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.

Happy Senior Man Driving his car
One of the most difficult conversations to have is with a parent, grandparent or elderly spouse who has – through aging or age-related losses – become a danger to others on the road is the “give-up-the-car-keys” conversation. In the U.S.A., we have a deep emotional attachment to driving.  Driving equals freedom. When the elderly consider this loss of independence, particularly in rural and sub-urban areas where good public transportation is lacking, they will resist giving up the keys even when they recognize their own physical or mental barriers to safe driving (which they often don’t). When this happens, what is a son/daughter/spouse to do?

First, let’s be clear on the legal duty.  The family member of an elderly person who may be unfit to drive has no legal duty – or even the right — to take the keys away (unless they have legal guardianship of the elderly person).  But family members have the right – but not the duty — to report the elderly family member’s suspected inability to safely drive to the Department of Motor Vehicles (DMV). From there, DMV will take over.

But should you snitch on grandma?

thYes, once again all four of the lawyers here at Auburn New York’s premier personal injury and medical malpractice law firm have been included in this most prestigious legal directory, the 23rd (2017) edition.  They have been selected for both the “personal injury” and “product liability” litigation categories.

According to the publishers of “Best Lawyers in America”, inclusion in Best Lawyers is “based entirely on peer-review and employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services.” Best Lawyers asks voters – which consist only of other lawyers and judges who are named Best Lawyers – the question: “If you were unable to take a case yourself, how likely would you be to refer it to this nominee?”

The American Lawyer magazine – one of the nation’s preeminent law magazines – describes the Best Lawyers directory as “the most respected referral list of attorneys in practice.”

thCentral New York personal injury lawyers like me have a tough job.  We have to convince a skeptical jury that our client’s injuries are real and significant. Most injuries are fairly “invisible”.  It doesn’t help that most pain and limitations in movement do not appear on x-rays or other films.  Unless the injury is very visible and obvious – like an amputated arm — most jurors start out with the preconceived notion that the plaintiff is either faking or exaggerating her injury to get money in court.  (Actually, this is very rarely the case, and is never the case when we at Michaels & Smolak present a plaintiff to a jury).

To present our clients’ injuries to the jury, we of course must elicit testimony from witnesses who have seen, first hand, the real life consequences of the injuries.  Such witnesses include not only the plaintiff herself and her immediate family members, employers, and others who have witnesses how the injury has changed her life, but also medical doctors who have performed surgery or treated her.  All these witnesses bolster the veracity of the injury.

The insurance companies we are up against, on the other hand, hire their own doctors to examine the plaintiff and to testify regarding the injuries.  Naturally, since these hired-gun doctors are not in the business of treating the injured plaintiff, but in supplying testimony paid for by the insurance company, their testimony tends to be biased against the plaintiff.  Their “job” is to try to minimize the injury. The examinations they perform on plaintiffs are misnamed an “Independent Medical Examinations” (“IMEs”) and the doctors who performs them are sometimes called “IME” doctors.  On the plaintiffs’ side, we prefer to call these examinations “Defense Medical Examinations”, or “DME’S”, since there is really nothing “independent” about them. (Read my prior post about IME’s).

cancer25n-2-webI could write about the horrendous injustice of the current New York medical malpractice Statute of Limitations law myself, but never so eloquently as Elissa McMahon, one of the countless victims of the current barbaric statute-of-limitations rule and cheerleader for the proposed bill (“Lavern’s Law”) which would end the injustice:

Why We Need Lavern’s Law

By: Elissa M. McMahon

9898528395_8f02b005ab_bUFED-Touch-e1460561917755
I have blogged about texting while driving so many times I have lost track.  (Though I never blog while driving.  Just thought I’d mention that!)

This is not just another nag-post about the dangers of texting while driving (though it is that, too). It’s about a new proposed law and a new technology that may allow the police to “catch” driving texters and prosecute them in the same way they do drunk drivers now.

As you know, most states have banned texting (or even holding a device with one hand) while driving.  Some States have spent loads of money on  public service campaigns aimed at getting drivers to refrain from texting behind the wheel.   If you are in New York, you have probably seen the “it can wait” ads, as well as the new signs on the Thruway announcing “text stops” (formerly “rest stops”).  See photo above left.

Bicycle accident, wheel in front of car low angle shot, focus on car Lenklypse 2012
I have been blogging recently about how auto insurance protects bicyclists who are injured by automobiles.  For my previous blogs on this subject, click here and here.  In my last blog post, I discussed what remedies a bicyclist hit by a car has when the car either leaves the scene and cannot be identified (hit-and-run vehicle) or is uninsured.  I said that the injured cyclist can claim both no-fault  (basic medical expenses and lost wages up to $50,000 limit) and “uninsured motorist” benefits (pain and suffering compensation and any medical expenses and lost wages no-fault that go beyond the no-fault limit up to $25,000) from his or her own auto insurer or, if he does not own a vehicle, from the auto insurer for any relative who lives with him or her.  And as I discussed in the previous blogs, if the injured cyclist has Supplemental Underinsured Motorist coverage in his auto policy, he will have even higher levels of compensation available.

Today I am going to discuss what happens in the same scenario, but where neither the cyclist nor  anyone who resides with him owns a vehicle, and thus there is absolutely no auto insurance available.  Is the injured cyclist completely without a remedy?

No!  At least not in New York State.  And here’s why:

Bicycle accident, wheel in front of car low angle shot, focus on car Lenklypse 2012
I blogged just the other day about four ways auto insurance can protect you if you are hit by a car while on your bicycle.  Actually, there is a fifth way I did not tell you about.  Here it is:   Hit-and-run insurance, a/k/a “uninsured motorist” coverage.

It’s pretty unusual for one motor vehicle to strike another one and take off from the scene of the accident.  Even if that happens, the hit-and-run driver is likely to get caught if he takes his car in for repairs.  The police will be canvassing local body shops and repair shops for cars that match the description of the hit-and-run vehicle.

But things are different when a car strikes a bicycle.  There is usually little or no damage at all to the car (although the bike and cyclist are crushed!).  The driver can easily just drive away.  For example, a terrible car-on-bike hit-and-run happened a few years ago right near my hometown in Geneva, NY. The hit-and-run driver was eventually caught and prosecuted, but the bicyclist ended up losing his leg.

Bicycle accident, wheel in front of car low angle shot, focus on car Lenklypse 2012
I know it seems strange that auto insurance can protect you while you are on your bicycle, but believe me, it really does.  To be precise, there are four ways NY auto insurance can protect you if you are struck by an automobile while on your bike.

First, New York’s so-called “No-Fault Law”, a/k/a Mandatory Personal Injury Protection (“PIP”) (Article 51 of New York Insurance Law) requires that the insurance on the vehicle that strikes a pedestrian or a bicyclist provide insurance coverage to the injured cyclist/pedestrian up to a maximum of $50,000 in medical expenses and lost income, regardless of whose fault it was.

To benefit from this law, you have to submit a “no-fault application” to the insurance carrier within 30 days of the crash.  If you have a good excuse for not complying with this time limit, you can overcome it, but you should make every effort to comply.

anticoncussionhelmet
This guy’s helmet is over the top!  Don’t worry; I don’t recommend it.

Fellow veteran bikers and newbies alike, it’s a new biking season.  Excited?  Good.  Now don’t get so excited that you forget safety.  Here’s a quick set of reminders (or for newbies, a primer):

Check your bike.  Sure, it’s a simple machine (compared to, for example, a car), but still, things can go wrong if you don’t take care of maintenance.  Bikes — compared with cars — require little maintenance. Are the breaks working? That’s the most important thing.  But for smooth and fun riding, you want all the parts to work together in harmony, like a symphony.  It might be worthwhile taking your bike in for an annual tune-up at the local bike shop.  If you are in the Finger Lakes region, I strongly recommend the Geneva Bicycle Center.  You’ll never find a more talented, fair and friendly gang . . .