victims has a solid construction accident personal injury case, in my opinion.

The NYT article points out the following examples of construction accidents in New York this year. In my opinion, all of these accidents could have been avoided if the construction bosses had insisted that proper safety procedures be followed: (1) A worker falls half a story from a ladder (should have been tied up); (2) Worker falls to his death from scaffolding during an interior renovation in Times Square (proper barriers should have been in place on the scaffold); (3) worker plummets 8 floors through a hole in scaffolding (why in god’s name were they using scaffolding with a hole in it?!); (4) wind blows loose a construction fence meant to protect pedestrians from falling objects, strikes a woman and kills her (why wasn’t the fence more firmly secured?); (5) A large section of flooring collapses during demolition of an apartment building in Brooklyn, causing several workers to be injured (why were workers allowed to stand on interior flooring during demolition work?)

Thankfully, New York has a special law called “the scaffold law” which gives construction workers who fall from heights — or who are struck by falling objects — special rights to sue in court for compensation for their injuries (above and beyond mere workers’ compensation).

Injured construction workers should not settle for workers’ compensation alone. They should contact competent construction accident lawyers — us for example! — to explore a “scaffold law” suit.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Construction Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

car accidentsWho says nothing in life is “free”? Here’s some free legal advice from your Central New York injury lawyer:

Do not — I repeat, do NOT – drop the F-bomb on a cop while he is arresting you for homicidal drunk driving after you have just killed a teenager.

That’s exactly what a Syracuse homicidal drunk driver did at Destiny USA. The crash happened at Hiawatha Boulevard and Solar Streets, at the entrance to Destiny USA. He had just gone through a red light and struck the side of a car carrying two teenagers. The teenage driver was killed and the passenger wounded. When the cops arrived on the scene, he explained the accident – in a drunken stupor – like this: “they pulled out in front of me, (f-bomb) them”. He also told the officer to “go (f-bomb) yourself” when asked to submit to a blood test for alcohol content. He is facing up to 25 years of prison if convicted, but I say they should tag on an extra ten for hubris. The guy has had three drunken driving charges in the past five years.

There was a hearing just the other day to see if the statements he made–including the F bombs — can be entered into evidence against him in his criminal trial. His lawyers argued that they should not because none of the officers read the defendant his rights before the sobriety test or in the ambulance. The judge decided the remarks can be used at trial. Can’t say I disagree with that ruling.

My heart goes out to the families of his many victims. As for the perpetrator? (F-bomb) him!

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

treadmill accident.jpgLast week, Sheryl Sandburg’s (Facebook’s second-in-command) suffered a big loss. Her husband, David Goldberg, died after cracking open his head in a fall off a treadmill. Dave Goldberg was a Silicon Valley giant in his own right, too (digital-music entrepreneur, Yahoo executive). You can read about him here.

But I am not blogging about Mr. Goldberg or his famous wife. Instead, I am blogging about the cause of his death: A treadmill.

Treadmills are the most popular piece of exercise equipment today. Go to any Y or health club and you will see row upon row of them. More than 50 million Americans use them. I am one of them.

But I know I run risks. According to federal statistics, treadmills are not only the most popular piece of workout equipment; they are also the most dangerous. The machine presents two main dangers: (1) risk of falling and (2) risk of getting a body part (usually a finger) caught in the “pinch point” where the belt meets the metal frame.

Treadmills injure about 500,000 people a year. Injuries include broken bones, amputated fingers, and concussions. Boxer Mike Tyson’s four-year-old daughter was strangled to death by a home treadmill’s chord.

One common type of accident happens when, for whatever reason, your feet stop moving forward fast enough. As you slow down or stop, the moving belt starts to carry your feet toward the back end drop off, like a canoe heading for a waterfall. If your feet get pulled off the end, you can get slammed against the floor or a wall.

You can fall and get hurt on a treadmill in a zillion ways. Just do a search in youtube for “treadmill accidents” and you’ll see some funny treadmill accidents, but also some gruesome ones.

The solution to the treadmill risks is not necessarily to give up the treadmill. After all, getting the exercise probably increases your life expectancy. The solution is to use the treadmill with focus and responsibility. The main culprit is distraction. To be safe, you need to really concentrate on what you are doing.

Even if you are very careful, though, sometimes it’s the treadmill’s fault. The major defects in treadmills that cause injuries are: (1) defects in the design of the treadmill (example: a line of treadmills designed without a “kill” switch that shuts off the machine when the user falls), and (2) Manufacturing defects (a problem not with the design, but with a particular treadmill as it came out of the assembly process).

Sometimes health club owners cause treadmill accidents by failing to properly maintain treadmills or warn customers of problems the treadmills have exhibited. For example, a few years ago a jury compensated a man to the tune of $9 million for permanent disabling spinal injuries suffered when the treadmill he was running on suddenly stopped, throwing him forward head first into the display panel. The jury pinned 90% of the fault on the health club operator (who apparently was aware of the problem but failed to take the treadmill out of service or warn the customer) and 10% on the manufacturer.

Treat your treadmill with respect. Realize that, like a car, it is a dangerous piece of machinery. Then focus on what you are doing. Don’t get distracted. If you are using a treadmill at a gym, make sure it is a reputable place with a good equipment maintenance program. Now have fun on your run.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

lane splitting motorcycle.jpgIt’s motor cycle season again. While I don’t have the statistics for last year yet, I know that a total of 4,381 motorcyclists died in U.S. crashes in 2013. That’s about 30 times the number of people who died in car crashes, even though many more cars than bikes travel our roads.

Many of those deaths are not the bikers’ fault; four-wheel drivers just don’t see motorcycles. They then cut them off or come blasting out from stop signs into their right of way.

But of course many bikers cause their own death or serious injury, too. One way to do it is called “lane-splitting”. That’s where you ride through the space between cars in parallel traffic lanes. If a cop catches you, it’ll cost you 2-points on your license. If a car “catches” you, it could cost you your life.

The practice is outlawed for a reason. A motorist could change lanes into you, or open his door and hit you, or drift into you and strike you, all because your sudden presence between lanes is so unexpected. As you pass those slow or stopped vehicles, you will also pass thorough their blind spot, so when they want to change lanes, they may not see you.

Hey motorcyclist. Don’t lane-split. If you do, and you get clobbered, I’ll try to help you prove the automobile driver was at fault — at least partly. Yes, I’ll be your New York motorcycle accident lawyer. But it will be nearly impossible to get you a clean 100% victory in Court if you lane-split. Some of the fault will lie with you.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central and Syracuse NY Motorcycle Accident Lawyer
Michaels & Smolak, P.C.

1-315-253-3293

drunk teen.jpgFraternity hazing stories are legendary for their outrageous silliness and, unfortunately, their sometimes tragic outcomes. Pledges are sometimes required to consume large quantities of alcohol, do embarrassing and humiliating things in public, face harsh deprivations, weather inclemency, or paddle beatings.

This topic is of interest to me now that my own kid is off to college this year. And he wants to join a fraternity. Am I worried about hazing? You bet.

I don’t have too look far to find stories that make me lose sleep. Cornell University, right down the road from my office in Auburn, New York, has had its share of hazing tragedies. In 2011, for example, some pledges were blindfolded and bound at the wrists and ankles. They were then driven to a town house somewhere on campus where they were drilled with Fraternity’s history trivia questions. A wrong answer triggered forced shots of vodka. One of the pledges – who seems to have been a poor Fraternity historian — passed out, was loaded into the back seat of a car, and brought back to the Frat house where he was dumped on a couch to “sleep it off”. The next morning the cleaning crew found him dead, choked on his own vomit.

I could tell dozens of similar stories. For example, in one high-profile case, which was again recently in the news for the criminal sentencing of one of the hazers, a drum major in Florida A&M’s Marching 100 was beaten to death during a hazing on the band bus.

Hazing is common on American campuses. Several studies have found that approximately 55 percent of students who join fraternities, sororities, sports teams or other student groups experience hazing. Injury and death from hazing are not an every day experience, but they are not uncommon either. There have been over hazing 115 deaths since 1970.

Why do fraternities haze? As long as there have been human societies, there have been initiation rites. Something deep inside our human psych seems to require groups to impose suffering on would-be members. Somehow, the collective suffering of the newbies acts as group bonding glue.

The Greek system is part of college history. Like all histories, it is brimming with the good, the bad and the ugly. While Greek life has served as fertile ground for friendship and leadership development, it has historically also fostered racism, sexism and violence.

And of course hazing incidents spur personal injury and wrongful death lawsuits. Fraternity hazing cases pose complex legal hurdles. There is usually a broad net of blame to cast. The college is often faulted for turning a blind eye to fraternity excesses. The national fraternity chapters are signaled out for failing to properly supervise their local chapters. The fraternity brothers involved in the hazing are often held not only liable in civil lawsuits, but are tried criminally on manslaughter or criminal negligence charges. And the finger of blame points toward the victim as well for having voluntarily participated in the hazing activities.

My kid is dead-set on joining a fraternity. All I can do is tell him my concerns, and hope and pray he does the right thing, both as a pledge and later as a fraternity brother. It takes a lot of self-confidence to resist peer pressure when pledging activities cross that fine line between fun and danger. May he make good, lifelong friends and memories. But may he also make safe, smart decisions.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

You’ve probably already seen this video:

First we see a Southern California man fleeing on horseback from a posse of deputy sheriffs in a dessert landscape. How quaint. That could never happen in New York. Then we see the deputies catch him and beat the s—- out of him. Now that feels more like New York!

Back to Southern California. Those deputies were caught red-handed, on camera, beating their victim up. Because they were caught on camera, the victim got a $650,000 settlement within days of the beating.

But what if a camera had not been there? What settlement would he have gotten then? Zero. The deputy sheriffs’ story: “The suspect attacked us, would not let up, and so we had to defend ourselves”. No one would have believed the victim. Everyone would have believed the guys in uniform. So I am so glad it was caught on camera.

But wait, did the victim get rewarded for committing a crime? The deputy sheriffs had gone to his home with a search warrant for an identity-theft investigation. He then fled. The fact that he tried to escape may, of course, lead one to conclude that he was guilty.

But whatever crimes he MAY have committed, I am glad he got compensated for the unjustifiable beating he took. Not because I want him to get the money, but because I want the County to pay it. The financial sting of that payment will force the County to weed the bad cowboys out of its police force.

New York has bad cowboys in uniform as well. They use excessive force here, too. Not all cops. Some. Where the victim is lucky enough to have the beating caught on film, the case usually results in a large settlement or verdict here as well as in Texas. But when there is no camera, the police officers’ version of events will usually be believed and therefore there usually won’t be any settlement or favorable verdict.

That’s why the smartphone camera is the best thing that has happened to the American Justice system in a long time. In fact, in my opinion, law enforcement everywhere should be required to wear body cameras. Use of force by police officers declined 60% in first year body cameras were introduction in Rialto, California.

I am optimistic that this is in fact the future of law enforcement. Which means I am optimistic that police brutality will soon be only an ugly part of our past.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293