Central New York Injury Lawyer Blog

A recent motorcycle accident in Farmington, Ontario County, New York provides food for legal thought. The Geneva Finger Lakes Times reports that on Monday a motorcyclist, James W. Evans of Victor, drove his motorcycle into the rear of a van that was attempting to make a left-hand turn into a driveway. The motorcycle driver was charged and arraigned on both DWI charges and for not having a valid license. The Finger Lakes Times reports that a passenger on the motorcycle sustained serious physical injuries from the accident.

Here's our legal query: What are Evans' passenger's legal rights to compensation for her injuries? Since the van driver was not at-fault, and Evans clearly was, she must look to suing Evans for his negligent, and drunk, operation of the motorcycle. Surely he is liable to her and, if he had liability insurance on his bike (not likely since he was driving it without a license), she can look to his insurance for compensation for her pain and suffering, lost wages, medical expenses and other loses.

If she brings such a claim, though, she can expect Evans' motorcycle accident lawyer to argue that she herself was at least somewhat to blame for her own injuries because she assumed the risk of climbing on a motorcycle with an intoxicated driver. Whether this argument prevails (and it usually doesn't) will depend in large part on what the passenger knew about Evans' alcohol consumption that day. Was she drinking with him? Did she see how much he drank? Or did he merely pick her up after he had already been drinking? Did he look or act drunk? In sum, did she or did she not know or suspect that he was intoxicated? If a jury decides to blame her somewhat, her case will not get "nixed". Instead, the judge will instruct the jury to "apportion" the blame between her and Evans. For example, if the jury determines that her injuries should be compensated to the tune of $1 Million, but the jury says she was 30% responsible and Evans 70% responsible, then she will get a verdict of 70% of $1 Million, that is, $700,000.

In any event, I think we can all agree it is not a good idea to get into a car whose driver has been drinking. This is even more true for motorcycles, since even minor collisions easily produce major injuries where the passenger is on a motorcycle..

The Geneva Finger Lakes Times reports a collision between two cars at the intersection of County Roads 7 and 27 in Manchester, Ontario County, New York at 8 p.m. yesterday. A motorist in the first vehicle was headed west on County Road 27, stopped at stop sign, but then entered the intersection, apparently without seeing southbound second vehcile, which had no stop sign and thus had the right of way. The impact overturned first vehicle, leaving his passenger, who appears to be his wife, unconscious. She was taken by Mercy Flight to Strong Memorial where she gained consciousness and complained of neck, hip and leg pain.

This is the fourth local accident I have recently reported on caused by a driver failing to yield the right of way at an intersection controlled by a two-way stop sign. The other three blog posts can be read here, here and here.

This Ontario County New York car accident provides us with an opportunity to explain two concepts in New York car accident law: (1) "spousal immunity" and (2) the "seat belt defense".

As for the SEAT BELT DEFENSE, I wrote extensively about this in a prior blog post. As I stated there, the insurance company lawyer for the at-fault driver can defend the case brought by the injured party by alleging that the injuries she suffered were worse because she was not wearing her seatbelt. If so, then the unbelted passenger here will be compensated only for the lesser injuries she would have suffered had she been wearing her seatbelt. In this case, though, the seat belt defense seems likely to fail; seatbelts usually prevent or minimize injuries only in head-on collisions, not in side collisions. In this side collision, the passenger's injuries would likely have been the same whether she was wearing her seatbelt or not.

As for the SPOUSAL IMMUNITY issue, it used to be the law in New York that spouses could not sue or bring a claim against one another for personal injuries. That law has changed, though, and now they can. Unfortunately, many New York auto insurance policies do not cover inter-spousal claims. You have to specifically request spousal coverage in your auto policy. YOU SHOULD CHECK WITH YOUR INSURANCE AGENT AND MAKE SURE YOU HAVE SPOUSAL COVERAGE. It is cheap --- as low as 3 dollars a month --- and well worth the investment to protect your husband or wife from your negligent driving.

If the the married couple whose car was overturned here had "spousal coverage" in their car insurance policy, then the injured passenger-wife can seek to be compensated for her pain, suffering and other loses caused by her husband's negligent driving from their auto insurance. If not, she can't. Don't let that happen to you!

Motor vehicle accidents in Geneva, New York, and the surrounding areas of Ontario County, can teach us a lot of about New York car-accident law. Here's an example: The Geneva, New York Finger Lakes Times reports today that two people were injured in an accident at Payne and Shortsville roads Monday. Scott Briggs of Canandaigua stopped at a stop sign at Payne Road, but then proceeded through the intersection without yielding to a vehicle heading on Shortsville Road through the intersection. Shortsville Road traffic is not controlled by a stop sign. The driver of that other vehicle, Caroline Conrad of Shortsville, had the right of way since she had no stop sign. She and her passenger, Shirley Wagner of Shortsville were taken to FF Thompson Hospital where they were treated for only "minor injuries".

Now here is a fact that might surprise you: Even though Briggs was totally at fault for this accident, and even though Conrad was totally innocent, Conrad probably has no legal claim at all against Briggs. Why not? The answer lies in the type of injuries Conrad is said to have sustained, that is, "MINOR INJURIES". Under New York State car accident law, known as the "no-fault" law, also known as "New York Insurance Law 5102", Conrad and her passenger can't sue Briggs or claim damages from him or his insurance company unless they have suffered a "SERIOUS INJURY" as defined by the law.

So will Conrad and her passenger get no compensation at all? Well, it's not quite that bad. Conrad's no-fault insurance will automatically pay for hers and her passenger's medical expenses and lost wages up to a limit of $50,000 each. But what about pain and suffering compensation for Conrad and her passenger, who were, after all, the innocent victims of Briggs' negligence? None! You have no right to claim any pain and suffering compensation unless you have sustained a "SERIOUS INJURY".

So what IS this "SERIOUS INJURY" I keep talking about? A "serious injury" is defined by the no-fault law as consisting of at least one of the following: death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent and significant or consequential limitation or loss of use of part of your body (such as neck, back, arm) or a non-permanent injury that prevents the injured victim from "performing substantially all of the material acts which constitute such person's usual and customary daily activities" for at least 90 out of the first 180 days after the accident.

Unless Conrad or her passenger can prove one of those types of injuries, they will be relegated to receiving ONLY their "no-fault benefits" (lost wages and medical benefits paid for by Conrad's no-fault insurance) and will NOT be able to claim pain and suffering compensation, or any other compensation for that matter, from Briggs or Briggs' insurance.

And that, in a nut shell, is the New York State no-fault law.

How about this for a New Year's resolution: "I'll practice common sense safety rules to protect myself and my family from harm this year". Pretty good one. And probably a lot easier to keep than the standard resolution of "I'll go to the gym religiously and lose 20 pounds".

You can take a first step toward fulfillment of this safety resolution by starting the New Year out right. Follow these safety tips from this Central New York Injury Lawyer:

If you are HOSTING A PARTY on New Year's Eve, protect your guests (and yourself from liability) by doing the following:

• SHOVEL AND SALT all areas of your driveways and walkways where people might walk. People who are intoxicated are more likely to suffer slip and fall injuries.
• COLLECT YOUR GUESTS' CAR KEYS (perhaps in a bowl) and only hand them back to a designated driver who has had nothing to drink. You might also have some kids home from college who want to make a few extra bucks by acting as "professional designated drivers". They could simply taxi the guests home. Remember, under New York's Dram Shop Act you can be held liable if guests who got intoxicated at your party end up causing a car accident.
• THINK TWICE ABOUT CANDLES, FIREPLACES AND OTHER SOURCES OF FIRE: Fire and alcohol don't mix well. Many of your guests will be drinking more heavily than usual. Do you really want to expose them, and you, to the risks of candles and other fire sources coupled with alcohol-induced clumsiness? Consider battery-operated candles instead. Keep fireplace fires encased in safety screens at all times.

If you are GOING OUT on New Year's Eve, follow these safety tips:

• DRIVE MORE DEFENSIVELY THAN USUAL. There are more drunks on the road than at any other time of year. Don't assume others are going to stop at stop signs or red lights. Assume they are all crazy drunk and drive accordingly!
• DON'T DRINK AND DRIVE. Don't YOU drive after drinking. Don't drink ANYTHING if you are driving on New Year's Eve. The cops will be out in droves looking for an excuse to pull you over and test your sobriety. There is a big national push to crack down on drunk driving this holiday season, as I explained in a prior blog post. Either don't drink, or assign a designated driver, or travel by cab, or plan to sleep over, or arrange for a limo with friend, or --- well, you get the picture -- do ANYTHING to avoid driving after you have drunk alcohol on New Year's.

By following these tips, you'll start your year out right. And maybe for once in your life you'll even be able to keep a New Year's resolution --- that one I suggested earlier --- the one about practicing common sense safety rules all year long.

Here's wishing all my readers and their families a safe and prosperous 2010!

What three things just don't mix well with a picturesque winter landscape such as the one I see as I look out my window in Geneva, New York this evening? Answer: Snowmobiles, drinking and speed. Yes, I know I already recently blogged about snowmobile accidents in New York , but snowmobiling is on my mind because of this wintery weather we are having. Here's some more important safety information for New York sledders:

There are over 130,000 registered snowmobiles in New York State, and almost 11,000 miles of official snowmobile trails. Speed and alcohol are by far the two biggest factors in causing snowmobile accidents and fatalities. The deadliest sledding season ever recorded in New York was the 2002-2003 season, which, according to the New York State Office of Parks, Recreation and Historic Preservation, took 31 lives. Fortunately, the 2008-2009 season (last year) took only 14 lives in New York. The fatalities last year seemed to cluster in the southern Adirondacks, near Long Lake (Hamilton County) and Otter lake (Oneida County).

All the experts say that excessive speed is almost always a factor in snowmobile crashes. Our experience bears this out: At Michaels & Smolak, we handle claims every year on behalf of innocent snowmobilers injured by the negligence, carelessness and recklessness of other sledders, usually involving excessive speed.

I recently found a good, short video with safety tips for snowmobilers, which I want to share with you. Here it is. Sledders, watch it, and do it!:

Local media outlets,including the Geneva Finger Lakes Times, report that four people were injured when a car rear-ended their horse-drawn buggy in Gorham, Ontario County. Both vehicles were headed southeast on County Road 18 about 8:30 in the morning of December 28. The driver of the car, Stephen M. Bara, 58, of County Road 18, says the morning sun glare prevented him from seeing the buggy in time to avoid the collision. The car crash seems to have been severe; the buggy was destroyed and the horse had to be put down. The buggy driver and passengers appear to have suffered serious head and back injuries. Two of the four were airlifted by Mercy Flight to Strong Memorial Hospital in Rochester.

This unfortunate accident illustrates two roadway dangers: (1) horse-drawn buggies, which are quite prevalent among the Mennonite community in the Penn Yan and Gorham area of Yates and Ontario Counties; and (2) sun glare in the morning and evening hours.

Horse-drawn buggies present a danger because they move much more slowly than automobiles along the roadway, and drivers sometimes don't notice them in time to react. But failing to see them is not a legally acceptable excuse. A driver is required to see what there is to be seen on the roadway. A driver paying attention should easily spot a horse-drawn buggy, especially from behind, since they are required to display the orange slow-moving-vehicle triangle on the back. Just like bicycles, horse drawn vehicles are legally entitled to share the road with motorists, and motorists are required to notice them and respect their rights.

As for sun glare, all motorists know that glare can obliterate from their view traffic control devices (stop signs, traffic lights, etc), pedestrians, bicycles, buggies, and other objects in the roadway. A car accident lawyer evaluating a sun-glare auto-accident case needs to consider many factors, including: the time of day, road direction, latitude and longitude, sunrise and sunset times for the day of the year, the path of the sun, the weather conditions, windshield transmission, whether the driver had sun glasses on hand, whether he was wearing them, whether he used his visor to block the glare, and many other factors as well. In our experience with car accident injury cases, a driver does not usually prevail at trial in attempting to shield himself from liability for causing a car accident by claiming that "sun glare" was the culprit. Almost always he will be found at least partially at fault for, among other things, not slowing down or pulling over when sun glare prevented him from seeing the roadway, failing to use sunglasses or failing to use his visor. Simply put, cars are dangerous machines, and a driver should not move his vehicle forward unless he can see everything there is to be seen in the roadway ahead.

This Central New York car accident attorney must once again report a tragic car crash in the area. As usual, I will report the facts, and then discuss the legal ramifications.

Here's what happened: According to the Geneva Finger Lakes Times, a three-vehicle crash ocurred across from Seneca Lake State Park on Routes 5/20 in Geneva Saturday night around 9:00 p.m. Richard Riley, of Waterloo, New York, was pronounced dead at the scene. Riley had been driving the wrong way in the westbound lanes of Routes 5/20 when his car struck a westbound SUV driven by Frederick Cierei of Waterloo, which SUV was then rear-ended by another westbound vehicle driven by Kimberly Lorenz of Waterloo. An autopsy performed at Geneva General Hospital showed that Riley's blood-alcohol content was more than twice the DWI threshold. Cieri, who had been trapped in his vehicle, had to be extricated by personnel from Border City and Geneva Fire Departments. Cieri was brought to Strong Memorial Hospital in Rochester for treatment of a broken leg. Cieri apparently had two passengers who were also injured. We have no reports regarding injuries suffered by Lorenz.

This car crash had to be horrendous for all involved, and a double tragedy for Riley's family, who has to come to grips not only with his death, but with the knowledge that their family member caused the injury of several innocent people by deciding to drink and drive. Unfortunately for Riley's family, the legal ramifications of his actions will not end with his death. Riley will clearly be found at fault for having been driving intoxicated and having been heading the wrong way against traffic. Ms. Lorenz and the Cieri's, all innocent victims, will have personal injury claims against Mr. Riley's estate for any "serious injuries" they have suffered, as well as for any excess economic loss. While Riley's personal auto insurance will certainly cover those claims, his insurance policy limits might be inadequate to cover all the pain, suffering and excess economic loss of the injured victims. In that case, the injured victims' car accident lawyers, may decide to pursue the assets of Mr. Riley's estate. If they are competent and thorough motor vehicle injury lawyers, they will also want to check the victims' own auto insurance for possible "SUM" (supplemental underinsured motorist) coverage. Please see my prior blog post for a full discussion of SUM coverage, and how to check for it.

Readers, please have a safe holdiay season. Don't drink and drive.

Child safety is a major personal concern of mine. I have five children; three grown, and two not quite. As such, I know first-hand the worries of a parent about dangerous or defective toys. Although toys are not always safe in the U.S., I believe we have the safest toys in the world. Why?

The most potent engine in America for protecting consumers from dangerous and defective products, including toys, is the products liability lawyer. Defective product attorneys in Central New York and elsewhere have saved thousands of lives by forcing manufacturers of dangerous or defective products to make their products safer or else pay the consequences by way of large jury verdicts for pain and suffering, lost wages, wrongful death and medical expenses.

The second most powerful engine in the U.S. for making consumer goods safer is arguably the Consumer Product Safety Commission (the CPSC). It is the U.S. agency charged with protecting consumers from dangerous and defective products. The CPSC decides when "recalls" of products are required. In this year alone (2009) the CPSC recalled 466 products. For example, the CPSC recently ordered the recall of Roman shades and roll-up blinds after the shades had already caused five deaths and 16 near-strangulations. The agency monitors the safety of about 15,000 products, including household goods, sports equipment, furniture and toys. (Other Federal agencies are charged with monitoring, and recalling if necessary, dangerous automobiles, food, beverages, pesticides and cosmetics).

But the CPSC does not always put safety first. Although a 2008 congressional overhaul of the CPSC put more emphasis on childhood safety and increased the CPSC's budget for this purpose, the agency's commissioners voted last week to delay, for a second time, requiring certification and independent third-party testing of lead in children's products. Lead in children can cause, among other harms, permanent brain damage. The agency appears to have bowed to pressure from manufacturers who were worried about the business cost of the new requirement. In another compromise of safety, the CPSC commissioners voted to permit manufacturers and importers to rely on lead testing from the suppliers of zippers, paint, buttons and other parts that are used in toys, clothing or other children's products, rather than have them test the entire finished product.

What does this mean for you, the consumer? You still can't trust that the toys and other products you buy for your kids are lead-free. Be careful about what your infant or toddler puts in his or her mouth.

Upstate New York is blanketed in snow this Christmas season. So beautiful -- and so dangerous for motorists. Snow is especially plentiful in the Oswego, Syracuse and Buffalo areas (the "snow belt"). Buffalo, Oswego and Syracuse motor vehicle accident lawyers have already begun fielding telephone calls from distraught family members of victims of snow or ice-related car accidents.

Here's a tragic example of the havoc ice and snow can reap on motorists: This week a Newfane high school teacher, Christina Portale, of Lewiston, was killed in the Wrights Corners area, Niagara County. She was eastbound on Ridge Road, between Johnson and Purdy roads, when she lost control due to slippery road conditions. Her vehicle entered the westbound lane, where it was struck by a tractor-trailer. Firefighters extracted her using the "jaws of life", and then had Mercy Flight fly her to Erie County Medical Center, but she died in the emergency room. Portale was only 29 years old and left behind two small children.

A motorist is required to maintain control of her vehicle. Most drivers don't do everything they can to avoid slipping and sliding on icy or snowy road conditions. There are different kinds of icing conditions, but the most deadly is "black ice", which is nearly invisible, and even more so at night. Motorists in upstate New York must learn to anticipate black ice, which is usually formed when the roads are wet and temperatures drop sharply. The first black ice usually forms on bridges and overpasses, in shaded areas, in low-lying areas, and on hilltops exposed to wind.

How do you protect yourself and your family from deadly icy conditions on roadways? The first and best defense is, just don't drive. Stay home if the temperatures appear to be dropping below freezing where there is moisture on the roads. If you must go out, follow these tips:

• Go very slowly, especially around curves and down hills or grades.
• Avoid aggressive braking or steering. All your driving actions must be slow, deliberate, and in anticipation of sliding.
• stop and get out of your car from time to time to check the road surface for ice.
• Listen for that "swishing" sound of the water beneath your tires --- if you stop hearing it, get out and check the surface of the road!
• Double your following distance.
• Practice defensive driving in every respect- you may be able to avoid slipping and sliding, but the other guy might not!
• Remember that ice forms more quickly on asphalt or concrete than on a gravel road.
• If you start to slide, ease your foot off the accelerator. With non-ABS brakes, tap lightly on the brakes to gradually slow down. With ABS brakes, apply steady and continuous pressure.

Be safe this winter --- avoid icy or snowy driving conditions, but if you must drive in such conditions, follow the safety tips above. Avoid being the victim of an ice-related motor vehicle crash.

Today Justice was served to someone who did a disservice to justice. U.S. District Judge Gary Sharpe sentenced ex-New York State Supreme Court Justice Thomas J. Spargo to 27 months in prison for attempted extortion and bribery. A federal jury convicted Spargo on Aug. 27, 2009 for soliciting a $10,000 payment from a personal injury attorney with cases pending before him. Spargo figured the lawyer would be easy-pickings because he had recently settled a personal injury case for $3 million, thus earning a substantial fee. The trial evidence showed that when the personal injury attorney declined to pay the bribe, Spargo increased the pressure to pay.

It goes without saying that "Judge" Spargo's behavior was despicable. Think about the implications of his actions. Imagine you have been injured in a car accident, a construction accident, or by medical malpractice, or you have suffered damages from legal malpractice. Your life is permanently and irreversibly altered. You have one chance, and only once chance, to right the wrong, to seek compensation, to hope for fair and impartial redress. Your day in Court finally arrives. But, unbeknownst to you, the judge who is to decide your case, or to instruct the jury about your case, has extorted, and accepted, $10,000 from the opposing side's lawyer! Does that make you feel confident he will do you JUSTICE? Of course not. He is more likely to do "JUST US" with the opposing counsel as a payback for having his palms greased.

From our years of experience bringing personal injury and medical malpractice cases to courts in New York State, we at Michaels & Smolak can assure you that this kind of judicial behavior is exceedingly rare. We have never seen it in our many years of personal injury and medical malpractice litigation. We may disagree with our judiciary's decisions from time to time, but we have confidence in the integrity of the system.

It is true that one bad apple does not spoil the whole bunch, at least not when you toss it out in time, as was done here. In the end, justice here was done.

Prescription errors and medication mistakes are as common in Central New York, including Syracuse, Auburn and Geneva, New York, as anywhere else in the United States. Every year they cause about a million deaths and injuries in the U.S. Prescription-error lawyers in New York, and everywhere for that matter, know that there are generally two possible culprits: Either the doctor prescribes the wrong drug or dosage or it's the pharmacist's fault for filling the wrong dosage or dispensing the wrong medication. Either way, it constitutes medical malpractice and the victim has a right to seek compensation against the doctor or pharmacist for the injuries suffered, or, the family of a deceased victim has a right to seek compensation for the wrongful death of their loved one.

Here's a recent example of a prescription malpractice lawsuit: The Detroit News reports that the family of a man who was "issued a lethal dose of a chemotherapy drug" by Rite Aid pharmacists sued the company. The patient, who suffered from melanoma, was instructed to take 14 capsules per day of Temodar, ten times the usual dose, and double a fatal dose. In an out-of-court settlement, the doctors who prescribed the dose admitted the error (as well they should!).

In fact, prescription errors are one of the most common types of medical malpractice. What causes a prescription mistake? The most common causes are:

• Physician's handwriting is not clear or is illegible (physicians have infamously bad handwriting, but this is INEXCUSABLE on something as important as a prescription)
• Physician simply wrote down the wrong drug or doses
• The pharmacist misread the drug or doses
• Manufacturer or pharmacist placed look-alike packages in a row.
• Alphabetical arrangements put sound-alike products together.
• Pharmacist mixed your name up with another customer's
• Telephone misunderstandings: The pharmacist might not hear the doctor correctly over the phone, and as a result, writes down the wrong drug or doses.
• Allergies not taken into account: Some patients have known allergies to certain drugs, yet are given these medications by mistake, or because no one asked the patient about his or her allergies.
• Contraindications not considered: Some medications cannot be taken with other drugs. While manufacturers must list the known contraindications, sometimes these are not carefully followed.

Here are some tips on how to protect yourself from medication errors:

• LISTEN TO YOUR DOCTOR as he prescribes medication to you. Write down what he says about the name of the drug, the doses, and the purpose.
• READ THE LABEL CAREFULLY when your pharmacist hands you the drug. Check for the name of the drug, the condition it is prescribed for, and ensure the name of the drug is the same the doctor told you he was prescribing for you. Don't assume it's the same drug with a different, generic name. Ask the pharmacist about any discrepancies between the name of the drug you are given and the name the doctor told you.
• DON'T SIGN WITHOUT READING. The paper the pharmacist pushes across
the counter at you -- the one you have been signing automatically - essentially says that you agree that you have been given the information you need. Don't sign it without making sure you understand your prescription.
• EXAMINE THE DRUG. Does it look like what you expected? If it's a refill, it should look the same as the previous batch. If not, ask the pharmacist.
• MAKE AND KEEP LISTS of all medications you are taking, including the dosage, etc.
• RECITE YOUR ALERGIES to any doctor when prescribing new medication to you.
• BE ON THE LOOKOUT FOR SIDE EFFECTS. If you feel "funny", strange, or sick after taking a new medication, call your doctor immediately.

Snowmobiling is a favorite winter activity of many central New Yorkers. New York boasts over 10,000 miles of funded or groomed trails, many of which are located in Onondaga, Oswego, Cayuga, Seneca, Wayne, and Ontario counties. Sadly, every winter brings new snowmobile fatalities and serious injuries to upstate New Yorkers. Winter has just started and already the snowmobile accidents have begun. Unfortunately, Syracuse, Oswego and Auburn area snowmobile accident lawyers will soon be getting those unsettling calls from the family of those suffering devastating injuries from snowmobile collisions. I just read about an accident this week in Pennsylvania, where a snowmobile collided with a horse and buggy, killing the snowmobiler.

In past years, there have been somewhere between 300 and 400 snowmobile accidents in New York State each year, with about 25 per year being fatal. Unsafe speed is listed as the cause of the majority of snowmobile accidents, and of those, alcohol consumption often plays a role. Most snowmobile collisions are with fixed objects, such as trees, after the operator loses control and leaves the trail, but crashes with other snowmobiles, cars or trucks are not uncommon.

Before you take out your "sled" this winter, make sure you are familiar with New York State laws regulating snowmobiling. If you are going to snowmobile on any property other than your own, you need to register your snowmobile with the Department of Motor Vehicles. You also need to get auto insurance for it. All operators and passengers of snowmobiles are required to wear helmets. Local ordinances might contain additional rules regulating snowmobile use.

Also, make sure you are familiar with safety guidelines for snowmobilers. Here are the key ones:
• SPEED: Always drive at speeds at which you can stop safely if a dangerous object suddenly appears.
• SIGNS: Stick to marked trails; follow the trail signs, and obey speed limit signs.
• ROADS AND CARS: Use extra caution when crossing roads, or when traveling on roads or on shoulders of roads. Motor vehicles should be feared. They are bigger and faster than your snowmobile. Leave plenty of space for them to pass you.
• TRAILS: Some trails are narrow and hard to judge, especially at night. Go slowly on narrow trails so you can react to oncoming riders.
• NIGHT: At night, check your headlights, taillights, and brake lights before you ride. Do not "override" your headlights at night, which means traveling so fast that you pass through the area lit up by your headlights before you can safely stop.

Be safe as you enjoy another central New York "winter wonderland".

This past fall this central New York accident lawyer toured upstate New York State, stopping in Albany, Syracuse, Rochester and Buffalo, to lecture other personal injury lawyers about Municipal Law Liability developments (see my prior blog about it) in New York State. One thing I told other personal injury lawyers about was a split in the appellate courts in New York on a municipal law legal issue. To understand the issue, you first have to understand the law in New York regarding emergency vehicle drivers, which include police officers, deputy sheriffs, State troopers, ambulance drivers and others. The law in New York is very protective of such emergency vehicle drivers. New York law wants such drivers to feel that they can perform their emergency driving without worrying too much about getting sued if they cause an auto accident. The relevant statute is New York Vehicle & Traffic Law 1104, which says you can't sue such drivers if they cause an accident due to mere carelessness or negligence. Their driving has to be a lot worse than that. It says that you can only sue emergency responders for auto collisions when their driving demonstrates a "reckless disregard" for the safety of others.

Now let's get into the issue that divided New York's appellate courts. Assume that an emergency responder such as a police officer or ambulance driver collides with another automobile and the emergency driver is injured. Assume the emergency driver believes the accident was the other driver's fault and sues him for pain and suffering compensation and other losses. Assume further that the other driver, in his defense, says, "hey, the accident was partly your fault too, and so you should only get partial recovery your loses". That defense is known in the legal world as the "comparative negligence" defense.

The issue that divided the courts in New York was whether, when such a defense is raised, the sued driver has to prove that the emergency responder was merely "negligent" or whether he has to prove that the emergency operator acted with "reckless disregard" for the safety of others. New York's Third Judicial Department in Ayers v. O'Brien had held that such a driver had to show only "negligence" while the Second and Fourth Judicial Departments had ruled that he had to show that the emergency vehicle operator was "reckless". This week New York's highest Court, the Court of Appeals, agreed with the Third Department that only negligence must be shown.

What does this mean for New York's emergency vehicle operators such as police officers, deputy sheriffs, State troopers and ambulance drivers? It means that if they sue another driver for injuries suffered in a car crash, they can't claim that their own responsibility for the crash counts only if they were "reckless". Their mere "negligence" will count against them. Earth shattering news? No. But worthy of a blog post? Sure hope you think so.

The Syracuse Post Standard reports that a Syracuse man, Harold Field, died Friday from auto accident injuries suffered in a three-car collision at the intersection of Stump Road and State Street Road in Skaneateles. The newspaper reports Field had injured his head, pelvis and leg in the accident. Field was driving east on Stump Road when he failed to stop at a stop sign and struck a vehicle driven by Shawn McLaughlin of Auburn, New York, which was traveling south on State Street Road. The crash forced McLaughlin's car into the path of another car, driven by Matthew Virkler of Baldwinsville, who was traveling north on State Street Road.

Legal questions arise from this tragic accident.

First, can Harlod Field's family bring a claim for wrongful death? Almost certainly not. Since Field was at fault for failing to observe or obey the stop sign, his estate (family) has no claim against anyone for wrongful death. Nevertheless, Field's no-fault insurance policy will pay any medical expenses incurred before he died up to $50,000 pursuant to New York no-fault law as well as the standard $2,000 no-fault death benefit.

Second, is Field's estate, and his insurance carrier, liable to the other two innocent drivers for their injuries and car damage? Almost certainly. Since Field was at fault, the other two injured drivers will have valid claims against his estate and his insurance carrier for pain and suffering and any medical expenses and lost wages not covered by no-fault.

A few weeks ago I wrote a blog about another local car accident caused by the failure to obey a stop sign. Driver inattentiveness is usually the cause, though sometimes the insurance companies for the drivers who ignored a stop sign attempt to avoid responsibility by claiming that the stop sign was obscured by bushes or trees, or by claiming that sun glare prevented their insured from seeing the sign.

Stop signs only work, obviously, if people see them and obey them. In the U.S., more than 40,000 people die in car crashes each year. It is the leading cause of death for people under 40 years old. On average of 112 people die each day in car crashes in the U.S. Many of these deaths happen at intersections because a driver failed to observe a traffic control device (red light, stop sign, yield sign, etc.).

Pay attention when driving, especially at intersections. Do not allow yourself to be distracted by telephones or other electronic devices. Keep your eyes on the road. Be safe.
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New York's Labor Law section 240 is a special New York statute aimed at compensating construction workers, and their families, who are injured or killed when they fall or when objects fall on them during construction work (and in some other circumstances as well). This law allows all New York workers, which obviously includes our local construction workers in Syracuse and in the surrounding central New York area, to sue for their lost wages, medical expenses, pain and suffering, and wrongful death, where the construction site did not provide required protection from workers falling or from objects falling on workers.

In what is perhaps a watershed case, New York's highest Court, the New York State Court of Appeals, has ruled that this statute protects construction workers not only when they "fall" and when something "falls" on them, but also in other circumstances where the "effects of gravity" injure or kill a construction worker, and a safety device could have been used to prevent the injury.

In Runner v. New York Stock Exchange, the injured worker was seriously and permanently maimed in both of his hands when he and some co-workers attempted to move an 800-pound reel of wire down a set of about four stairs. To prevent the reel from rolling out-of-control down the stairs, the workers had tied a rope to the reel and then held onto the rope as the reel descended the stairs. This method proved disastrous; as the reel descended, it pulled the worker toward a metal bar to which one end of the rope was tied. The injured worker's hands were severely injured as they jammed against the metal bar. Experts testified at trial that a pulley or hoist could have been used to safely roll the reel down the stairs. The jury found against the injured worker, but his construction accident lawyer appealed to the Court of Appeals, which found that this was the wrong result. Even though nothing fell on the worker, and he did not "fall" from a height, his injuries were caused by a violation of Labor Law section 240 because that statute is meant to protect workers against the effects of gravity generally on a construction site, not just "falls".

What does this mean for New York construction workers? It means more protection. It means that construction workers will be able to sue the owners of construction sites, the general contractors, and others, not only when objects fall on them, or they fall from a height, but also in other circumstance where the "effects of gravity" cause the injury, and some safety device could have been used to prevent the injury. It means general contractors, owners of construction sites, and others responsible for worker safety on construction sites, must make their worksites even safer for New York's construction workers.

This central New York personal injury lawyer was born and raised in Syracuse, New York. My law offices are in Auburn, Cayuga County. I reside in Geneva, Ontario County. I am therefore fully rooted in central New York and the Finger Lakes region. But I like to travel. In fact, as a young man, I spent seven years living abroad. I speak several languages, including French and Spanish. My travels have taught me many things. One lesson I learned is that United States' personal injury law is the best in the world. Let me explain by telling a story.

One evening, while visiting my in-laws in Guatemala City, Guatemala, I was walking down a dimly lit side street to get to my in-laws' house. I came inches from stepping into a barely visible 3-foot wide, and who-knows-how deep, hole in the middle of the street. Municipal workers had created the hole and left it uncovered and un-barricaded. If I had taken one more step, I would have fallen into this hole and been seriously injured.

Why did the municipal employees leave the hole they were working on uncovered with no warnings or barricades? Because it did not matter to them. In Guatemala, a citizen can't sue the City for personal injury, pain and suffering, lost wages and medical expenses for municipal workers' negligence like we can in the United States. Since there was no price to pay, what incentive did those workers have to be careful? Answer: none.

Our civil justice system, and the personal injury lawyers who champion it, are responsible for the comparatively safe living standards that we enjoy in the United States, including: corporations providing consumers with safer products, doctors and hospitals employing safer medical practices on their patients, employers creating safer working conditions for their employees, landlords providing their tenants with safer apartments, owners of commercial business eliminating unnecessary hazards on their premises, and a host of other safety benefits that we Americans simply take for granted. Without our personal injury lawyers, and our generous civil justice system, none of these actors - manufacturers, doctors, employers, landlords, commercial property owners --- would have the strong incentives they now have to make safety a top priority.

Travel the world and you will see what I mean. Without our tort system, our lives would be very different. We would have to contend with much more of what many people in the world find "normal": unguarded holes in urban sidewalks and streets; chemical plants releasing harmful chemicals in neighborhoods; torturous mountain roadways with no guardrails; incompetent medical professionals performing unsafe procedures; toxic waste dumps near heavily populated areas; tainted and unsafe food supplies; dangerous drinking water; police brutality with impunity. The list goes on and on. All these evils are prevented here, in large part, by a civil justice system that allows victims of careless, negligent or intentional wrongdoers to be compensated fully for the harm caused.

Personal injury trial lawyers make society safer for everyone. That's why I am proud to be one.

Like most people, I have been invited to several holiday-season parties this year. And like most people, I like to drink socially. But unlike most people, I am keenly aware of the destruction that drinking and driving can cause. Why? Because this Syracuse, Auburn and Geneva area motor-vehicle-accident lawyer represents seriously injured victims, and the families of deceased victims, of drunk driving in their claim for compensation for lost wages, medical expenses, pain and suffering, and other losses. Unfortunately, this year the "spirit of Christmas present" will most likely mimic the "spirit of Christmases past"; several central New Yorkers from the Syracuse and Finger Lakes areas will be injured or killed by drunken holiday revelers.

New federal traffic safety data proves once again that the daily death toll from drunk driving is higher during the holiday season than the rest of the year. The National Highway Traffic Safety Administration (NHTSA) recently released data showing that, from 2001-2005, the average death toll per day from alcohol-related motor vehicle accidents in the U.S. was about 36 deaths, but that this average shot up to 45 during the Christmas season, and then catapulted to an astounding 54 deaths per day during the New Year celebrations.

As a result, the NHTSA has announced a nationwide crackdown on drunk driving for this holiday season. The campaign, whose slogan is "Over the Limit, Under Arrest", is supported by a $7 million nationwide television and radio ad campaign, running from yesterday, December 16, through January 3. Expect local law enforcement to be out and about in force, especially during the evening hours, checking for drunk driving.

Don't drink and drive this holiday season, or ever. A DWI arrest can ruin your life. A DWI accident can end your life, as well as those of innocent victims of your careless decision to drink and drive. Yes, it CAN happen to you. Find a designated driver, take a cab, or just don't drink at holiday parties this year.

I recently posted a blog entitled "Why Upstate New York Verdicts Are Much Smaller than Downstate" . I explained that New York City juries tended to be more generous than upstate juries because big-city dwellers generally tend to be "socially" oriented while rural people are more "self-sufficiency" oriented.

One thing I did not mention in that post is that, even within upstate, the size of a personal injury or medical malpractice verdict tends to vary between counties. Let's just take, for example, the counties where Michaels & Smolak tries most its cases. I have attempted to list them here in order from biggest-verdict counties to smallest-verdict counties:

Erie County, Monroe County, Onondaga County, Ontario County, Oswego County, Cayuga County, Seneca County, Wayne County, Yates County.

As shown above, a personal injury or medical malpractice victim is best off in Erie County. Juries there, by upstate New York standards, are very generous. In my view, the average Erie County verdict is about twice that of most other upstate New York county verdicts. Why? Well, Erie County contains Buffalo, a big blue-collar city. As I explained in my previous blog post, this makes for a more generous jury. The juries' message there, stated in dollar terms, tends to be, "defendant, you really injured this poor plaintiff, so pay up in full for everything he has been through". This explains why Monroe County and Onondaga County are also high on the above list; they contain the cities of Rochester and Syracuse, and juries there, as in most cities, tend to give more pain and suffering compensation than rural juries.

But a personal injury or medical malpractice plaintiff will generally fair far worse in Wayne or Yates County. Juries there tend to be exceedingly "tight" with their personal injury and medical malpractice verdicts. Those are very rural counties, so juries there tend to have the "self-sufficiency" mindset. Their message to the injured plaintiff, stated in dollar terms, seems to be, "plaintiff, stop your whining, get on with your life, and, by the way, we don't believe in compensating pain and suffering with money".

How do we choose what county to "venue" (place) a case in? Well, the law requires that we venue the lawsuit in a county where at least one of the parties resides. If both the plaintiff and the defendant reside in the same county, then we have no choice. But sometimes we have a choice. For example, if the plaintiff resides in Yates County, but the defendant resides in Erie County, we can choose to "venue" the case in either of those two counties. Given what I said before about the difference between a typical Yates County verdict and an Erie County verdict, that would be a no-brainer!

One last point: Sometimes, especially if either the defendant or the plaintiff is from out of state, we can choose to venue the case in Federal Court, instead of State Court, which will usually put the trial in a bigger city such as Rochester or Syracuse.

The tendency of juries in certain counties to give big or small verdicts is not the ONLY thing we consider when deciding where to venue our cases, but it certainly is, for obvious reasons, a BIG consideration.

Sadly, seriously injured victims of motor vehicle crashes in upstate New York are often surprised to learn that neither the negligent driver nor the owner of the at-fault car had purchased sufficient "liability" insurance to fully compensate them for their pain and suffering and other losses.

Why? In the Syracuse area and in all of central New York, including Geneva, Auburn, many people are of limited means (in case you haven't noticed, good jobs are hard to come by around here!) and thus purchase only this cheapest insurance. This minimal automobile liability insurance in New York State pays out a maximum of only $25,000 per injured person and $50,000 per accident.

So what do you do if you are seriously injured by a minimally insured car? Well, you have the option of refusing to accept the insurance policy limits. You can instead sue the negligent driver (and the car owner) and hope to get at their personal assets. But what personal assets? We just said that Upstate New Yorkers with small insurance policies generally have limited income. As a corollary, they also have no assets worth pursuing.

So again, what do you do about it? There is only one thing to do, really: Find additional insurance! The minimal policy insuring the car that struck you might not be the ONLY insurance available. Look around for more!

A good motor vehicle accident attorney will chase down ALL possible liability insurance that might provide additional coverage to his or her client. Generally here's how this Central New York Injury Lawyer does it:

• First, I check the police accident report to see which insurance company insured the at-fault car.
• I get a statement in writing from that insurance company as to the insurance coverage available under its policy.
• I ask this insurance company representative to check with its insureds (the driver and owner of the car) for additional and excess insurance policies.
• I write directly to the driver and the owner of the car and tell them they must turn my letter over to any additional insurance carriers they have.
• I investigate whether the at-fault driver might have been "on the job" for an employer at the time of the accident. If he was doing his employer's business at the time of the collision, then the employer is liable, too, and any liability insurance the employer has will kick in. Also, unlike the employee, the employer usually DOES have assets worth going after!
• If the driver is not the same as the owner of the at-fault vehicle, this is fertile ground for turning up additional insurance. If such a driver owns his own car, or lives with a relative who owns a car, there will be additional insurance coverage there.
• Finally, I carefully review the auto insurance policies of my client and of any relative he lives with. There is often some hidden extra insurance in there. It is called "supplemental underinsured motorist" (known as "SUM") coverage. If the SUM policy limit is more than the liability limit for the at-fault vehicle, then SUM provides additional insurance coverage for the pain and suffering and other losses.

If you or a loved one has suffered a serious injury from a motor vehicle accident, make sure your attorney is experienced enough to know how to explore all avenues of potential liability insurance coverage.

This holiday season, hundreds of central New Yorkers will unknowingly purchase dangerous defective toys in malls and stores in Syracuse, Rochester, Auburn, Geneva, Waterloo and other upstate cities. Dangerous Toys Lead to Injury, Death and, eventually, to defective product Lawsuits.

According to the most recent U.S. Consumer Product Safety Commission data, last year, 2008, defective toys caused the deaths of 19 children and resulted in more than 82,000 emergency room visits by children under age 5. Many of these injuries and deaths lead to product liability lawsuits in which the injured or killed children's parents alleged that the toys were defective or overly dangerous.

Despite all the bad publicity dangerous toys bring to their manufacturers, toy makers continue to make some toys that are unreasonably dangerous for children, especially small children.

The U.S. Public Interest Research Group (PIRG) recently released its 24th annual "Trouble in Toyland" report. Once again, the three most dangerous characteristics of the toys on its list were: (1) choking hazard; (2) excessively loud; (3) contained toxic chemicals.

CHOKING HAZARDS: This is the number one cause of toy-related deaths. The danger is mostly for children three years old or younger. The good news: You can easily learn to identify a choking hazard. Check toys to see if they have small parts that can fit into a toilet paper tube. If they can, the toy is a choking hazard. Also, avoid small balls and round objects for small children. Balls should be at least 1.75" in diameter. Also, be aware that balloons, and pieces of balloons, can completely block a child's airway. Children under 8 years of age should never be given balloons.

NOISE HAZARDS: Children's ears are more sensitive than adults', and thus are vulnerable to noise-induced hearing loss. If a toy seems too loud for an adult's ears, it is surely too loud for a child's. Most toys should be no louder than 85 decibels at 10 inches away. If the toy seems too loud, cover the area emitting the noise with duct tape to reduce the volume.

TOXINS: Children are more vulnerable than adults to harmful chemicals because of their young, developing systems. The two most important chemicals to avoid are lead and phthalates. Lead is still often found in costume/novelty jewelry. Young children who tend to put things in their mouths should not be given such "toys". Lead exposure in children can lower IQ, delay mental and physical development, and even lead to death. The other chemical mentioned, phthalate, is linked to reproductive defects, genital abnormalities and early puberty. Phthalates are used to make plastic softer. A 2008 federal law banned them in children's products. When buying soft plastic toys, look for toys labeled "phthalate-free." Avoid plastic bath toys or bath books, unless they have the label.

PIRG has also made available a new interactive tool that can be accessed by computer or smart phone to help parents avoid dangerous toys. Parents can also report an unsafe toy on the site, which PIRG will then investigate.

Buy safe toys. Have a happy and safe holiday season,

In my last blog, I wrote about a real car-on-pedestrian accident in Cicero, New York. That got me thinking about pedestrian safety. Car accident lawyers in New York, and everywhere, see a lot of cases involving cars striking pedestrians. It's too common. And it's not a fair match; the car always wins!

Automobile drivers are largely at fault when their vehicle strikes a pedestrian. Usually the driver fails to observe the pedestrian, drives too fast in an area of pedestrian traffic, or ignores pedestrian crosswalks..

Pedestrians, however, can take some simple steps (pun intended!) to protect themselves from inattentive, careless or speeding drivers. Here's my list of top safety tips for pedestrians:

• Use sidewalks where available.
• If there are no sidewalks, walk facing traffic (you are legally required to do so)
• At night, wear light clothing, and better yet, reflective equipment.
• When crossing a road, or driveway, never assume drivers see you (especially at night).
• Try to make eye contact with a driver before you cross, so you know he sees you.
• When crossing, be aware that shrubbery, parked cars, or other objects may be blocking a driver's view of you as you step out.
• Use crosswalks where available (you are legally required to do so).
• When in doubt, wait before crossing. Don't assume a nearby driver sees you and is stopping for you.
• If you must walk along the side of the roadway or on the shoulder because there is no sidewalk, always stay as far to the side as you can.

You have surely heard the expression "drive defensively". Same goes for walking. "Walk defensively". Follow the rules outlined above. Be safe, not sorry.

Today I read news reports that, on Friday evening, December 5, a woman drove her car into a pedestrian in Cicero, Onondaga County, New York. Twenty-nine-year-old Leann Doyle of Canastota struck 51-year-old Joanne Schoenfelder of Bridgeport while she was standing in front of a residential mailbox on Route 298. The car accident happened at about 7:30 p.m. The Ciceroauto accident victim was taken by ambulance to SUNY (University Hospital) in Syracuse where she was pronounced dead. It is not clear whether the pedestrian killed by the car was standing in the roadway or on the shoulder.

I didn't read these news reports like a NORMAL person. Instead, by force of habit, my personal-injury-lawyer brain began dissecting and analyzing them as I read. Let me share with you my legal thoughts as I read of this tragic accident.

First, without knowing more about this case, it is hard to determine whether the driver, pedestrian, or both were at fault. If the pedestrian's family files a claim for wrongful death and conscious pain and suffering against the driver, the jury will be allowed to tag each side for its percentage of fault. This directly affects the verdict. For example, if the jury determines the case is worth $1,000,000, and that the driver was 70% at fault, but the pedestrian was 30% at fault, the plaintiff (pedestrian's family) would end up with only 70% of the $1,000,000, which is $700,000. The verdict is "discounted" to the tune of the victim's percentage of fault.

In this Cicero case, what would make the pedestrian "at fault", at least a little? Perhaps she was standing out in the roadway, rather than on the shoulder, or was wearing dark clothing (it was night time), or was standing with her back to traffic, or was talking on her cell phone, was distracted, was not watching traffic, etc. Believe me; the driver's insurance company lawyer will be combing the evidence for such arguments.

I also thought about how the proof would go at trial. Obviously, the dead pedestrian can't testify. The driver is thus the only living eye witness to the accident. Surely she will give testimony favorable to herself. Won't this make it easy for the driver's insurance company to beat the pedestrian's claim?

Not so fast. New York State courts have adopted a rule known as "the Noseworthy Doctrine" (first established in the case of Noseworthy v City of New York, 298 NY 76), which permits the jury to draw an inference in favor of the dead victim of a car accident such as this one. Since the dead victim can't speak for herself, the law allows the jury to tip the scales a little in her favor.

The physical evidence at the scene may also help the pedestrian's case. For example, the length and location of the skid marks can help determine the speed and location of the car in the roadway, and the physical damage to the car and injuries to the pedestrian can help determine the location of the pedestrian.

In sum, this pedestian's family needs to quickly retain a good wrongful death lawyer who understands New York State motor vehicle accident law and how to properly investigate such claims.

Central New York is anything but white so far this holiday season. In fact, it's down-right green and balmy here in the Syracuse, Auburn and Geneva, New York regions! Many of us upstate New Yorkers are hoping for some snow right about now- at least to take us through the holiday season. (Careful what you wish for --- it might stay through March!)

While we upstaters are "dreaming of a white Christmas", the United States Fire Administration (USFA) is dreaming of a . . . SAFE Christmas.

And justifiably so: Every holiday season needless house fires kill about 400 people and injure about 1,650 in the U.S.

The USFA offers these simple safe-holiday tips (and lots more, too --- visit the USFA's website here):

CHRISTMAS TREES:
• Old, dried out Christmas trees are a fire hazard and should be avoided. You can identify them by knocking the tree trunk on the ground. If lots of needles fall off, it has probably dried out.
• Avoid placing the tree close to a heat source. (The heat will dry out the tree, making it more flammable.)
• Do not leave a tree up for longer than two weeks. (Get it later and get rid of it earlier!)
• Keep the tree stand filled with water.
• When the tree becomes dry, get it out of the house. (A dry tree is a major fire risk.)

HOLIDAY LIGHTS
• Check Holiday lights for frayed wires, gaps in the insulation, broken sockets, kinking or wear and tear.
• Do not link more than three light strands (unless the directions say it is safe to do so). Connect strings of lights to an extension cord before plugging the cord into the outlet.
• From time to time, check the wires - if they are warm to the touch, get rid of them.
• Keep holiday lights on only while you are awake and near them.

HOLIDAY DECORATIONS:
Decorations should be nonflammable or flame-retardant and placed away from heat sources.

NEVER PUT WRAPPING PAPER IN A FIREPLACE:
It can cause the fire to surge, and send off sparks and embers.

SMOKE DETECTORS
Check them to make sure they are working on all levels of your home.

We at Michaels & Smolak wish you all a happy and SAFE holiday season!

In a New York product liability case, the jury recently awarded $8.75 Million to a pedestrian whose leg was crushed, and later amputated, when he was hit by a 1987 Volvo 740 wagon. The car did not have a "clutch starter safety switch", which requires the clutch to be pressed all the way down before the standard transmission car can be started. This safety device prevents a driver from accidentally starting the vehicle while in gear, thus causing the car to lurch forward, which is exactly what happened in this case. Volvo did not start installing these devices in its vehicles until the year 2000. One of the representatives for Volvo admitted, under oath, that the safety switch was available back in 1987, but that the company had declined to install it on cars sold in the U.S. In finding Volvo liable for this decision, the jury considered the fact that the safety device would have cost Volvo only $5 to install. This large New York defective product award includes compensation for medical expenses, lost earnings, and past and future pain and suffering.

This case demonstrates an important principle of product liability law: Whether a product is deemed "defective" often depends on whether a safer design existed at the time of its manufacture. If the safer design would have been relatively cheap to implement, when balanced against the dangers of not implementing it, a jury will often find that the manufacturer's product was defectively designed, which means that it was UNREASONABLY dangerous. Sure, all cars are SOMEWHAT dangerous; they are heavy machines designed for travel at fast speeds. But why make them more dangerous than they have to be? That is the whole purpose of product liability law; to hold manufacturers responsible for the harm they cause when they produce products that are more dangerous than they need to be. This jury, and juries like them, help make the world a safer place for all of us. Volvo and other manufacturers will think twice the next time they decide whether to omit a safety device that would cost them only $5 per car to install.

A New York Times article today, entitled "Pregnant Women are Particularly Vulnerable during Car Accidents," provides food for thought. The article says that 300 to 1,000 unborn children die in car accidents in the U.S. each year. An unborn child has a four times greater chance of dying in a car accident than a child up to age 4.

The biggest risk for an unborn child in a car crash is "placenta uterine attachment". The placenta can detach easily in crashes, which in turn causes the baby to lose its oxygen supply. That accounts for about 80 percent of fetus losses in auto accidents.

What's the main culprit in causing this detachment? The steering wheel. If you are a "very" pregnant woman, the steering wheel is probably only inches from your belly. The impact between your belly and the steering wheel in a crash, even a minor one, is what usually causes the placenta to detach.

Solution? The article recommends purchasing "pedal extenders", which allow you to operate the pedals with your seat pushed further back, thus creating more distance between your belly and the steering wheel.

What's the biggest mistake you can make as a pregnant woman in a car? Not properly adjusting your seat belt. If you're pregnant, you probably find a seat belt uncomfortable. This causes you to try to adjust the belt upward, around your belly. In fact, the safest way for you to wear your seat belt is down around the bony pelvis area. This is true for everyone, but especially if you are pregnant because, in a crash, the seat belt itself can exert pressure on your belly, causing the placenta to detach.

New York State law recognizes that the loss of a fetus, at any stage, is a very serious event for a woman. That is why the New York State No-Fault Law specifically lists "loss of a fetus" as one of the categories of "serious injury". If a woman has lost a fetus, at any stage of development, through the fault of another driver, she is automatically entitled to compensation for her pain and suffering.

Are you a pregnant motorist? Drive very carefully. Adjust your seat belt properly. See if "pedal extenders" will work for you. If you are injured in an auto accident get medical attention. If you decide to seek compensation for your injuries, feel free to call Michaels & Smolak. We're glad to help.

I feel a little uncomfortable telling people what to do if they are involved in an accident. Why? It seems odd to tell them that, just as they are stepping out of a wrecked car, or picking themselves up from the ground where they slipped and fell, they should start thinking about preserving their rights, and evidence, so that they can later make a personal injury claim. On the other hand, I can't tell you the number of times my clients here in central New York were seriously injured and just didn't think to do what they needed to do to secure the evidence and their rights for a personal injury claim. Sometimes I can fix it, but sometimes it's too late. Then they live in constant regret because they really end up needing the money the personal injury claim could have provided them for their lost wages, medical bills, and other losses.

So, like it or not, here's my "what-to-do-when-you-are-injured" list. Some of these are no-brainers, but I figured I would list them all anyway:

TAKING CARE OF YOUR INJURY FIRST:
(1) Get medical attention for you injuries (obviously the most important).

PRESERVE EVIDENCE FOR YOUR PERSONAL INJURY CASE:
(2) Get contact information from those involved in the accident and from witnesses.
(3) Write down license plate numbers, if applicable. `
(4) Report the accident to the police.
(5) Make sure someone takes pictures of the scene, the cars, the evidence, etc.
(6) Make sure someone takes pictures of your injuries.

PRESERVE YOUR RIGHTS FOR INSURANCE COVERAGE
(7) Report the accident to your own insurance agent or carrier. You should do this even if you don't think the accident is covered under your policy. If you don't do this promptly, you might destroy your right to any insurance coverage there is, and there may be insurance coverage in your own insurance policy that you are unaware of. Insurance carriers can disclaim coverage if you give them "late notice" of the accident.

DON'T SHOOT YOURSELF IN THE FOOT
(8) Call an experienced personal injury lawyer BEFORE YOU TALK TO THE AT-FAULT GUY'S INSURANCE AGENT OR ADJUSTER. If you talk to the at-fault guy's insurance agent or adjuster first, he or she is likely to try to get you to say things that hurt your case. You won't even know he is doing it to you. They are good at it! Remember, you can talk to your own insurance carrier right away, but not the other guy's until you first talk to your personal injury lawyer.

(9) Relax, listen to your doctor's advice and get better. Your personal injury lawyer will take over from here.

Stop signs only work, obviously, if people see them and obey them. This fact is demonstrated by a recent car accident near Geneva, Ontario County, New York. The Finger Lakes Times newspaper reports that two motorists were treated at Geneva General Hospital following a car collision in the town of Seneca, Ontario County, on December 1. Vincent Gleason was traveling south on County Road 20 when he failed to see the stop sign at the intersection with County Road 4. Gleason ran into a vehicle being driven by William Hart of Geneva as he was passing through the intersection. The police ticketed Gleason for failing to stop at a stop sign. Both drivers were wearing seatbelts. The car accident injuries do not appear to be serious (Seatbelts save lives --- where them!)

In the U.S., more than 40,000 people die in automobile accidents each year. It is the leading cause of death for people under 40 years old. On average of 112 people die each day in car crashes in the U.S. Many of these deaths happen at intersections because a driver failed to observe a traffic control device (red light, stop sign, yield sign, etc.).

At Michaels & Smolak, we have handled hundreds of car crash cases where the collisions were caused by drivers failing to stop at stop signs. Think these are easy cases? They should be, but believe it or not, even when a driver "blows" a stop sign, and we ask his insurance carrier to compensate our innocent client, insurance carriers often won't pay without a fight. They often take the position that the innocent driver, our client, was not truly "innocent". Incredibly, they claim that our client should have seen the other driver as he was approaching the stop sign, that he should have observed that the other driver was not going to stop, and that he should have reacted in time by braking or otherwise avoiding impact! These insurance adjusters, and their lawyers, argue that it was the fault of BOTH drivers, and therefore they should get a discount on paying for our client's pain and suffering, medical expenses, lost wages, and other losses.

Generally, those arguments can be swatted like flies. Why? Because of New York State case law. In New York a driver has no duty to expect or anticipate that another driver is going to ignore a stop sign. In other words, a driver has a right to assume that other drivers are going to obey the law.

We don't rely on this case law alone, though. We investigate the scene, the car damage, and all the facts. For example, if the damage to the cars shows that our client's vehicle was hit on the side by the stop-sign-ignoring vehicle, this proves indisputably that our client had no time to react, since he was in the intersection first.