Central New York Injury Lawyer Blog

The older they are, the harder they fall. Or so it seems. With winter coming, property owners, as well as seniors and those who care for them, have to be extra careful to avoid slip-and-falls on ice or snow in all of central New York, including Syracuse, Auburn, Ithaca, Geneva and especially the very snowy Oswega areas. Why are slip-and-falls so dangerous for the elderly?

Seniors fall more often, suffer more severe injuries when they do fall, and recover more slowly. Here are some statistics gleaned from The Center for Disease Control and Prevention website More than one third of those over 65 fall each year in the United States. Among older adults, falls are the leading cause of injury deaths. Falls are also the most common cause of nonfatal hospital admissions for trauma. About 16,000 people over age 65 die yearly from falls. And fall-related deaths for the elderly are rising as the population ages.

In addition to the greater severity of the fractures (often the hip) which seniors face from falls, and the slower recovery time, seniors are exposed to greater risks of complications such as infections and blood clotting, skin ulcers and sores.

Every winter at Michaels & Smolak we experience a sharp intake of slip-and-fall cases against negligent property owners who refuse to spend the time or money necessary to regularly clear their walkways and parking lots of snow and ice. And every year it seems a higher percentage of the victims are elderly.

We believe these numbers can be lowered. Property owners, especially owners of commercial properties, must keep in mind that our population is aging. Our baby boomers are now becoming seniors. Older folks are more likely to slip and fall, and are more likely to suffer severe injuries when they do. More caution than ever should be placed on clearing walkways and parking lots of snow and ice.

I just completed my fourth annual round-the-State lecture to other injury lawyers regarding Municipal Liability for the New York State Academy of Trial Lawyers. You can see the outline for my talk at the "publications" page on our Michaels & Smolak, P.C. website. "Municipal Liability" means holding a government entity, such as a county, town, village, city, school district or public authority, liable for injuries. I lectured to Albany personal injury lawyers, Syracuse personal injury lawyers, Rochester personal injury lawyers, and Buffalo personal injury lawyers.

This is a hard topic. Bringing a claim against a governmental entity in New York State is like walking down a labyrinth strewn with hidden mines that can explode under foot. You need to know where to turn in the maze, and which steps to avoid. There are bizarre, complex special procedures you have to navigate through, and some very powerful defenses you have to watch out for.

As for procedures, before you even sue a municipality, you generally have to serve something called a "notice of claim", a legal document giving the municipality certain key information about the claim you intend to bring. This has to be served on the municipality in a very specific way within 90 days of the injury you want to sue for. Also, your statute of limitations is usually much shorter than when you just sue a private person. There are many other procedural differences too, including something called a "50-h examination", which is a chance for the municipality's lawyer to ask you questions under oath about your claim. To read a more complete detailed account of these procedural hurdles, read my Municipal Liability article "Suits Against Public Entities", which was published in the New York State Bar Journal several years ago, but is now conveniently located on our firm website at the "publications" page.

Even if you navigate your way through all these complex procedures, however, cases against municipalities and other government bodies often fail because of the very special and abundant defenses municipalities and goverrnments (and no one else) have under New York law. Oh, they have so many arrows in their quiver! I'll tell you about those, though, in a future blog entry.

I love giving this annual lecture tour for two reasons - first, it forces me to be on top of the complex rules and defenses you meet when suing municipalities --- towns, villages, cities and the like --- in New York State. Second, I get to meet and know great lawyers from around the great State of New York. New York, see you next year!

I recently read an article entitled "Deadly Mistakes that Plague Hospitals" by William Campbell Douglass II, M.D. According to the article, there are 400,000 preventable drug-related injuries every year and there is a 1-in-30 chance that your prescription will be filled out wrong. A lot of these are blamed on poor handwriting scrawled out onto prescriptions. Another article I have read, "Dead by Mistake" reports that medical errors cause about 200,000 preventable deaths every year in the United States, which includes many Syracuse area medical malpractice deaths each year. That's more than the deaths from diabetes, Alzheimer's, the flu, and pneumonia all combined!.

I am convinced that one reason for these amazing statistics is medical arrogance. Humble people learn from their mistakes. Arrogant people never learn from their mistakes because they don't believe they can make mistakes. I am not saying that all doctors are arrogant, but the American medical establishment, which seems to have a personality of its own, is arrogant.

The medical establishment does not sufficiently castigate and weed out bad doctors. Instead, it protects them. When a doctor makes a consequential mistake in a hospital, a small group of other doctors conducts a "peer review" of his or her actions. But if wrong-doing or negligence is found, the peer review group usually meets out a mere wrist-slapping rather than consequential penalties. To add insult to injury, the complaints and investigation records are, unlike police and other such records, kept sealed and confidential.

The truth is there is only one force in our society that weeds out bad doctors; lawsuits. Since doctors won't adequately police themselves, we lawyers have to police them for all of us. The bad doctors, the ones that are successfully sued time after time, eventually cannot find any affordable medical malpractice insurance. To find out more about medical malpractice lawsuits, visit our website

Maybe it is too much to ask that doctors police their own. Metaphors regarding foxes and henhouses come to mind. But for Christ's sake, doctors should stop whining, and screaming, about medical malpractice lawsuits, which provide the only effective policing of medical doctors in the United States.

So you're hurt and out-of-work through no fault of your own. You hired a good injury lawyer to bring a claim against the responsible parties. You lawyer says you've got a strong case, but meanwhile you've got no money coming in and those bills keep piling up. So what do you do? Hey, you've got an idea --- your lawyer can front you some money against that future settlement you'll eventually get!

Only one problem: He can't. The New York State Bar ethical rules just won't allow it. If he does, and he gets caught, he can lose his license to practice law. Not long ago, a big injury law firm, with a huge advertizing presence, out of Western New York State had one if its two senior partners suspended from the practice of law because he was involved in lending money to his injured clients.

Why is it considered wrong for your injury lawyer to lend you money? The problem is that when your lawyer becomes your lender, a conflict of interest arises. Your lawyer is supposed zealously represent you in your claim for compensation without being derailed by self-interest concerns. But if you owe him money, his self interest might interfere with his doing what is right for you. For example, if he wants to make sure he gets repaid, he might be tempted to talk you into settling your case for less than it is really worth to avoid the risk of losing at trial and not getting repaid.

So how do you get a loan to pay those bills while you wait for your case to be resolved? Your lawyer should be able to refer you to lending companies who specialize in lending money to injured claimants. These lenders will use your case as "collateral" - when your case is resolved, they will take their money back --- with hefty interest - before you touch a dime. The interest is usually substantial, so we always tell our clients to try to borrow from friends or relatives first, or try to get a traditional loan, before resorting to lawsuit lenders. They are a last resort, but sometimes they are the only thing standing between our injured clients and financial disaster.

A horrific bicycling accident took place in Onondaga County a few weeks ago. The poor guy was riding his "road" bike, that is, a racing style bicycle, along a State Route 20. He was doing everything right; had his helmet on, was wearing proper bright clothing, was riding on the right side of the road near the shoulder. As he approached an intersection, he was traveling a few car lengths behind, and to the right of, a car. Another car coming in the opposite direction allowed that car to pass through the intersection, and then, without seeing the cyclist, turned left into him. The injuries are horrible. This young man will be disabled for life, and will have a lifetime of pain and suffering. He will need major reconstructive surgery.

The case reminds me again of how dangerous bicycling on public roads is. It is a risk that I myself, and one of my partners, Lee Michaels, take on a regular basis --- we are both avid cyclists. That's one reason why we have become passionate central New York bicycle accident attorneys. Lee has had several close calls --- and injuries, including fractures, from biking accidents. I have been luckier, but maybe that's because I haven't been biking as long. Why do we do it? Why does anyone do any hobby? We love it! It's great exercise, you get marvelous views of the incredible Finger Lakes region where we live and work, and you meet great people with the same interest.

Yes, cycling is dangerous. But then again, so is life (you never get out of it alive!). The trick is to try to minimize the risks (but you can't eliminate them all). One way to do so when bicycling is to realize that many motorists simply fail to "see" cyclists. We are invisible to them! To be on the safe side, we cyclists must always assume we are invisible. Unless you actually make eye contact with a motorist, don't assume he sees you. Just because you have the right of way doesn't mean you should go --- ride defensively! For other bicycle safety tips, go to the FAQ page of our website .

When people ask me what I do for a living, and I tell them I am a personal injury lawyer, they sometimes roll their eyes, tell me a lawyer joke, or wag their finger at me about all the "frivolous" lawsuits us injury lawyers bring. My response to the "frivolous" lawsuits remark is simple and straightforward: Neither my law firm nor I ever accept frivolous cases. We reject every single one from the outset. Why?

First, we are fortunate enough to have a full plate of legitimate claims representing honest people injured through the negligence or wrongdoing of others. Our reputation attracts good cases, so why would we want to take bad ones? Because we successfully attract good cases, we don't have to accept bad ones.

Second, taking frivolous cases is bad business. You have to be a dishonest lawyer, who is prepared to misrepresent or exaggerate facts and law, to even have a chance at prevailing with a frivolous lawsuit. But if you are dishonest even once, if you misrepresent the facts or law even once, your reputation with insurance adjusters, judges and defense lawyers is affected not just once, but forever. After that, when you bring legitimate cases, the insurance adjusters, defense lawyers and judges will all mutter under their breath, "there he goes again with another one of those cases". If you get a reputation for bringing frivolous claims, you are less likely to be able to settle your legitimate cases because even those cases may be perceived as frivolous. As the saying goes, "your reputation precedes you."

So who brings all those "frivolous" lawsuits we hear so much about? First, in my experience, frivolous lawsuits are few and far between. When they do happen, the media and press make a lot of noise about them. They make for a good read. The headline, "Jury Gives Man with Broken Finger $10,000,000" attracts more readers than "Jury Renders a Fair Verdict in Car Accident Case". The first headline allows the public to shake their heads in bewilderment and disbelief at a legal system run amuck. The second one isn't even worth a read. My point is that the thousands upon thousands of truly legitimate claims are not broadcasted while the very few frivolous ones grab the headlines.

Most personal injury lawyers are honest and file only legitimate claims. There is, however, one kind of lawyer who brings frivolous lawsuits: The bad kind. One of two defects make these lawyers bad: (1) either they are not bright or are sloppy in their investigation and research and therefore believe the claims are legitimate, when in fact they are not, or (2) they know the cases they bring are frivolous, but since they can't attract legitimate cases, in desperation they cling to bad ones in the hope of extracting a settlement. Those kind of injury lawyers don't last; eventually they will end up doing real estate closings or estate work.

I represent many "illegal" immigrant farm workers in their personal injury claims. Why?

First, I speak fluent Spanish. I am married to a Guatemalan. We speak Spanish at home with our children. It is only natural that injured Spanish speakers in Central New York would seek out the only Spanish speaking injury lawyer in all central New York counties, including Onondaga, Seneca, Oswego, Ontario, Tioga, Orleans, Wayne and Jefferson Counties. And all these counties have an abundance of Mexican and Guatemalan farm workers tending to our apple orchards, grape vineyards and onion fields.

Second, about one half of all Mexican and Guatemalan farm workers in this area are "illegal". Actually, I prefer the term "undocumented" immigrants to "illegal". No person is "illegal". Crossing the border without legal permission to do so is not a crime, nor is working or living here without legal permission. These are considered civil violations, not criminal ones. That is why when an undocumented immigrant is apprehended, he is not tried for a crime or given a prison sentence. Instead he is merely deported or "removed", which means he is sent back to his country.

Under our laws, anyone who is injured because of the negligence or wrongdoing of another has a right to bring a claim for compensation for the injuries he or she suffered, regardless of his or her legal status in this country.

And rightly so. If this were not the law, employers and others would have an incentive to abuse undocumented aliens, subjecting them to extremely dangerous working and living conditions. They could do so without having to worry about paying compensation for any injuries the undocumented workers suffered as a consequence. Such a rule would create an unacceptably dangerous environment.

I am proud to represent injured Mexican and Guatemalan farm workers in their injury claims, regardless of their legal status in this country. From my years of experience representing them, I have learned that they are extremely hard-working, honest and even courageous people. They don't complain or whine. They only come to me when they are so injured they can't work. When they can work, they work long, hard hours, in dangerous jobs, for low pay, and scrimp and save every dime to send to their wives, children, and sometimes their little brothers and sisters. They come to the United States for only two reasons; to pull their families back home out of dire poverty, and to work hard.

If undocumented immigrants are injured because of someone's negligence or wrongdoing while here, I will do everything I can to get them every dime they are entitled to, just as I do for all my clients.

Please allow me to introduce myself: Mike Bersani, your Central New York Injury Law Blogger.

I am a personal injury lawyer in Central New York with the law firm of Michaels & Smolak, P.C. We have our law offices are in Auburn, New York, which is in Cayuga County, just north of Owasco Lake, and a satellite office in Liverpool, New York, Onondaga County. I live in Geneva, New York, Ontario County, right on the northern tip of Seneca Lake. To get between my office and home, I drive through Seneca County, passing first through Seneca Falls, across the northern tip of Cayuga Lake, and then through Waterloo in Seneca County. We handle all types personal injury cases, car and truck accident cases, defective product cases, medical malpractice and legal malpractice cases all over New York State, but mostly in upstate, and more than anywhere else in Onondaga County, Monroe County, Cayuga County, Ontario County, Seneca County, Oswego County, Wayne County, Yates County, Orleans County, Thomkins County, Chemung County, Erie County and Jefferson County. You can read all more about me on the bio page of my firm's website.

Why have I joined the law-blogosphere? Well, to be honest, one big reason is that I learned blogging would give my personal injury law firm a higher ranking with the search engines so that potential clients would find me easier online. Another reason --- I love writing.

When I am not practicing law (which seems to be almost all the time!) or blogging (can I really find time for this!?) I am spending time with my two boys, Nico (10) and Sebastian (12) and my wife Alejandra. Alejandra is from Guatemala and we speak Spanish at home. I speak French, too --- I lived in Paris, France, for 5 years when I was in my 20's.

Hobbies? Top of my list is travel. I just took the family to Mexico last summer. I go to Europe about every other year. Speaking foreign languages helps me get around in foreign countries (besides speaking fluent Spanish and French, my Italian is passable). I also love running and bicycling, and in the winter, skiing. I need a daily work out to feel good! I even do triathlons. When I can find the time, I love to read, too.

I sure hope you enjoy reading my blogs. I promise not to just copy and paste stuff from the news, like some law bloggers do. I like to read, digest, and then put my own spin on things. I think that makes for much better reading ---- and I hope you agree. Feel free to tell me by commenting to my blog posts.