texting and driving
I blogged sometime ago about a New Jersey case where a Court found that someone sending a text to someone else who he knows is driving can be held liable — along with the driver — for the resulting crash and injuries caused to others. What was new was the Court extending liability to  include the outsider –  who may be thousands of miles away — who is participating in the texting with the driver.

A Pennsylvania court soon followed New Jersey’s lead.  In that case, a volunteer firefighter was stopped to make a turn on his motorcycle. A texting SUV driver rammed him from behind, causing him to die. The man’s family sued not only the driver, but also the person who had sent the driver the text.  (The police obtained a search warrant and found the text still open on the texting driver’s phone).  A Pennsylvania judge  allowed the legal theory that the sender of the text was also liable to go forward to a jury.

In Pennsylvania, however, sending texts to a driver can now be a crime.   Last week Gov. Tom Wolf (D) signed a bill that criminalizes the practice, and allows courts to mete out penalties of up to five years behind bars for a non-drivers texting with drivers involved in  fatal crashes.  So we are talking not only about civil liability, but criminal liability as well.

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We did it again!  Once again, Michaels & Smolak has been named in the annual U.S. News & World Report “Best Law Firms” in the practice area of both Personal Injury Law and Products Liability.  Is this a small honor? No it is not. The Michaels & Smolak Law Firm was the only personal injury law firm anywhere between Syracuse and Rochester (not including those two cities) to be named to this nationally recognized 2017 directory of top personal injury law firms in the United States.  Moreover, we are one of only three Syracuse area firms to be ranked in the “first tier” of personal injury law firms in the directory.

Awards are nice.  It sure is great to be recognized for our hard work and success.  But in the end “awards” are not the “rewards” we seek. Winning for our clients is its own reward.

The four Michaels & Smolak lawyers are so proud of our team’s incredible successes over the years.  Hard work and authentic concern for our clients have paid off.  Our support staff is the best!  And of course we could never have reached this high place without amazing referring attorneys and clients who put all their trust and confidence in us. To all of you, we give you our eternal thanks.

banana peelMy mom is turning 89 in about a month.  Her short-term memory is tarnished, but otherwise she is doing just fine.

I worry about her, though.  One thing I worry about, especially with the winter months now approaching, is her falling.  As a personal injury lawyer, I see a lot of slip-and-falls, trip-and-falls, and all other kinds of falls!  So I know first hand the kind of serious harm a fall can cause.

So far mom has avoided any falls at all in her senior years.  Will her luck continue?

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Car accident fatalities are on the rise.  Why?  You probably know (especially if you regularly read this blog):  Smart phone texting and social media.  Drivers, especially young ones, are crashing as they gaze down at their phones.  Sure the texting driver is liable, but is anyone else?  What about the friend that was texting to the driver and who knew he was driving?  An appellate court last year in New Jersey said, yes, that guy can be liable, too.

But here’s a new twist:  What about Apple or other companies that make the phones that are distracting us?  What if I told you that Apple has a powerful technology that can detect when the person using the phone is driving a car, and that the same technology can block access to the phone when that is happening?  Shouldn’t Apple be liable for having failed to implement that technology?  After all, it is now well known that social media is an “addiction” and some of those who are glued to their screens can’t seem to help themselves from “sneaking a peek” even while driving in heavy traffic.

Can Apple, or any of the other smart phone producers, be held liable?  That’s what a new lawsuit in Texas will help decide.  The product liability lawsuit, filed against Apple by families of the victim of a car crash caused by a texting driver, contends that Apple (1) knew its phones would be used for texting while driving, (2) had gone so far as to design technology to block drivers’ phones from being operational, but (3) did not deploy the life-saving technology.

nursing home woman
There is some good news for nursing home abuse victims and their families. The Health and Human Services Department has passed a rule barring nursing homes and assisted-living facilities that receives federal funding from requiring their residents to sign “arbitration” clauses.

I have already blogged about why arbitration clauses are not good for consumers, especially consumers of medical services.

Nursing homes prefer arbitration to court because the arbitration associations they use are heavily stacked with pro-nursing home arbitrators who are afflicted by something called “repeat player bias”. What’s that?  You might go up against a nursing home in arbitration one time in your life, but the nursing home and all its allies are there repeatedly defending claims brought by others like you.  The nursing home is thus a “repeat player”.   Repeat players get cozy with the arbitrators.  If the “repeat players” don’t like certain arbitrators “tendencies”, they refuse to select them or otherwise sideline them. The arbitrators know who butters their bread. If they want to stay in the arbitration business, they had better please the “repeat players”. And that ain’t you!

Car Wreck with Smashed Hood and Ambulance
Ok, maybe “secret” is not the right word, but I am always surprised by the vast number of people who don’t know this simple safety tip.  Here it is (drum roll please):  When waiting to turn left at a red light or while waiting for oncoming traffic to clear, do NOT turn your wheels left until you are actually going to turn.  Wait with your wheels straight.

The reason should be obvious, but just in case it isn’t, there are two very unpleasant things that can happen to you if you are rear-ended with your wheels turned left:

  • You can be pushed into oncoming traffic and get clobbered by an oncoming vehicle

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This summer, a 28 year-old man was driving along Owasco Street in Auburn, New York when, for no apparent reason, he drove off the road and smashed into a tree.  When the police arrived on the scene and interviewed him, they learned what had caused the crash.  Was he talking on his cell phone?   Nope.  Texting?  Guess again.  Answer:  He was playing “Pokemon Go”.  Completely immersed in the game, he forgot he was driving a car and crashed into the tree.

For those of you who don’t know about Pokémon Go, it is a HUGELY popular game among Millennials played in “virtual reality” on a smart phone.  The game allows its users to travel around looking for “Pokémons” (the name in Japanese means “pocket monsters”), capture them, and then use them to conquer Pokémon “Gyms” (arenas). Players hatch Pokémon “eggs” by walking while playing.  Players need to go near “Pokéstops”, which are landmarks where they can pick up things to advance in the game.

The car accident made national news and was a wake up call to local police regarding the dangers of the new “hit” game (pun intended). In the wake of the crash, Auburn police offered the following advice to Pokemon Go players:

Little girls are having fun in adventure park
If plunging toward the ground at rollercoaster speeds, like a hawk swooping toward a rabbit, is your idea of fun, then a zipline adventure might be for you.  But if you’d rather end up like the hawk (happy and satisfied) than like the rabbit (dead), read on!

Zipline popularity is on the rise! And as with other adventure sport on the rise, serious injuries are rising along with it.  Just last year around 4,000 people (mostly children and teens) were treated in U.S. emergency departments for zipline injuries. That’s nearly 10 per day!

Falls account for three quarters of the injuries, and collisions with trees or other structures make up most of the others. Many injuries result from improper backyard installations (by good ol’ dad). Accidents are fairly common at challenge courses, canopy tours, summer camps and parks as well.

Rear-view of a young man hitchhiking on the side of the road
This fall your Central New York personal injury lawyer will again — for the 9th straight year — give his annual “CLE” (continuing legal education) class to fellow New York personal injury lawyers across New York State.  Once again I will be lecturing on the topic of governmental liability for causing personal injuries.  In other words, I’ll talk about how to hold the State and its various sub-divisions (counties, school districts, villages, towns etc.) liability for negligently causing personal injuries.  Each year, the New York State Trial Lawyers Academy invites me to do so.  I am invited to speak to rooms full of New York personal injury lawyers in Buffalo, Rochester, Syracuse, Albany, Manhattan, Queens, Long Island and more.

Why?  Because I have been fortunate enough through my work to become seen as one of the top experts in this field of law in New York State.  My articles on the subject have been published in New York’s most important law journals and magazines.  New York State judges sometimes cite to my work when they decide cases.

Suing governmental entities and agencies such as New York State or its cities, counties, school district, villages and towns is very different from suing a private wrongdoer such as a car driver or a hospital or a business.  The procedure is different, the time deadlines are different, the things you can sue for are different, and the defenses that can be raised are different.  You name it, it’s different.

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