Central New York Injury Lawyer Blog

The New York Times recently reported that a Manhattan jury returned a $27.5 million verdict to a 45 year-old woman who had to have her leg amputated after a bus ran over her. While such a verdict for an amputated leg is considered high in New York City, such a personal injury damages verdict would be unthinkable in upstate New York cities such as Syracuse, Auburn, Geneva, Rochester or especially in the rural areas in between. Verdicts downstate are, by and large, much larger than upstate.

Why are verdicts in the New York City area so large compared to upstate verdicts? Good question. As far as I know, there are no studies regarding why juries downstate are so generous compared to their stingy upstate counterparts. But here's my (unscientific) take on it:

Big city dwellers tend to be more accustomed to, and comfortable with, social safety nets. They have rent subsidies and controls. They live collectively. They expect the "system" to even the inequities of life out a little bit. Big city dwellers tend to see a personal injury verdict as a way to right a wrong, a way to balance the scales, a way to help the helpless, etc. In sum, they are SOCIALLY oriented.

Rural folks, on the other hand, generally adhere to the independent frontiersman philosophy. They tend to see personal injury verdicts as a kind of "hand-out" rather than as just compensation for harm caused by a wrongdoer. They often feel that injury victims are taking advantage of the "system" to reap an undue profit. They feel people should fend for themselves, and "tough out" any bad luck that befalls them. In sum, they are SELF-SUFFICIENCY oriented.

When you try a case in Syracuse, New York, for example, even though Syracuse is a City, jury members come from the entire County of Onondaga. You are likely to get many jury members who have the rural (self-sufficiency) mindset rather than the urban (socially conscious) mindset.

Sometimes I tell my clients that their case would be worth twice as much downstate as upstate. They are shocked. They ask, "how is it fair that I should get ½ as much as someone in New York City for the same injury?" My response is this: It's not fair, but it's the way it is! I also tell them that we at Michaels & Smolak have techniques we use at trial to counteract our rural juries' "self-sufficiency" mindset, and which are more likely to produce top-dollar upstate verdicts. But I admit, any upstate verdict we get is, unfortunately, still a far cry from a downstate verdict.

It is well known that Syracuse, Auburn, Geneva and other upstate New York cities are aging. Young people don't stay because jobs are not easy to find here. As a result, the average age of people in cities like Syracuse, Auburn and Geneva is rising. We are getting old! And we've all heard those stories about elderly drivers who just should not be behind the wheel anymore and who end up causing terrible car accident injuries, for example, bowling down a bunch of pedestrians on a sidewalk, or crashing full speed into another car in the oncoming lane, or something like that.

Assume an elderly driver causes such a car accident in New York State. Assume further that the car the elderly driver was driving does not carry enough liability insurance to pay for all the personal injuries the elderly driver caused. What then? Is there anyone else to sue? What about the State of New York for having renewed the elderly person's driving license? What about suing the family of the elderly driver for having allowed him or her to drive?

I'll get to the answers in a minute. Bear with me. First I want to tell you why this topic is on my mind. I went for a ride with my 82 year-old mom the other day. She drove. My dad is the same age, but because of a stroke he had a few years ago, he no longer drives. My mom seems to drive just find, at least I thought so. But a day or two later, a friend told me that he was driving behind an elderly lady in Skaneateles, Onondaga County (where my mother lives) who looked very confused. She was at an intersection and was braking off and on, with no turn signals on, but then suddenly turned left, then pulled over. My friend then recognized the driver to be my mother.

I don't know if I believe him. I asked my mom about it, and she says she was nowhere near where this allegedly confused elderly driver was. Maybe he mistook that driver for my mother.

The Center for Disease Control and Prevention estimates that the United States has 30 million licensed drivers ages 65 or older. This is 18% more than only a decade ago. As our population ages, so does the average age of our drivers. If the elderly are disoriented, have poor eyesight, slow reactions, cognitive impairment, or physical impairments, they are more likely to cause accidents. But that's not all; older drivers are more likely to die in a car accident than younger ones. Drivers ages 80 and older have a higher "crash death rate" per mile than any other driving group, except teen drivers.

So what if my friend is right, and that confused elderly driver was my mother? The smart thing to do would be to have a doctor evaluate my mother for driving ability. But what if I don't? What if I do nothing? Can I be sued if she ends up crashing into another car or bowling over some pedestrians?

No, I can't. I am not liable for my mother's actions in New York. Sure, I can be held liable if I gave her my car to use. That would be, among other things, what we lawyers call "negligent entrustment of a dangerous instrument." But otherwise, I am not legally responsible for failing to stop my elderly mother from driving.

What about suing the State of New York for renewing her driving license last year? Fat chance. There is a doctrine of law well ingrained in New York called "governmental immunity" which presents insurmountable barriers to such a suit.

So who to sue? Sorry to say you are stuck with suing my mom and, if someone else owned the car, that person, too.

But just because I am not LEGALLY required to stop my mom from driving when I see she presents a danger to others does not mean I am not ETHICALLY required to do so. I hope I will have the courage to convince my mother to stop driving when the time comes, if it comes . . .

On Tuesday, November 24, I took my two children (Sebastian, 12 and Nico, 10) to get their H1NI flu vaccination at the Bristol Field House at Hobart William Smith College in Geneva, Ontario County, New York, where we live. Although I firmly believe this was the right decision, I can never just "relax" when my kids are getting medical treatment, especially a new and relatively untested treatment such as this vaccine. A nagging voice in my brain always asks, "what if the authorities make a mistake, for example, give them the wrong doses?" This "what if" thinking haunts me more than most parents because of what I do all day long; I review and handle, among other types of personal injury cases, medical malpractice cases, in Geneva, Phelps, Penn Yan, Seneca Falls, Waterloo, Auburn, Weedsport and Syracuse, New York, and in a lot of other places in New York State as well. I see a lot of medical mistakes. I am therefore perhaps overly wary of them.

Maybe that little voice in my head wasn't so off base. I just read today that the Center for Disease Control and Prevention alerted residents of Needham, Massachusetts that a vaccine wrongly labeled H1N1 was administered to 47 residents. The residents were instead vaccinated against another strand of the flu. This happened on November 24, the same day my kids were getting vaccinated! The Massachusetts Health Department contacted all 47 recipients to inform them that they had gotten the wrong flu shot. Fortunately, no one got sick. The recipients are simply immunized against a more common seasonal flu and not immunized against the swine flu.

What if one of them contracts the swine flu and dies before he has the opportunity to get the REAL swine flu vaccine? In my opinion, the estate of that person would have a slam dunk lawsuit against who ever made the error. If it was a doctor or hospital, the case would be framed as a medical malpractice case. If it was a pharmaceutical company, the suit would be brought as a products liability case. Either way, I cannot think of a single defense that would defeat such a claim.

On the other hand, if the recipients of the wrong flu vaccine do not now diligently seek out the "real McCoy" swine flu vaccine, and then contract the swine flu and die, the defense could argue both that the deceased "failed to mitigate her damages" (legalize for "you could have prevented or minimized the harm to you but chose not to") and that the deceased''s own decision to not pursue the available swine flu vaccine caused her death rather than the pharmaceutical or medical error that occurred earlier.

My advice to those 47 Massachusetts residents: Go get that HINI flu shot as soon as you can.

First scenario: You are walking on a sidewalk in Auburn, Cayuga County, New York and trip and fall on a raised portion (a "differential") of the sidewalk that had been poorly maintained. You are injured. Second scenario: Same thing happens in Penn Yan, Yates County, New York. Question: Can you sue anyone to recover compensation for your injuries? Your central New York slip-and-fall lawyer's answer: You probably can if you are injured on a sidewalk in Penn Yan, but not in Auburn, New York. Make any sense? Of course not.

Welcome to the complicated world of New York sidewalk laws. To understand why the result is different in Penn Yan and Auburn, you first have to understand that there are two possible owners of city sidewalks: The city or the abutting landowner. In Penn Yan, the sidewalks are owned by the abutting property owners. You can sue the property owner if you trip and fall on his or her poorly maintained sidewalk.

But in Auburn, the abutting property owner does not own the sidewalk. The City of Auburn does. If you have the same accident on a city-owned sidewalk, for example in Auburn, your case is much tougher. New York State sidewalk laws protect the city from liability for trip and falls or slip and falls on its sidewalks if the city has enacted a "prior written notice" law. If the city has such a law on the books (which Auburn does), then generally you cannot sue the city unless, before you tripped or slipped on that defect in the sidewalk, someone else had written a letter to the city complaining about the same defect. But this almost never happens! Although people might call the city to complain, they rarely write letters complaining about a raised sidewalk or a pothole.

There are exceptions to this "prior written notice" rule. The main exception is that, if the city AFFIRMATIVELY CREATED the defect, you don't need to show "prior written notice". For example, perhaps the city just finished working on the sidewalk and left broken sidewalk pieces, or a hole, that caused you to fall. In that case you don't need "prior written notice" of the defect because the city "affirmatively created" the hazard.

Sidewalk laws in New York are complicated. If you slip or trip and fall on a city, town or village sidewalk in New York, only an experienced personal injury lawyer can tell you if you have a case. (By the way, the sidewalk law is totally different in New York City). If your lawyer knows what she is doing, she will first verify who owns the sidewalk (the city or the private abutting property owner). If the city owns it, she will check to make sure the city has enacted a "prior written notice" rule. If it has, then the lawyer will try to find an exception to the prior written notice law, such as the "affirmatively created" exception.

So the answer to the initial question posed in the title to this blog is . . . . . "maybe"!

Several injured construction workers have walked into my office this year in Auburn, Cayuga County, New York, as they do every year, with a typical central New York construction-site injury story that goes something like this: "Mr. Bersani, I fell from a ladder and suffered bad injuries while I was working on a construction project. I guess I didn't set the ladder up right, because when I got halfway up, it just slid out from under me and down I came. Can you help me?" Sometimes it's a fall from a ladder, sometimes a fall from a scaffold, sometimes they were just fixing a leak in a roof, and sometimes they were involved in a full construction project. But one thing almost all these clients have in common: They have a nearly perfect case.

Why? After all, didn't that guy just say he set the ladder up wrong? Wasn't it his fault? How is that a perfect case?

Well, to understand why, you have to understand New York's Labor Law 240. (I am going to simplify it for the purpose of this blog - it's really more complicated. Call me and I'll be glad to explain in detail).

New York Labor Law 240, known as "the Scaffold Law", offers special protection for workers involved in construction work (and sometimes other non-construction work) who have to work at heights. What it says, basically, is that if you fall when you are doing construction (or similar) work, the owner of the property where you fell, and the general contractor of the project, and maybe others, too, are all almost AUTOMATICALLY liable to you for your injuries, even if you yourself are partly, and even mostly, to blame.

Why does New York have such a law on its books? Well, you have to look back to when all those really tall skyscrapers were going up in New York. Back then, workers were falling like rain from buildings under construction. Serious injury and death were par for the course. Sure, there were rules on the books requiring construction companies to secure their workers with ropes, lanyards, and other devices, to ensure they did not fall, but those rules were almost universally ignored. Why? Because it was cheaper to pay workers' compensation death benefits to the family of the fallen worker than it was ensure that all the property safety rules were followed.

The New York State legislature (with a little push from the unions) finally had enough, and said, "you know, we are tired of your excuses. We are tired of all these dead and seriously injured men. From now on, if a worker falls from a height on a construction site, you guys are liable, not just the general contractor, but also the owner of the property. So you guys had better make sure all the safety rules are followed, because if anyone falls, that proves that the rules weren't followed, and you are all liable."

New York has been a safer place for construction workers ever since. And insurance and construction companies haven't stopped complaining about Labor Law 240 ever since. They try every year to wipe it off the books, but so far they have failed.

And that, in a nut shell, is the story of New York's Labor Law 240, the Scaffold Law, the New York construction worker's best friend.

The Institute of Medicine reported a decade ago that as many as 44,000 to 98,000 people die in hospitals in the U.S. every year from medical errors. At Michaels & Smolak we handle many medical malpractice actions involving injured patients from the Syracuse, Auburn, and Geneva, New York areas, as well as other upstate New York communities. Although medical malpractice is never the patient's fault, there are some steps you can take to minimize the risk that YOU will become one of the many victims of medical malpractice:

(1) ASK. You have a right, and a duty to yourself, to know all about your medical condition and treatment. Don't be afraid to ask questions, especially if you have any doubts or concerns about a procedure your doctor is recommending, or a drug he is prescribing. Asking questions not only helps you understand how to get the most out of your medical treatment, it may also help the doctor focus on your particular needs. It doesn't hurt to bring a friend or relative along with you to help you understand.

(2) Be careful about PRESCRIPTION DRUGS. Keep a list of the medicines you are taking, and share that list with your doctor. Don't forget to tell him about any allergies or side effects you have had. If your doctor orders a prescription drug, make sure the medicine the pharmacist gives you is the same one, and the same doses, the doctor ordered.

(3) Make sure you receive, and understand, the results of any MEDICAL TESTING. Don't just assume the results were negative if you don't hear from your doctor. Call and find out. If you get the results, but don't understand what they mean, make sure you find out.

(4) SHOP FOR THE RIGHT DOCTOR AND HOSPITAL. Some doctors and hospitals are better for certain procedures or conditions than others. Some are just plain better than others. You can find out a whole lot about hospitals and doctors on the internet these days. Research them! For example, the web site http://www.nydoctorprofile.com provides information about disciplinary actions taken or criminal charges filed against doctors.

(5) MAKE AN INFORMED DECISION ABOUT SURGERY. Make sure you understand all the possible benefits, and risks, of any surgery that is recommended for you. Keep in mind that your doctor makes a lot more money performing surgery than just seeing patients. He may want to do the surgery, but it might not be the right thing for you. Some doctors like to do a lot of surgery, even when the possible benefits are minimal. Research the surgery, and the success rate, on the internet. If you decide to undergo the surgery, be sure to tell not only your surgeon, but also the anesthesiologist and nurses, of any allergies or bad reactions you have had to any medications and anesthesia.

You can't always avoid being a victim of medical malpractice in New York or anywhere else. You can research your doctor carefully, ask all the right questions, and make all the right decisions, but in the end, at some point, you are at the mercy of the professional who is treating you. Still, following the steps above will help reduce the risks that you will become one of the many victims of medical malpractice.

The Syracuse Post Standard reported a strange vehicular assault case yesterday. A Camillus man, Christopher Spack, was killed when an elderly driver, William Levea, 79, of County Route 6, Fulton, deliberately rammed his car repeatedly into Christopher Spack's pickup truck from behind while they were both driving on Route 370 in Cato. The repeated ramming caused Spack's vehicle to cross over into the path of an on-coming vehicle. Spack collided with the on-coming car, was ejected from his pickup truck, and pronounced dead at the scene. He had dialed the Onondaga County 911 center minutes before the rear-end ramming started to report that he was being harassed by the car's driver, whom he did not know. Cayuga County deputy sheriffs stated they did not know why Levea repeatedly drove his car into the rear of Spack's pickup. Levea was charged yesterday with second degree murder, driving while intoxicated and reckless driving.

The criminal law system will punish Mr. Levea, we hope, with a long prison sentence (but since he is already 79 years old, any sentence he gets will probably not last long enough). But what about poor Mr. Spack's family? How will they obtain compensation for their loss?

His family has the right to file lawsuit against Mr. Levea for the wrongful death and conscious pain and suffering of Mr. Spack. But unfortunately, they will probably get nothing for their trouble. Why? I'll bet this Mr. Levea (the 79-year old vehicular assailant) has no assets to go after. People who drive drunk and intentionally ram their car into others almost by definition have "nothing to lose", and therefore have no assets worth the trouble of going after.

What about automobile insurance? Not likely. Although Mr. Levea's vehicle is probably insured (the minimum New York State required automobile liability insurance is $25,000 per person and $50,000 per accident), Mr. Levea's automobile insurance carrier will almost certainly disclaim (deny) insurance coverage on the grounds that this was not an "accident" but rather an "assault". Liability insurance covers only accidents (negligence), not intentional harmful acts (assaults). Further, even Mr. Spack's own insurance won't help his family get recover; the "supplemental un/underinsured motorist" (SUM) coverage in Mr. Spack's own policy will only apply if the injuries were the result of an "accident", not an intentional act or assault.

So where's the justice for Mr. Spack's family? Well, if seeing Mr. Levea go to jail is "justice" for them, they will get a measure of it. But getting financial compensation is a long shot. Unfortunately, our civil justice system does not always deliver a just result.

Recently, in Ontario County, in the Finger Lakes region of New York State, a 14-year old student of a public middle school didn't go home at the end of the school day. Instead he ended up in a hospital getting plates and screws installed to fix a severely broken elbow. How did that happen? A fellow 14-year old student, who was just "goofing around", tripped him in the school hallway when they were changing classes between periods. This was not the first time this student had injured other students. He apparently had a history of rough play.

The parents might ask a school accident lawyer the following questions (I will answer them further down): (1) can the injured child (and his parents) sue the boy's parents? After all, they failed to properly raise this kid to be a civilized human being who can live safely with others. (2) Can they sue the tripping kid? (3) Can they sue the school?

Here are the answers, in order:

(1) No, they can't sue the parents. Generally parents are not liable for the negligence or careless actions or even the assaults of their children, at least when the parents are not present to control them.

(2) Yes, the tripping victim and his parents can sue the child that tripped him. But there is a problem: a 14-year old child is unlikely to have any money, so why bother suing him? Answer: There may be insurance coverage. There is one place in particular you can look to find it If the child's parents own their own home, they probably have homeowner's insurance, which usually provides insurance for the negligent actions of all resident relatives of the home, including children. In my experience, such a policy often has $100,000 in coverage. If the parents rent and don't own their home, it is unlikely they will have insurance to cover the incident, but it is still possible. Some renters have "renter's insurance", which sometimes has coverage similar to homeowner's insurance.

(3) Yes, they can sue the school (actually, the "school district") on a legal theory called "negligent supervision". When you drop your child off at school, the school legally assumes the supervisory duties of "parent". The arguments would be that: (1) The school should have placed a monitor in the hallway (if there had been such a monitor, the kid would probably not have dared to trip) and (2) the school should have been especially vigilant of this child who had a tendency to hurt other children.

New York law generally provides a legal remedy for victims of the negligence or wrongdoing of others. A competent personal injury lawyer knows who to bring the claim against, what "legal theories" to sue under, and also where to find insurance coverage. If your child is injured at school, consider consulting with an experienced personal injury lawyer about your possible legal remedies.

Today New York Governor Patterson signed into law a bill making driving while intoxicated with a child (person under 16) in the car a felony, even for a first-time offender. If convicted, the offender could spend up to four years in jail. The new law also requires first-time DWI convicts to install an "interlock device" that blocks the engine from starting if the device detects, on the driver's breathe, alcohol.

The bill picked up steam in the New York Senate after two New York car accidents in which children were killed by intoxicated adult drivers who crashed their car. In the first case, a woman drove the wrong way on the Taconic Parkway in Westchester County and killed eight, including her own 2-year-old daughter and three other children. In the second case, a young passenger was killed by a friend's mother driving drunk. She flipped the car on the Henry Hudson Parkway in Manhattan. The new law is called the Child Passenger Protection Act, also known as "Leandra's Law", named after one of the child victims mentioned above.

New York courts convicted 37,695 intoxicated drivers last year. Nationwide, 13,000 people a year die because of drunk driving.

Last month, California passed a law making interlock devices mandatory for first-time drunk drivers in four counties in California.

All this is good news - 13,000 deaths (to say nothing of serious injuries) from drunk driving are too many. Michaels & Smolak has brought personal injury and wrongful death lawsuits for too many victims of drunk driving. In drunk driving cases, the jury is usually allowed to award only the same amount of compensation it awards in other car accident cases. I would like to see a new law allowing the jury to award treble (triple) damages for victims of drunk driving. This would help discourage people from getting behind the wheel drunk.

One day soon, I predict, there will be few drunk drivers on the roads. Technological advances will do away with them. Sensors that detect alcohol through skin are being developed for installing in steering wheels. Devices are also being developed that automatically measure alcohol in the air of a vehicle's interior. These devices will make it impossible to start your car if you have been drinking. Let's hope that day comes soon.

Hurray! This week New York Governor Patterson signed a new law, which had wound its way through the New York legislature for months, which helps victims of personal injury in New York and New York personal injury lawyers, including Auburn and Syracuse personal injury lawyers like me! The law amends New York's CPLR 4545 (called "the Collateral Source Rule") to get rid of a huge problem for injured plaintiffs whose health insurance (e.g., Blue Cross, Excellus, Guardian) pays for their medical treatment. The statute is complex and has many parts, but the part New York injury attorneys are applauding provides, in laymen's terms, that your health insurer can't dip into your personal injury settlement for reimbursement of their payment of your medical bills. This not only leaves you, the injured plaintiff, with more money at the end of the day, it also makes it a hell of a lot easier for your personal injury lawyer to settle your case.

Why? Well, let's say you slip and fall on ice at a store parking lot and are injured, but it is really, really tough to prove that the store is legally liable. There was an ice storm going on, and most juries would say the store is not liable for that because the store really couldn't do anything to prevent it. Nevertheless, your lawyer might be able to get a $20,000 settlement offer from the store's insurance company because they are afraid that, just maybe, you might win at trial (especially if you have a convincing lawyer!), in which case a jury would probably give you $100,000. So the store's insurance company essentially wants to hedge its bet.

BUT (and here's where the health insurers used to screw the whole deal up), your health insurer has paid out $20,000 in medical treatment for your slip-and-fall injury, AND THEY WANT IT BACK! In fact, if you read the fine print in your health insurance policy, it specifically says you agree to pay them back first from any money you get in a settlement or from a verdict! That leaves you with nothing if you settle, so why would you? Your lawyer is then forced to negotiate with the health insurance carrier to try to get them to reduce their "lien" (that's what we call it in the law business), but even then this leaves you with almost nothing.This "lien" or "subrogation right" of the health insurer just gets in the way of fairly resolving your case.

BUT THOSE DAYS ARE OVER. They can't do that anymore. And this is only fair. After all, your health insurance carrier was charging you a hefty premium in exchange for agreeing to cover your medical costs in the event you got sick or injured. Why should they have a right to charge those big premiums from you and then reach into your pocket for yet more money from your settlement? Isn't that double-dipping? Aren't they getting paid twice for the same thing, once when they charge the premiums, and then again when they "hold you up" at the end of your personal injury case?

In signing this legislation into law, Governor Patterson essentially told the health insurance industry, "Get your greedy hands out of those poor injured plaintiffs' settlement pot".

Effective November 24, 2009, "child-restraint systems" (car seats and booster seats for kids) are required for ALL CHILDREN UNDER THE AGE OF 8 (that is, through age 7). The law previously required this only for kids less than 6 years of age (through age 5).

What does this mean for parents? Don't throw away your 5-year old's booster seat - he will need it for two more years now.

While we're on the subject, here are the other "child-restraint" requirements in New York:

• All car seats or booster seats must be "appropriate" for the child, that is, they must meet the size and weight specifications of the manufacturer.
• Children under 4 generally must use a federally approved "car seat" (permanently affixed or affixed by a seat belt), unless the child weighs more than 40 pounds, in which case a booster seat as described below will suffice.
• Children ages 4 through 7 (or under 4 but weighing more than 40 pounds) must be restrained in a child-restraint system (booster seat, etc.) that meets the manufacturer's height/weight recommendations.

I might as well complete this blog by telling you the adult restraint requirements in New York:

• All front seat passengers, regardless of age, must wear seatbelts (of course I mean this to include shoulder harnesses too, if available), but the driver is responsible (can be ticketed) only for unrestrained front seat passengers under age 16. Any older, and the passenger himself can be ticketed and fined.
• All backseat passengers under age 16 must wear seatbelts (but not required for 16 and older). The driver can be ticketed and fined for violating the under-16 rule.

Read the Vehicle and Traffic Law Section itself for the full scoop. Take some advice from this Syracuse area motor vehicle accidident lawyer: You should follow all these rules, and take it one step further: Buckle up in the backseat, even though it is not legally required if you are 16 or older. It can save your life or reduce your injuries in the event of a collision. Believe me. I have seen this first hand in my cases. Also, as I wrote about in my blog yesterday, if you are injured, and you are not wearing a seatbelt, your

We got a very large settlement ($7.5 Million) last year for a young man involved in an automobile accident in Cayuga County, near Auburn. The young man had gone out to a bar in Skaneateles with some friends. On their way home, the driver, who was somewhat intoxicated, lost control of the car on snow and ice and crashed into a tree. Our client, who was in the backseat and not wearing his seatbelt, suffered permanent paralysis.

Some of our friends were surprised we got so much since our client was not wearing his seatbelt. They said, "Isn't a passenger required in New York to wear a seatbelt? If he wasn't doing what the law required, why was he entitled to so much for his injuries?"

Whether a passenger is in the front seat or the back seat of a car, the defendant of the lawsuit has a right to argue, as a defense to the case, that the passenger could have "mitigated his or her damages" (legalese for "could have avoided getting injured so badly") if he or she had been wearing a seatbelt.

This is called the "seatbelt defense". While failure to wear a seatbelt is not a total "bar" to your case (you can still sue), it can reduce your DAMAGES, that is, the AMOUNT OF COMPENSATION you get for your injuries.

Here's a concrete example of how the "seatbelt defense" works in New York: Let's say you are in the backseat, not wearing your seatbelt, and your driver blows a red light and crashes into another car, which sends your face flying into the back of the seat in front of you. You fracture your nose so badly it looks like a caricature of a Picasso painting. If you had been wearing your seatbelt, would you have broken your nose? If not, would your injuries have been LESS severe? If the answer to first question is "no", and the answer to the second question is "yes", and the defendant can prove this at trial, then you will NOT be compensated for a broken nose, but rather for the lesser injuries you would have suffered had you been wearing your seatbelt.

So what about the paralyzed guy who wasn't wearing his seatbelt? How did we get so much for him even though it was "his fault" for not wearing his seatbelt? Simple: We hired a good seatbelt expert who was prepared to testify that our client would have been paralyzed regardless of whether he was wearing a seatbelt. We convinced the insurance company that the jury would likely believe our expert. The defendant has the burden of proving the "seatbelt defense", and the insurance company was, apparently, not sure it could do that with its own expert.

By the way, the New York Vehicle & Traffic Law requires only front seat adult passengers to wear a seatbelt, while backseat adult passengers are free to go without. But even so, if you are injured, and sue for damages, the "seatbelt defense" applies.

Moral of the story? Wear your seatbelt, both in the front and back of a car!

Ok, I won't beat around the bush: This blog entry is a shameless plug for my law firm, Michaels & Smolak, P.C, a Syracuse area personal injury and medical malpractice law firm. But it's also the truth (so help me God!).

Good personal injury law firms are not hard to find (and unfortunately, bad ones aren't either). We believe that we are among the best injury law firms not only in central New York, but in all of upstate New York. But don't take our word for it --- judges and other lawyers have also ranked us among the best. Every lawyer in our firm has been named a "Super Lawyer" by Super Lawyers Magazine, and our firm has achieved the highest possible ranking in the Martindale-Hubbell Directory. To achieve those rankings, many lawyers and judges had to give us top grades for our legal skills and ethical standards. To learn more about what these ratings mean, go to the Martindale-Hubbell and Super Lawyers websites.

Still, there are other highly rated law firms, so what makes us different? We believe the answer resides in our team approach to cases. All four lawyers in our firm (Lee, Jan, Dave and myself) work as a team on each and every case in our office. We meet every two weeks for a full morning to discuss, strategize, brain-storm and trouble-shoot our cases collectively. Four heads are better than one! Most law firms don't take the time to do this. The ideas that come out of our meetings are amazing! Those ideas help advance cases in the best way possible. This is why our motto, which you can see at the top of our website, is "the better game plan". Just like a team huddles before deciding how to handle a key play, the lawyers at Michaels & Smolak strategize as a team before deciding how to tackle tough or important issues in a case. And that's our "better game plan"!

In a recent post, I wrote about a multi-million dollar settlement Michaels & Smolak recently achieved for a Syracuse area victim of occupational lung disease. I attached to that post a video-clip about one of the most common types of occupational lung disease, silicosis, an incurable, potentially deadly, and progressive disease. Silicosis is caused by the inhalation of silica, which is found naturally in sand and many rocks, and which, when blasted or sanded, becomes airborne. Silicosis and other work-related lung diseases are all too common in Syracuse, Auburn, Buffalo and other aging industrial cities.

Today the Clarion Ledger (a Mississippi Newspaper) reports that a victim of silicosis was awarded 7.6 million dollars in the first silicosis case to go to a jury in Mississippi. The injured worker developed silicosis from 25 years of sandblasting without proper protection from the dangerous dust that engulfed him on a daily basis.

So what did the defendant, Mississippi Valley Silica Co., do wrong? Apparently just about everything. The jury heard substantial proof that the company knew that the abrasive-blasting of sand without proper protection was likely to cause silicosis. They knew, or should have known, that proper protection would not have been complicated or costly. Yet they did nothing or next to nothing about it.

In fact, Silicosis and other occupational lung diseases can be quite easily avoided. Here are some steps employers and others can take to protect their workers from silicosis:

• Minimize dust production around work areas.
• Install exhaust ventilation.
• Install blast-cleaning machines to prevent dust from being released into the air.
• Train and teach workers about silica dust, silicosis and good work practices to reduce dust and the inhalation of dust.
• Wet down surfaces to avoid producing dust.
• Use vacuums with high-efficiency particle filters.
• Have workers wear respirators in dust-prone areas.
• Wet-sweep for clean-up.
• Avoid dry sweeping or blowing dust with compressed air.

Silicosis, and the ways of preventing it, have been well known for many years, as this 1936 U.S. Department of Labor film shows:

Sure, these safety measures have a cost. And yes, employers and others too often cut such costs to make way for fatter profit margins. But trial lawyers, such as the ones who won this lawsuit in Mississippi, make employers realize that NOT implementing such safety measures may, in the end, cost more than implementing them. So let's hear it for us trial lawyers!

Let me tell you about another heartbreaking wrongful death settlement. Heartbreaking for two reasons, as I will explain below.

A middle-aged married woman was walking to work in Geneva, Ontario County, New York. To get to work she had to cross Routes 5/20, also known as Hamilton Street. She crossed in a crosswalk, which meant she had the right of way, and vehicles traveling down Routes 5/20 had to yield to her. But the driver of an 18-wheeler, who was traveling along Routes 5/20, mowed her down. She did not survive.

Her heartbroken widower sought out a Geneva

The widower's emotional loss dwarfed his economic loss. But New York's wrongful death law turned a blind eye to all that grief, and,instead offered him only compensation for his economic losses. But he didn't even want compensation for that! He wanted compensation for his REAL loss; his emotional loss.

I am sad to report that he did not get compensation for that, and therefore, he did not get justice. Chalk another one up to New York's very wrongful,

Posted by Michael Bersani | Permalink | Email This Post | Comments (0)

Posted In: Wrongful Death

Ok, imagine this: A speeding car strikes and instantly kills your 3-year-old child as you watch helplessly from a nearby lawn in Seneca County. Turns out the speeding driver was drunk. Your 3-year-old had wandered up to the road as you were distracted by your 2-year-old who was throwing a tantrum. Sure, in hindsight you should have kept a better eye on him, but there is no way a sober driver driving at the speed limit would not have been able to brake in time and avoid running over your son.

Your world is turned upside down, your heart is literally broken, you are devastated. When the shock and horror subside, and the grief that will engulf you forever takes hold, you go to a Central New York wrongful death lawyer. You want justice. You want compensation. You want to make the driver pay. What does he tell you?

If your New York lawyer is both honest and brave, he will tell you the sad truth; your case is worth almost nothing. That's right, almost nothing. Why? Because New York State's wrongful death law does not allow compensation for the emotional grief of surviving family members. It allows compensation only for "economic" loss, that is, the loss of economic support the dead victim would have provided, had he not died, to his surviving family members (as well as some incidental expenses such as medical bills, funeral bills). And since your 3-year-old did not support anyone, there is no "value" to your claim.

The facts I described above are very similar to a real case I recently handled. I had the sad duty of telling my clients, the grieving parents of a dead three-year-old, that New York State law did not allow them compensation for their grief. As a father of five myself, that was hard news to break to those poor parents.

Now let's change the facts. Let's say that, instead of killing your child, the drunk driver had merely maimed him --- caused him to lose a leg. Now what? Now you can sue that driver for big bucks --- you are allowed to claim compensation on behalf of your child for a lifetime of suffering and diminished enjoyment of life. Your case is worth millions.

So the drunk driver is much better off if he kills your three-year-old than if he merely maims him. Make sense?

Of course not. All fair-minded people who have examined New York's wrongful death statute consider it an abomination, one of the most unjust laws on the books.

So why doesn't New York change it? The answer is simple: The insurance and corporate lobby won't let them. The New York Insurance Association has been particularly forceful, and has lobbied colossally against any changes in the law that would grant "non-economic"(emotional suffering) damages for the wrongful death of a child.

Nevertheless, since 1995, every year some brave New York legislators have tried to change this unjust law. There is such a Bill recently pending in the New York State Assembly, sponsored by Assemblyman Helene E. Weinstein (Democrat, 41st Assembly District, Brooklyn). The Bill, if made law, would amend New York's Wrongful Death Statute to harmonize it with the majority of other states' wrongful death laws by allowing compensation for the "grief and anguish" of surviving family members. The Bill eloquently notes that under the current, harsh law, "families who suffer the loss of a loved one must endure a second blow, when they discover the civil justice system is unable to compensate them for their emotional loss" and that it sadly "prohibits the grief-stricken family from recovering damages for their emotional suffering from the wrongdoer."

Could this be the year that such a Bill becomes law? Let's hope so. I would rather not have to try to explain to any more grieving New York parents that under New York law their child, and their grief, is worth nothing!

To learn more about wrongful death cases in New York, go to our main website, practice areas, wrongful death.

Michaels & Smolak recently negotiated a large (several million-dollar) settlement for a Central New York worker who suffered an occupational lung disease. This is the second multi-million dollar settlement we have had with occupational lung disease cases. Most occupational lung diseases lead to difficulty breathing, and sometimes to death.

In this Syracuse area work injury case, the worker was a mason whose job included cutting through bricks and mortar with a powered high-speed demolition saw and grinding the mortar from between the bricks with a powered hand-grinder. Of course he knew this created a lot of dust (he would go home every day covered in the stuff), but what he did not know was that there were harmful particles in the brick dust that were slowing scarring and damaging his lungs. He ended up with a serious lung disease called "mixed dust Pneumoconiosis".

I once heard it said that if you can't breathe, nothing else matters. Any one of the millions of Americans who suffers from asthma can attest to that.

The most common occupational lung diseases are:

• Hypersensitivity pneumonitis
• Asbestosis
• Silicosis
• Byssinosis
• Mesothelioma
• Pneumoconiosis (black lung disease)
• Occupational asthma
• Occupationnal lung cancer

To learn about Silicosis, one of the common occupational lung diseases listed above, watch this excellent video:

Occupational lung diseases are, according to the New York State Department of Health, the most common work-related illness in the United States. Just like our client the mason, workers generally don't realize their lungs are being destroyed until it is too late.

The sad part is that occupational lung disease is preventable. Employers and others need only improve ventilation, require protective equipment, change some work procedures and properly train and educate their workers.

Employers and others need to be convinced to spend the money necessary to prevent occupational lung disease. The problem is that cuttinng corners cuts costs and increases profits. That's why lawsuits are GOOD, yes, you heard me, GOOD! Only through expensive lawsuits do employers and others who are in charge of work place safety learn that the cost of NOT controlling dangerous dust at the worksite is more expensive than controlling it. That's one reason we at Michaels & Smolak are proud to be trial lawyers: We help make the workplace safer!

We just learned of a a Seneca County dog bite case, and as usual, the victim was a child. At Michaels & Smolak we take in several dog bite cases a year. While the injuries from dog bites are not usually life threatening, the scarring is often disfiguring and permanent. Especially with children, the bites tend to be in the face.

In this case, the child was only 3 years old, and was visiting an apartment with his parents. The dog looked friendly, so the parents let their guard down, and let their child get close. The dog lunged and bit the child in the face, causing a terrible gash in his nose, requiring 15 stitches. We are hoping for a good recovery. In a way he was lucky; the bite just missed the eye.

I am a runner and bicyclist, and have had my own run-ins with dogs. I have been bitten by dogs twice while running, and a dog caused me to fall off my bicycle once, too. Dog owners are supposed to keep their dogs on their property, but they don't always do so, especially out in the countryside where I run and bike.

According to the Center for Disease Control and Prevention, 4.5 million Americans are bitten by dogs each year. Children are more likely to be bitten than adults.

Here are some safety tips I have learned from several sources for avoiding dog bites:
• Never leave young children alone with a dog.
• Avoid direct eye contact with dogs.
• Never get your face near the dog's face.
• If you feel threatened by a dog, don't run or scream; remain still.
• If you end up on the ground, roll into a ball and be still.
• Never disturb a dog while it is eating or sleeping or with its puppies.
• Allow a dog to sniff you before you pet it.
• Remain motionless when approached by an unfamiliar dog.
• If bitten, immediately report the bite to the owner and to the police or other local authorities to see if you need to get rabies shots.

If you have a significant injury, call a good dog bite lawyer soon. He can protect your rights to get fair compensation. To learn about how you prove a dog bite case, visit our website at the "general negligence" practice areas button.

And please be safe around dogs.

TEXTING
Yesterday, Sunday November 1, just as we were turning our clocks back an hour, New York State's anti-texting law went into effect. The new law prohibits using mobile devices behind the wheel for reading, typing and sending text messages. The penalty for violating the mobile-device law is $150. You can text that number by punching only 3 keys! Is this a good law?

From my vantage point, definitely. I just took in a Geneva, New York car accident case in a month ago, where a man was badly injured by a young lady who crossed the centerline of a road and hit him head-on near the city of Geneva, Ontario County, while texting. To add insult to injury, the insurance on the texter's car had expired days before the accident. She had not bothered to renew it. The only recovery available to our client will come from his own "supplemental un/underinsurance motorist coverage".

Of course this was not the first texting crash in Ontario County or elsewhere in New York State. Most famously, and tragically, in June of 2007, a texting teenager who was driving along Routes 5/20 in Bloomfield, Ontario County, with 4 teenage passengers, crashed and killed herself and all her youthful passengers. They had just graduated from high school.

So yes, we need a law that prohibits texting and other uses of mobile devices while driving. But does the law go far enough? The way the law is written, police can issue a driver a ticket for using a mobile device only if the driver is charged with some other violation as well. Think about it: If the driver is speeding and texting, she can get slapped with double whammy, but if she is driving in an otherwise perfect manner, she can text a big "hello" to the cop as she drives away! Sound logical? It's not. Sounds like some behind-the-scenes compromising went on in pushing that law through.

It may not be a strong enough law, but it is moving us in the right direction. There are more and more car crash cases where the at-fault driver was texting instead of paying attention to the road. The car accidents are often deadly because the driver doesn't even brake or slow down before impact ---- he or she is too busy ogling the little screen and toggling the keyboard to notice the impending collision.

Please don't text and drive.