January 2010 Archives

January 31, 2010

How to Know When Your Lawyer Has Committed Legal Malpractice in Your Case.

deadline.jpgWe have brought many New York legal malpractice lawsuits against other New York personal injury lawyers. In fact, we are one of the few firms in our area willing to sue other lawyers for malpractice. Our experience has taught us a few things. One thing we have learned is how a client can suspect that his lawyer has committed legal malpractice in his personal injury or medical malpractice case even when the lawyer won't tell the client. How? Read on.

Phone rings. Secretary tells me a potential client is on the phone with a personal injury case and he wants to "switch lawyers". I take the call. The potential client says, "my lawyer at first told me that I had a great personal injury case, that I had a lot of money coming to me, but now all of a sudden he tells me the case is not worth pursuing. He is trying to talk me into dropping the case. But I don't want to drop it. Can you represent me?"

Wooo! When I hear this, red flashing lights go off in my head. The first question I ask is, "WHEN did your accident happen?" If the answer is, "just over three years ago", I say to myself, "bingo".

The New York statute of limitations for most negligence (injury) cases is three years (for medical malpractice cases it is usually 2 ½ years). These statutes of limitations are generously long for a reason; you can't know how much to sue for, or how much to settle for, untill you see whether the injury will heal, how it will heal, what the client has to go through to heal (i.e. surgery, physical therapy), whether there will be any permanent disabilities, and if so, how bad they will be. So at first, before a lawsuit is filed, there is usually a long waiting period.

The problem is that some lawyers don't carefully diary the statute of limitations while they wait for the injury to play itself out. If the statute of limitations goes by without a lawsuit being filed, the case is dead. But if your lawyer missed your statute of limitations, your case is not REALLY dead, it is just transformed from a case against the careless person or company that caused your injury into a case against the careless lawyer who missed your statute of limitations.

But guess what? A lot of lawyers who miss statutes of limitations or other filing deadlines don't tell their client. Instead, they try to talk the client into dropping the case, claiming that the case is not winnable. Of course this is completely unethical, deceptive and dishonest. But believe me, it happens all the time. Lawyers don't want to be sued, even though they usually have malpractice insurance to cover them for their mistakes. It hurts their pride.

So, if your lawyer at first told you had a good case, but now he wants you to drop it, do some math. How long has it been since your accident? Then call me and we'll talk.

January 30, 2010

Why Do Injured People Seek Out Personal Injury Lawyers? Syracuse Accident Lawyer Explains.

DSC_0362.JPGI get it all the time: "I'm not THAT kind of person. I'm not the suing type". They fidget nervously, from their chair on the other side of my desk, afraid I will think they are "that kind of person" for coming to see me. I think silently, "What must you think of me, who makes a living out of being 'that kind of person?'"

But I don't say that, of course. I show compassion. No one wants to be in their position. Here they are, forced by circumstances to become "that kind of person". Embarrassed by it, really. I tell them what they are feeling is very common. No one wants to sue anyone. No one wants to claim money for an injury. Money won't make the pain go away. But they need to think about the future, about their lost income, about their medical costs, and of course about their pain, suffering and loss of enjoyment of life that may last forever. And they shake their head in agreement knowingly, relieved that I am not going to judge them to be "that kind of person".

So what makes them overcome their embarrassment and come to see me? Their life has suddenly changed for the worse because someone was careless. Maybe they got hit by a drunk driver that didn't stop at the stop sign. Maybe they slipped and fell on an icy walkway that no one bothered salting. Maybe they were injured on a construction job where the safety rules weren't being enforced, causing them to fall from a ladder or scaffold. Whatever it was, they are hurt, it wasn't their fault, and after mulling it over for a few days, after seeing how their life has changed, perhaps forever, and how unfair that is, and after feeling the rage, the injustice of it all ---- they call. They set up the appointment. They come in. They sign the retainer.

And so we are on our way to getting them a measure of justice.

January 26, 2010

Syracuse Malpractice Lawyer on Recent New York Times Article: Medical Students Describe Pervasive Medical Malpractice

emergency.jpgA New York Times article today, written by two fourth-year Harvard Medical School students, describes the frightening pervasiveness of medical malpractice in the United States, and the medical profession's seemingly incorrigible habit of turning a blind eye to it. In my blog post today I will extract the article's pearls of wisdom, and hand them to you, my reader. If you want the full oyster, shell and all, I highly recommend the full article.

The authors start by summarizing some of the more alarming studies that have catapulted medical malpractice to the headlines in recent years, including the famous (or infamous) Institute of Medicine Report in 1999 estimating that medical errors kill as many as 98,000 people a year, and a more recent New England Journal of Medicine study with similar findings.

Most interesting, though, was the authors' discussion of recent polls of medical students regarding their experience with medical malpractice. Surprisingly, a poll of third-year students revealed that most students had already witnessed medical errors (and they aren't even doctors yet!) or had committed errors themselves, but did not know what to do about it, who to report it to, or how to handle it. The system just wasn't set up to admit, explore, or learn from medical error.

According to the two authors, the message that medical malpractice is out of control has not hit home. In a recent survey of some 391 medical students, four out of five opined that medical school had only, at best, provided a "fair" emphasis on patient safety and quality improvement. According to one medical school professor, there was "still some debate" about how and when to teach patient safety! (I've got an idea --- how about from day one!)

The medical establishment needs to find a cure to its own blindness, and these young docs just might provide it with a much needed shot in the arm. As fresh-faced, idealistic neophytes to the profession, these authors are positioned to rattle the smug, old-school, doctors-can-do-no-wrong mentality of the medical profession. But here's how we can really tell whether they stand a chance: How were they received by their colleagues, professors, and senior physicians after this article hit the press? Were they ostracized for "outing" medical malpractice secrets, or were they greeted as dragon-slaying heroes? Hate to say it - but I suspect it was the former.

January 25, 2010

Madison County, New York Car Crash Injuring Several Passengers Demonstates New York Car Insurance Principles

2010-01-23-madcoaccidentphojpg-c7bf093b401b1ebb_large.jpgThe Syracuse Post Standard reports that eight people were injured in a two-car crash last Friday night in Eaton, Madison County, New York. That's a lot of injured people for one accident! It's unusual, too, because nowadays most vehicles on the road have NO passengers. Look around next time you are driving and you will see what I mean!

One of the two cars was headed northbound on Route 46, failed to stop at a stop sign at Route 20, and was struck by the other car heading east on Route 20. The car that failed to stop at the stop sign was carrying three passengers, all whom were injured, though apparently not seriously. The driver traveling on Route 20, who had the right of way, suffered neck injuries, but one of his three passengers suffered a serious leg injury, so serious that she was taken by helicopter to Upstate University Hospital in Syracuse.

In this blog post I want to discuss how insurance will cover all these injuries, minor and serious alike.

Under New York State car accident law, everyone's medical expenses and lost wages up to $50,000 will be paid out of the "no-fault" insurance for the car they were traveling in. There might be additional insurance in the policy, but $50,000 is the standard, and the minimum. In addition, if any passenger owns his or her own car, or if a family member they live with does, they ought to check those auto insurance policies for additional no-fault insurance, known as "APIP" (additional personal injury protection).

So that's it for the basic medical expenses and lost wages. But what if the passengers and innocent driver have MORE medical expenses and lost wages than no-fault insurance covers? What then? And what about compensation for their pain and suffering?

That's where "liability", also known as "bodily injury", insurance kicks in. The insurance policies for the at-fault vehicle (the one who blew the stop sign) will have to pay for any "excess economic loss", meaning medical expenses and lost wages beyond what no-fault paid. In addition, it will have to pay pain and suffering compensation for any "serious injuries". I discussed what a "serious injury" is in an earlier blog.

But there might not be enough "bodily injury" insurance here to cover all the injuries, so everyone needs to seek out additional, hidden insurance, called "SUM" (supplemental underinsured motorist) coverage, which I wrote about on our website. Such additional insurance might be found in the insurance policy for the vehicle they were traveling in, or in the auto insurance policy for the vehicle each victim owns, or is owned by a family member who resides with them.

I wish luck and a speedy recover to all the victims of this unfortunate auto crash. I also hope they all have lawyers who know how to track down all available insurance to help them cover their costs and compensate them.

January 25, 2010

Can Minor Who Gives Alcohol to Another Minor Be Sued for Injuries Caused by Drunk Minor in New York?

drunk kids driving.jpgTwo days ago the Syracuse Post Standard reported that the New York State Police had arrested a brother and sister, who are only 22 and 20 years old, for allegedly endangering the welfare of a child in Boonville, New York, by having an underage drinking party at their home on New Year's Eve where the minor was served alcohol.

Here's my blog-post question of the day: What if the under-aged drinker had injured someone because of his intoxicated state? For example, what if he had driven away from the party only to smash his car into an oncoming vehicle? Or what if, emboldened by his alcohol-fueled testosterone levels, he assaulted someone and caused serious injury? Who would be liable for those injuries? Can both the 22 year-old and the 20 year-old kids who hosted this party be held liable in a New York under-aged drinking lawsuit?

Yes they can! Obviously, the under-aged drunk driver or assailant would be liable, but so too would the people who held the underage drinking party, even if they themselves are minors. These rules are all found in New York's General Obligations Law 11-100. Under this law, if someone is injured by an intoxicated minor, the injured victim has a right to bring a New York lawsuit against the person who caused or contributed to the intoxication of the minor by unlawfully selling to, or assisting in the procuring of liquor for, the minor. In order to be held liable, the procurer of the alcohol must have known, or had reasonable cause to believe, that the person he was providing the alcoholic drink to was under the age of 21. Under the law, even an under-aged person who provides alcohol to another under-aged person can be held liable to the victims.

Moral of the story? Never serve alcohol to a minor, even if you yourself are a minor. You can be held liable for any injuries the minor you serve alcohol to causes. Giving alcohol to a minor is like winding up a walking liability-causing machine that you can't control!

January 24, 2010

Another Fatal Central New York Snowmobile Accident

Thumbnail image for Thumbnail image for snowmobile.jpgThe Governeur Times reported yesterday that St. Lawrence County sheriff's deputies are investigating a fatal snowmobile accident on the Tooley Pond Road near the River Road in the Town of Clifton. A 40-year old snowmobiler of Brownville, N.Y. was traveling north on the east side of Tooley Pond Road when he crossed onto the west side of the road, struck a snow bank and was ejected.

Most snowmobile accidents are caused by snowmobile operator error, usually involving excess speed. Most snowmobile accidents involve a smowmobile driver striking a fixed object, just like in this unfortunate accident, where the driver struck a snow bank.

Sometimes snowmobile accident victims are not at fault, or some other person is partially at fault. This Central New York snowmobile accident lawyer has blogged several times recently about snowmobile accident lawsuits in New York State. You can read all my snowmobile accident blogs, which include safety tips for snowmobiling, by clicking here, here, here and here

January 23, 2010

Can Alleged Teenage Victim of Rape in Bath, New York Bring New York Rape or Child Abuse Lawsuit against Alleged Rapist or the Employer?

Thumbnail image for sad teen silouette.jpgThe Syracuse Post Standard reports today that State police have arrested a 28-year old socio-therapist at a residential center for teenage boys on rape charges. The socio-therapist is alleged to have had sexual contact with a 15-year-old resident of Snell Farms Children Center in Bath, in Steuben County.

Criminal charges have been filed, but the question I want to address in today's blog is, what are the possible CIVIL LAW consequences? In other words, assume the child has suffered some psychological trauma, pain and suffering, and has a need for psychological treatment. Can the child, through a parent or guardian, bring a New York rape or child abuse lawsuit for money damages to pay for his treatment and to compensate him? Who would the child-victim sue and how would he be compensated?

The child, through his guardian or parent, can sue both the alleged rapist and the employer, Snell Farms Children Center. The lawsuit against the rapist would allege assault and battery and other intentional acts. But, even if the child wins at trial, that lawsuit would almost certainly be a waste of time and money. Why? Because even if this socio-therapist has liability insurance, such as homeowner's insurance, the insurance company won't pay out a dime on this case. Insurance never covers INTENTIONAL wrongdoing. And what can be more intentional than rape?

What about the employer, the Snell Farms Children Center? Can the child-victim, through a guardian or parent, sue the employer? Yes. But the employer is not automatically liable for the rape committed by its employee. The child's lawyer must prove that the employer was NEGLIGENT in hiring, retaining, or supervising its employee, the alleged rapist. If the employer carefully checked its employee's background before the hiring, and found no past incidents of child abuse, and if the employer properly supervised the employee's work and had no reason to suspect such behavior, then the employer cannot be held liable.

It might be a tough case against the employer, but at least the employer's liability insurance will cover the costs of the legal defense and, if the jury renders a verdict favorable to the plaintiff, will pay money damages to the child.

But wait a minute! Didn't we just say that insurance won't cover intentional wrongdoing? True, but while "rape" is by definition "intentional", the EMPLOYER'S wrongdoing, if any, was not "intentional" (the employer did not commit the rape), but merely "NEGLIGENT". In other words, although the employer may not have been careful enough in hiring or supervising its employee, it did not "intentionally" harm the child. It was at most "negligent", and "negligence" is precisely what liability insurance is supposed to cover.

January 22, 2010

Can Student Hit by Car sue Village of Waterloo, New York, or the Waterloo School District for Failure to Provide Sidewalks for School Children?

schoolsign.jpgThe Geneva Finger Lakes Times ran a story yesterday about a car-on-pedestrian accident in Waterloo (Seneca County). The story was of interest to me because I pass through Waterloo twice a day on my way from my home in Geneva to my office in Auburn. Here's what happened:

On January 11, a vehicle struck a 14-year-old student on Stark Street. For at least two years, the child's mother had been one of several parents voicing (to put it mildly) concerns to local officials about the lack of sidewalks for school children who walk to and from school in that area. The parents say the Village of Waterloo and School officials merely shrugged their shoulders and pointed their finger at each other or at other entities. The Village of Waterloo owns the roadway in the area in question. Everyone, including the Village, appears to agree there is a safety concern with children walking to and from school in that area.

As I read the article, I asked myself, "who can be held accountable for this injury in court"? And "who can be held liable for future accidents if nothing is done"? I answered my own questions, and now it's your turn. Readers, I give you two choices: Who can be held liable? (1) the Waterloo School Disctrict or (2) The Village of Waterloo?

Answer: (drum roll please . . . ): It's number 2, the Village.

Why not number 1? Well, a school district, including the Waterloo School District, cannot generally be held responsible for the safety of its students once they are released from school and leave school premises. The exception is if the school district somehow created the off-premises danger that caused the injury, which does not appear to be the case here.

Instead, here the Village owns and controls the road in the problem area. Therefore, providing sidewalks for pedestrian safety in that area is the Village's responsibility.

The Village and its lawyers would be well advised to read the New York Court of Appeals (highest court in New York State) case of Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664 (1999), where it was held that Wayne County, who owned and controlled the road just outside the village of Wolcott, near a school, could be held liable for failing to install sidewalks for school children's use if there was no "reasonable basis for the failure to act and the failure to do so was a contributing cause of an accident". In that case, as in this case, the entity who owned the roadway (there, Wayne County, here, the Village of Waterloo) had been warned for years that sidewalks were needed for the safe passage of school children. There, as here, parents and others had pleaded with the authorities to build sidewalks, but those pleas were ignored. In the Wayne County case, a seriously injured student, hit by a car, sued the County for its failure to install sidewalks, and the Court gave the injured student a green light to go to trial. Fortunately, in Waterloo, the lack of sidewalks has caused only one minor injury so far.

Will the Village of Waterloo wait for a SERIOUS injury before it does the right thing? Let's hope not.

January 21, 2010

Community General Hospital's New Orthopedics Unit in Syracuse Will Meet Increased Surgery Demand and May Decrease Syracuse Medical Malpractice Lawsuits.

kneepain.jpgToday Community General Hospital in Syracuse, New York, opened its new $7.6 million orthopedics unit. The new unit, located on the hospital's sixth floor, will care for patients recuperating from knee, hip (including hip and knee replacements) and spine surgery. The Hospital's old orthopedics unit on the fourth floor provided insufficient space, as the orthopedic surgery practice has grown. The new, modern facility will provide better care and may even reduce orthopedic medical malpractice lawsuits. Outgrown, overcrowded surgical recovery units are breeding grounds for medical malpractice lawsuits.

The new unit is timely. We are going to need more, better, and larger orthopedic units in the future. One big area of growth in the orthopedic surgery field is joint replacement, especially knee and hip replacements. To demonstrate this growth, let's just look at knee replacements. In 2006, 59,077 people between the ages of 45 and 54 had knee replacements. But experts predict that, by the year 2030, that number will have increased to almost 1 million, nearly 17 times as many! Similar statistics are available for hip replacements.

Why this increase? Three facts are driving the trend: (1) Joint replacements are more successful than before, and thus attract more patients. New technology allows the artificial parts to withstand more stress and strain; (2) Seniors are more active, and need those hips and knees to work for them; and (3) There are more and more obese people, which triggers earlier and greater arthritis and other orthopedic problems.

Kudos to Community General Hospital for building this new unit to meet Central New Yorkers' ever increasing orthopedic surgery needs.

January 20, 2010

Can I Sue a Landowner for My Snowmobile Accident? Syracuse Area Snowmobile Accident Lawyer Explains.

Thumbnail image for Thumbnail image for snowmobile.jpgWhen I look back over the past month or so (December and January), I see that I have been blogging quite a bit about car and snowmobile accidents. It is no coincidence. This time of year, these kinds of accidents fill up the newspapers and tie up my phone line.

Car accidents happen with greater frequency in winter for two reasons: (1) the slippery conditions and (2) the shorter days (People are driving in the dark more often, with more limited visibility, both on the way to work and back). And do I need to explain why snowmobile accidents happen with greater frequency in winter? I think not!

A few days ago I blogged that car accidents are sometimes the "road's fault", that is, that a government entity (New York State, or a town, city or county) negligently designed the road or its signage, traffic control devices, drainage ditches, shoulders, etc. I explained that, in such cases, motor vehicle accident victims may have a valid claim against whatever government entity designed and maintained the roadway.

The same can be said for snowmobile accidents. Sometimes the government or a private party owns and maintains snowmobile trails. Sometimes snowmobile accidents are caused by the poor maintenance, planning, or design of those trails.

But hold on! These are not easy cases. Even though the landowner may be at fault, there is a special statute in New York that protects them in many cases. It is called General Obligations Law section 9-103. This law provides that landowners "have no duty to keep the premises safe for entry or use by others for (among other things) snowmobile operation" and that they have no duty to "give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes". In other words, generally you can't sue the landowner for dangerous snowmobiling conditions, or even for failing to warn you about them.

The law's purpose is laudable; it encourages landowners to open up their property for snowmobiling and other recreational use by the public. Many landowners would be reluctant to do so if they thought they could be sued for accidents that happen on their property.

But there are many exceptions to the blanket protection provided by Obligations Law section 9-103. By way of example only, a government entity such as a County, that opens up its land for snowmobile use, and maintains snowmobile trails, may be held liable under a "public parks" exception to the rule. In fact, Michaels & Smolak is currently litigating such a case against Oswego County. There are many other such exceptions, too.

Make no mistake; the number one cause of snowmobile accidents is unsafe driving.But if you or a loved one is injured in a snowmobile accident and you believe it might have been at least partly "the trail's fault", call a New York snowmobile accident lawyer to discuss the case.


January 18, 2010

Central New York Lawyer Says Recent Snowmobile Accidents Demonstrate Need to Follow Safety Rules.

Thumbnail image for snowmobile.jpgThere are between 300 and 400 snowmobile accidents in New York State each year, with about 25 fatal ones. Two more snowmobile accidents were reported in recent days. I previously blogged about safety rules for snowmobiling. These recent snowmobile crashes remind us of the do's and don'ts of snowmobiling:

Snowmobile Accident #1: The Syracuse Post Standard reports that a Lyncourt man died from a snowmobile accident in Lewis County last Saturday night. The snowmobiler was traveling on Smith Road in the town of West Turin around 8 p.m. when he apparently LOST CONTROL of his sled on a curve, and STRUCK SOME TREES. He was pronounced dead upon his arrival to Lewis County General Hospital.

Snowmobile Accident #2: The Saratogan reports a snowmobile accident near Edinburg on Great Sacandaga Lake this past weekend. An East Greenbush resident allegedly CLIPPED THE REAR OF ANOTHER SNOWMOBILE, causing him to fall off the sled and strike his head on the ice. He was airlifted to Albany for treatment and was listed in stable condition. Fortunately, he was WEARING A HELMET.

So what safety rules do these accidents remind us of?

Safety Reminder from Accident #1: SLOW DOWN, especially at night.

Safety Reminder from accident #2: DON'T FOLLOW TOO CLOSELY to the snowmobile in front of you. And WEAR A HELMET (this may have saved the man's life here).

Snowmobiling can be safe if you make it safe. Thanks for driving safely.

January 17, 2010

The Basics of New York Negligent Road Design Cases by Central New York Injury Lawyer

defectiveroad.jpgI have blogged many times about Central New York auto accidents. I have discussed recent Central New York car accidents and shown how one or more of the driver's would most likely be found at fault. Today I want to discuss another type of car accident case: Specifically, I want to discuss New York defective road design cases, that is, cases where the accident is the road's fault.

The road's fault? Yes, sometimes car accidents are caused by the negligent design or plan of a road, street, or highway. Maybe it tends to accumulate too much water during rainy times. Maybe it was not properly marked with signs, or the speed limits were too high, or the shoulder or draining ditch was too deep, or there should have been guardrails, or the guardrails were not properly designed, or the trees or shrubbery were too close to the road, or . . . well, the possibilities are almost infinite.

If you are injured in an accident caused by a defective road design, can you sue anyone? Yes you can, but you have to prove more than just that the road could have been better. Roads in New York are designed, built and maintained by New York State, or its Counties, or other municipalities such as towns, in other words, some kind of government entity. Generally, New York State and its counties and towns have what is known as "qualified immunity" from liability for highway, road and street planning and design decisions. What does "qualified immunity" mean? Well, it means that just proving the roadway design was bad is not enough to win your case. You must also show that the road was built "without adequate study or lacked a reasonable basis".

What if the road was designed a long time ago when standards for safe road design weren't as strict as today? Isn't the government required to upgrade the road to meet modern safety standards? Generally, no. The road has to comply only with the standards existing when it was built, not later standards. Like most rules, however, this one has exceptions, in fact, two exceptions: (1) If the road build under the old standards has a history of accidents, then the government may be required to upgrade it to comply with modern standards; and (2) If the roadway undergoes a significant repair or reconstruction, then the government is required to upgrade the design to comply with current standards.

What if your car collides with objects near the road, such as trees, shrubs, or posts? Generally, the government is required only to maintain the roadway itself in a safe condition, not the area near the roadway. But again there are exceptions: You can sue for collisions with those objects when there were other collisions with those objects that put the government on notice of a specific dangerous condition. Also, where roadside hazards such as drainage ditches are "inherently dangerous", the owner of the road has a duty to prevent vehicles from leaving the road or to eliminate the danger.

Bottom line: Faulty roadway design cases are not easy. They are a maze of rules, exceptions to the rules, and exceptions to the exceptions to the rules. If you believe your car accident may have been caused by a roadway defect, you need a New York defective road lawyer who understands the rules, the exceptions, and the exceptions to the exceptions.

January 13, 2010

Geneva New York Snowmobile Injury Lawyer Blogs on Recent Wayne County Snowmobile Accident

snowmobile.jpgThe Geneva Finger Lakes Times reports today on a snowmobile accident last Friday in Farmington, Wayne County. Here's what happened: Two snowmobilers were operating their sleds in an open field. One of the snowmobilers turned his sled into the path of the other, causing the second to be thrown, and his snowmobile to turn over onto his left arm, fracturing the two bones in his forearm. The accident happened in a field north of Green Road at about 6:00 pm. The injured snowmobiler was taken to FF Thompson Hospital in Canandaigua.

I recently blogged about the dangers of snowmobiling and how to minimize the risks associated with the sport. Snowmobile accidents don't just "happen"; snowmobilers make them happen by negligent, careless driving. Here, depending on the facts, either one or both of the snowmobile drivers are to blame for this accident. From the facts as reported, it would seem that the snowmobiler who turned his sled into the path of the other would be legally liable for the accident.

Snowmobilers who use their snowmobiles off their own property are required to have liability insurance on their snowmobile. I hope that the at-fault driver here had insurance on his sled so that the other driver, with the help of a New York snowmobile accident lawyer, can tap into it to cover his medical expenses, any lost wages, and also get some compensation for his pain and suffering.

Fortunately, the injuries here do not appear serious. But as I wrote about in another recent blog, snowmobile accidents often do produce serious, and even fatal, injuries.

Keep safe. Follow good snowmobiling safety rules.

January 13, 2010

Central New York Injury Lawyer Discusses Legal Issues in Recent Yates County New York Construction Accident

constructionworkeronroof.jpgThe Geneva Finger Lakes Times reports today that a construction worker fell 12 feet through an unfinished stairway of a house under construction in Yates County, New York yesterday, and landed on the gravel basement floor below. The worker, of Geneva, was brought by Mercy Flight to Strong Memorial Hospital with head and internal injuries.

We wish the best for the injured worker and his family. Twelve feet does not sound like a lot, but I know from representing construction workers in similar falls that, when you are caught off-guard by it, a 12-foot fall is huge.

In these blogs, I try to apply New York Accident law to facts gleamed from local news reports. The question I want to address here is, does the injured worker have a New York construction injury case? The answer is: It depends.

New York State has a very special law that protects construction workers from falls from heights. The law is called Labor law 240, also known as "the scaffold law". I blogged about New York's Labor Law 240 recently. Labor Law 240 is a "strict liability" law, meaning that the injured construction worker does not have to prove that anyone was NEGLIGENT; all he has to prove, generally, is that he fell because he was not provided with proper equipment to protect him from falling, or that the scaffold or ladder he was on failed to support him. If he can prove that, he wins, even if he himself was partly, or even mostly, to blame for the fall. In fact, the only way he can lose, generally, is if he is 100% to blame.

In this case the injured construction worker fell through an unfinished stairway, which is usually a slam-dunk construction accident case. The owner, general contractor, and perhaps others are going to be liable because there was no barrier or other safety device to prevent the worker from falling through the unfinished stairway. Either the opening should have been barricaded off, or the worker should have been somehow tied up to prevent the fall.

But there's a hitch. He was building a HOME. There is an exception to Labor Law 240 liability for one or two-family homes. The automatic liability of Labor Law 240 does not apply as to homeowners, except if the home is being used, or was going to be used, for a commercial purpose, or if the homeowner was directing and controling the work. The one or two-family home exception is meant to protect ordinary homeowners from the harsh, strict liability of the scaffold law (Labor law 240).

On the other hand, the general contractor, and perhaps others, can be held liable under Labor Law 240 even if the worker fell while building a home. The law cuts a break only to the homeowner, not to anyone else.

Bottom line: the construction worker probably has a "scaffold law" (Labor Law 240) strict liability case against the general contractor and others, but not against the homeowner, unless the homeowner was intending to use the "home" for a commercial purpose.

January 13, 2010

New York State Trooper Struck by Tire Falling from Truck in Cayuga County Has Good Personal Injury Case

tire20picture1jpg-bd3615b78a393873_small.jpg The New York State Trooper dutifully pulled his patrol car over for a distressed vehicle on the shoulder of the New York State Thruway in the Town of Brutus, Cayuga County, New York. He then got out, approached the car, and----- was struck be a flying wheel. A flying wheel? Yes, one that had apparently fallen off a passing vehicle.

Rendered unconscious by the giant frisbee, he was airlifted to SUNY (Upstate) hospital in Syracuse. Yesterday the New York State Troopers released a photo of the guilty tire (a kind of tire mug shot - shown here at left) in the hopes that someone will recognize it and blow its owner in. Judging from its size, and its rust, it appears to be the spare for some kind of small truck.

What if they find the tire's owner? Will he be legally liable to the Trooper in a New York personal injury lawsuit for medical expenses, lost income and pain and suffering? Probably. Here's how the law works.

Assume the tire's owner says, "gee, I have no idea how that tire came flying off of my truck. I secured it down real good just last week". Oh yeah? The fact that it flew off the truck shows that he did NOT secure it well enough.

Recently I blogged about the legal doctrine of "res ipsa loquitur." When a tire or other object comes flying off a vehicle for no good reason, that makes for a classic "res ipsa loquitur" case, which means the owner is liable. In fact, there are several New York personal injury cases just about exactly on point: Pollock v. Rapid Indus. Plastics Co., Inc.113 A.D.2d 520, Spica v. Connor, 56 Misc.2d 364, Polk v. Roger Sherman Transfer Co., 3 A.D.2d 882.

But wait a minute. Why should this Trooper be able to bring a New York accident lawsuit for medical expenses and lost wages? Won't his workers' compensation cover that?

Yes, it will (all his meds, and most his lost wages). But if the trooper decides to sue the guy responsible for the loose tire for pain and suffering compensation, he had better also sue for the lost wages and medical expenses. Why? Because workers' comp has a "lien" on any recovery he gets from his lawsuit against that guy. In other words, comp gets to take back from the Trooper's lawsuit award (be it from a settlement or verdict) all of the comp payments it made for the Trooper's medical treatment and lost wages. So if the Trooper doesn't sue for the lost wages and medical expenses, comp will take its comp payments back out of his pain and suffering award. But if he includes in his lawsuit a claim for the lost wages and the medical expenses, then he will be able to pay comp back with the money from those awards, and will be able to keep 100% of his pain and suffering compensation, plus whatever lost wages were not covered by comp.

In the end, the innocent trooper acts as a kind of "pass through" between the guilty tire/truck owner who actually caused the injury, and the innocent workers' compensation insurer. The innocent injured trooper gets to keep his pain and suffering award, but the medical expenses and lost wages "pass through" him from the guilty guy (or his auto insurer) to the innocent workers' compensation insurer. Sound fair? I think so.

January 11, 2010

Syracuse New York Accident Lawyer Explains How Camera Phones Are a Game-Changer for Personal Injury Cases.

cellphone.jpgCentral New York accident lawyers and victims, and such lawyers and victims everywhere, owe a big debt to Philippe Kahn. Who's he, you ask? Kahn invented, on a whim, the camera phone about 13 years ago (while he was waiting for his wife to deliver a baby -- read full story in USAToday). Yes, that ubiquitous, ever-handy device that can snap a picture anywhere, anytime, was invented only 13 years ago!

Why do accident victims need to thank Kahn? Because they can just reach into their pocket, or pocketbook, pull out Kahn's invention, point, click and --- voila! - evidence preserved!

Two of our recent cases demonstrate what a game-changer the cell phone camera is for personal injury cases.

Case #1: Wife slips and falls and suffers a serious back injury on snow-covered steps outside a commercial office building. The husband, after attending to his injured wife, has the wherewithal to pull his cell phone out of his pocket and snap some pictures of the icy, snow-covered steps. Fast forward several months --- case settles for a very significant amount of compensation. Why? Because we could prove how bad those steps were with the photos. Without the photos, the snow would have been gone by the time a lawyer or investigator got to the scene.

Case #2: Heavy-set man was walking down wooden steps of a New York State police trailer. The wooden steps snap underneath his foot, causing him to fall and sustain multiple tears in the soft tissue around his knee. Before dragging himself to his car, he has the wherewithal to snap photos of the broken steps with his cell phone. They show that a "stringer" (a support device) was missing from the middle of the steps, which is what caused them to snap under his weight. Now the evidence is preserved for his personal injury case.

These are just two examples of how cell phone cameras have helped our New York personal injury victims preserve evidence in their cases. The same kind of photo-snapping is happening now in all kinds of accident cases, including auto accidents (shoot up that collision scene before the tow trucks arrive!), parking lot falls (snap that pothole before they fill it!), construction accidents (photograph that collapsed scaffold before they remove it!) and defective products cases, just to name a few.

I am sure Philippe Kahn did not have personal injury cases in mind when he invented the camera phone. But Henry Ford didn't have space travel in mind when he invented the combustible engine, either. I tip my hat to you, Philippe Kahn (and, while I'm at it --- to Henry Ford, too).

January 9, 2010

Syracuse New York Auto Accident Lawyer: Cayuga County Car/Train Collision Teaches Lesson on Railroad Crossing Dangers

railroadcrossing.pg.jpgThe Syracuse Post Standard reports on a Cayuga County car accident last Thursday, in Sennett, New York. On a snow-covered Hidden Valley Road (near Route 5, a/k/a Grant Ave), a motorist drove his SUV into the side of a Finger Lakes Railroad train, which was traveling at only about 9 miles per hour. Fortunately, the motorist sustained only minor injuries.

Someone once said that the difference between a wise man and a fool is that the former learns from others' mistakes and the latter learns only from his own. So be wise, and learn from this accident before it happens to you. Learn what? Two things:

First, wake up! In case you haven't noticed, it's winter (and a very snowy one) in Central New York. The roads are slippery, icy and snow-covered. Drive prudently. For tips on how to minimize your risks of car accidents in winter, read my prior blog on this subject.

Second, railroad crossing are hazardous! This train/auto collision was unusual in that the car hit the train; usually it is the other way around. When a train meets the side of a car, it is almost never a happy encounter. You are 30 times more likely to die in a collision with a train than with another car, and for obvious reasons (well, just in case they are not so obvious, it is because trains weigh a lot more and can't slow down quickly). It happens more often than you think; a train collides with a motor vehicle in America every 90 minutes. According to the Federal Railroad Administration, approximately 2,000 Americans die or are and injured at rail crossings every year.

In appropriate cases, Michaels & Smolak represents motor vehicle drivers and their passengers in their claims against railroad companies for injuries sustained in train/motor vehicle collisions. Sometimes the crossing was not set up right, or the signals failed, or the train conductor did not sound his whistle or bell properly. To be honest, though, these collisions are usually the car driver's fault.

Here are some tips on safety at railroad crossings:
• Be aware that trains usually move faster than they appear to be moving. Don't be fooled!
• Don't pass a vehicle within 100 feet of a railroad crossing.
• Before crossing the tracks, roll down your windows, turn off the radio, air and other noise sources, and listen for whistles, bells or other sounds indicative of a train coming.
• Keep in mind that New York State Law (Vehicle & Traffic Law 1171) requires certain vehicles to stop at railroad crossing (buses, trucks carrying hazardous materials, etc.).
• Always yield to flashing lights, closing gates, whistles, etc.
• When you stop before the tracks, keep a distance of 15 to 50 feet from them. (The tracks are 4-feet, 8 ½ inches wide, and the train's width extends 3 feet past the rails on either side).
• Cross the tracks only at designated railroad crossing.
• Don't get stuck in a railroad crossing. Cross only if you are sure you can clear the tracks. Once you have started to cross the tracks, keep going --- this is no time to change your mind!
• If your vehicle stalls on the tracks and a train is coming, get out, and get your passengers out. Don't waste time trying to restart your car.

Learn from others' tragedies, not your own. Be careful at railroad crossings.

January 7, 2010

Wyoming County Slippery-Road Car Crash Discussed by Upstate New York Auto Accident Attorney

icy road.jpgThe Buffalo News reports today a fatal Western New York car accident in the Town of Perry, Wyoming County, New York at about 8 a.m on Route 20A, near Smith Road. Driver number 1 was heading west on 20A when she lost control of her pickup, police said. Her vehicle crossed over into the oncoming lane of traffic. While this driver suffered injuries, the passenger of the oncoming car was killed. The driver of the oncoming car was also injured. Both were sent to Erie County Medical Center. A passenger in the back seat of one of cars was taken to Wyoming County Community Hospital.

This is a unusually sad accident. So many lives affected! Everyone involved is injured, and one is dead.

As an upstate New York auto accident lawyer who has represented victims of snow and ice-related car crashes in the Syracuse, Buffalo, Oswego and the entire upstate "snow belt", I have personal involvement with such accidents on a regular basis. While it is easy to blame such accidents on the weather, New York car accident law does not see it that way. Every driver in New York has an obligation to maintain control of his or her vehicle. This means that motorists must adjust their driving to the weather conditions. In icy, slippery conditions, a driver must drive slowly, at a speed prudent for the conditions. Other adjustments must be made as well, for example, braking earlier and following other vehicles at a greater distance. Having good snow tires helps, too. In a previous blog post, I gave some other tips about how to drive in icy conditions.

While insurance company lawyers representing drivers who failed to maintain control of their car in slippery conditions will often argue to the jury that their clients were blameless, and that the accident was "an act of God" (after all, God made it snow), in my experience this defense does not often work. When all the facts are carefully presented, it is hard to completely exonerate a driver who, for example, crosses over into the oncoming lane, even in icy conditions. In almost all such cases, a good New York auto accident attorney can prove that the driver knew, or should have known, that the roads were slippery, and that he was simply driving too fast for the conditions.

The proof is in the pudding. If you lose control of your car, then this proves you were driving too fast for the conditions. So slow down on that snowy, icy road.

January 6, 2010

Central New York Medical Malpractice Lawyer Explains Five Medical Malpractice Myths

Thumbnail image for surgery.jpgNew York medical malpractice attorneys,, like medical malpractice lawyers all over the U.S., are often blamed for high health care costs and other woes. But are they really to blame? No! This past November 2009, the American Association of Justice (AAJ) published a bulletin titled "Five Myths about Medical Malpractice". It debunks, with hard statistics gathered by non-biased agencies, all the "medical malpractice myths" spouted out by the insurance industry and doctors' PAC groups. Here is a summary of AAJ's "Medical Malpractice Myths" bulletin:

MYTH #1: THERE ARE TOO MANY "FRIVOLOUS" MALPRACTICE LAWSUITS
Far from it. In fact there are hundreds of thousands of the medical malpractice victims each year, but very few medical malpractice lawsuits. 98,000 people die in hospitals each year from preventable medical mistakes, but only a small fraction of the families sue.. Many more suffer non-fatal injuries, yet still medical malpractice lawsuits are rare. Moreover, the number of medical malpractice suits is declining, not growing. Medical negligence filings dropped 8% between 1997 and 2006. According to the National Center for State Courts (NCSC), medical malpractice cases constitute only 3% of all tort (injury) lawsuits, and only a very tiny fraction of all civil lawsuits. Medical malpractice lawsuits are not only rare, but the few that are filed are general strong cases. The Harvard School of Public Health put researchers to the task of examining over 1,400 closed medical negligence cases and found that 97 percent were meritorious.

MYTH #2: MALPRACTICE CLAIMS DRIVE UP HEALTH CARE COSTS
Not so. Medical malpractice insurance premiums, and injury payouts, constitute only a tiny fraction of health care costs. The National Association of Insurance Commissioners reports that the amount spent defending medical malpractice lawsuits and compensating the victims in 2007 amounted to only 0.3% of health care costs.

MYTH #3: DOCTORS ARE FLEEING THE PROFESSION
Not at all. The number of U.S. physicians has been growing, not declining, for decades. In fact, the number of doctors is growing faster than the general population. In 2007, the number of physicians per capita was at a record high (307 doctors for every 100,000 people).

MYTH #4: MEDICAL MALPRACTICE CLAIMS DRIVE UP DOCTORS' PREMIUMS.
Wrong again. Researchers at the National Bureau of Economic Research (NBER) found that malpractice settlement and verdict payments do not drive premiums up. Even though medical malpractice payouts have not increased significantly over the years, doctors' insurance premiums have increased astronomically. Premiums spike upward when investment income is down (insurers make their money by investing the premiums in the stock market and elsewhere). Insurers need to recover their losses by jacking up premiums.

MYTH #5: TORT REFORM WILL LOWER INSURANCE RATES
Tort reformers always claim that, if tort reform passes, premiums will fall. They are wrong every time. For example, premium rates in states that have capped damages (such as Texas) and states that have not (such as New York) show no appreciable difference. In fact, in 2009, the liability premiums in states without damages caps was, on average, somewhat lower than in states with such caps.

If you or a loved one is seriously injured by medical malpractice in New York, don't buy into the myths about your right to sue driving up health care costs. Instead, see a good medical malpractice lawyer, and get the compensation you are entitled to.

January 5, 2010

Syracuse New York Area Injury Attorney on the Under-Reporting of Accidents and Violations to OSHA.

Thumbnail image for constructioninspector.jpgFrom our perspective as lawyers representing Central New York's injured construction workers in lawsuits against employers and construction site owners, it seems that there are a whole lot of OSHA scaffold, ladder and height-work violations in Syracuse and the surrounding areas. Every year without fail we file new lawsuits on behalf of injured construction workers who were caused to fall from scaffolds or ladders by safety violations. But apparently there may be more OSHA violations going on than even we could have imagined. A significant number of "hidden" accidents are never reported! Let me explain.

A little over a month ago, the U.S. Government Accountability Office (GAO), the auditing agency for Congress, reported that employers and workers routinely underreport work-related injuries and illnesses to OSHA. This means that the number of OSHA violations causing injuries is actually higher than OSHA reports.

Why are so many EMPLOYERS failing to report workplace accidents? The GAO believes it is because they fear workers' compensation premium increases and scaring off prospective and lucrative clients from contracting with them.

Ok, but why do EMPLOYEES fail to report their injuries? The GOA says it is because they fear getting "the ax", or getting reprimanded, or undermining their chances of getting safety-based rewards and bonuses.

OSHA registered 4 million workplace injuries in 2007, including 5,600 fatalities. But if in fact employers and employees are hiding workplace injuries and illnesses from OSHA, then these figures are understated. The GOA report found that OSHA may have failed to include up to 2/3 of U.S. workplace injuries and illnesses.

The solution to the under-reporting? OSHA says it will accept the GOA's recommendation that it require its inspectors to more thoroughly interview employees during routine audits so as to cross-check the accuracy of the accident reports (or lack thereof) they are getting from employers.

Will it work? Not if employers are encouraging employees to maintain a good safety-record at all costs, including by sweeping accidents and injuries under the rug. Employers can do this by wielding the "big stick" of dismissals and reprimands for reporting accidents, or by offering enticing under-reporting "carrots" to their employees in the form of rewards and bonuses for "good safety records."

OSHA had better think harder about how to avoid this pervasive under-reporting.

January 4, 2010

Syracuse New York Area Accident Lawyer on OSHA's 2009 Top-Ten Safety Violations

constructioninspector.jpgThe U.S. Department of Occupational Safety and Health Administration, commonly known as "OSHA", has released its "Top 10 Most Frequently Cited" violations for 2009. This list not only exposes the most frequently violated safety regulations in 2009, but also, in my experience, represents a pretty accurate list of the top 10 violations that, year after year, cause the most serious injuries in the workplace in New York. Here's OSHA's top ten list (with my editorial notes tagged on):

1. SCAFFOLDING, CONSTRUCTION (29 CFR 1926.451)
Note: The NUMBER ONE safety violation. Scaffold accidents are frequently caused when the planks or support boards collapse or slip off the scaffold frame, or when the scaffold worker slips and falls from the scaffold or is struck by a falling object that causes him to fall off the scaffold. In a previous blog post, I wrote about how injured New York scaffold workers benefit from a special Statute, Labor Law 240, which allows them to sue for compensation for such scaffold violations. We have represented many construction workers in scaffold accident cases.

2. FALL PROTECTION, CONSTRUCTION (29 CFR 1926.501)
NOTE: Any time a worker is at a height, OSHA rules require that he be protected from falling by use of lanyards, safety nets, and other fall-protectors. New York's special Statute, Labor Law 240, which I previously blogged about, allows New York's injured construction workers not properly protected from such falls to bring claims for compensation for their pain, suffering, lost income, medical expenses and other damages. We have represented many construction workers injured in such falls.

3. HAZARD COMMUNICATION, GENERAL INDUSTRY (29 CFR 1910.1200)
NOTE: Chemical manufacturers, importers and others are OSHA-required to evaluate the dangers and hazards of the chemicals they put on the market, and are further required to create warning labels and safety data sheets to communicate these hazards to the downstream users. Apparently, they fail to comply with high frequency.

4. RESPIRATORY PROTECTION (29 CFR 1910.134)
NOTE: Respirators protect workers from the dangers of hazardous dusts, smokes, gases and vapors. Exposure to such air-borne materials can lead to cancer, asthma, lung impairment, other diseases or even death. I recently blogged about a large settlement we had for the victim of occupational lung disease. As the large number of OSHA respiratory protection violations in 2009 shows, our client was far from the only victim of needless workplace lung injury.

5. CONTROL OF HAZARDOUS ENERGY (a/k/a Lockout/Tag out) (29 CFR 1910.147).
NOTE: "Lockout/Tag out" refers to practices and procedures to protect employees from the unintended startup of dangerous machinery and equipment, or unexpected release of hazardous energy during service or maintenance of machinery. Unfortunately, failure to follow required lockout/tag out procedures often results in devastating injuries, including mangled or burned limbs, or even death. We have handled many cases of "lockout/tag out" violations.

6. LADDERS, CONSTRUCTION (29 CFR 1926.1053)
NOTE: Ladders that are improperly placed, positioned, operated or used often cause workers to fall, resulting in horrendous injuries or death. New York's special statute, Labor Law 240, which I have blogged about, also protects New York construction workers who are injured on ladders. We have handled many such claims.

7. POWERED INDUSTRIAL TRUCKS (29 CFR 1910.178)
NOTE: Many workers are injured every year by powered industrial trucks, or forklifts. For example, we are currently representing a worker who was driving a loaded forklift from the back of a truck onto a loading dock when the truck, which was not secured with "blocks" under its wheels, as required, rolled away from the dock, causing the forklift, and the driver, to fall between the dock and the truck.

8. ELECTRICAL, WIRING METHODS, COMPONENTS and EQUIPMENT, general industry (29 CFR 1910.305)

9. ELECTRICAL SYSTEMS DESIGN, general requirements, general industry (29 CFR 1910.303)

10. Fall protection, training requirements (29 CFR 1926.503).

So there you have it: This year's "top ten" OSHA violation list. When will employers and others in charge of workplace and construction site safety finally get it? When will these frequent, serious, and life-altering safety violations end? I don't know, but I do know this: As long as they continue, we at Michaels & Smolak will continue to fight for the victims of those violations.

January 3, 2010

Syracuse New York Area Attorney Explains Restaurant's Liability to Injured Patron for Falling Moose Head

moosehead.jpgThe Associated Press and the Daily News both reported last week that an injured restaurant patron, Raina Kumra, filed a New York personal injury lawsuit against the White Slab Palace restaurant in lower Manhattan after a stuffed moose head fell from its wall onto her head. The restaurant first opened its doors for business only last February. Her lawsuit claims damages consisting of a concussion, loss of cognitive skills, chronic neck pain, dizzy spells, fatigue and anxiety. The moose head weighed 150 pounds and sported 3-foot-wide antlers.

When this Central New York personal injury lawyer read this story, my first thought was in Latin: "Res ipsa loquitur". No, I don't speak Latin. This is a legal doctrine, taught to all first year law students, which allows an injured plaintiff to use circumstantial evidence to prove negligence. In Latin, the phrase means "the thing speaks for itself." In order to invoke the doctrine, the injured plaintiff has to show that the injury-producing event normally would not happen in the absence of some negligence. (Here, does a moose head just fall from a wall unless someone failed to secure it properly?). The injured person also has to show that the object that caused the injury (here, a moose head) was in the exclusive control of the defendant. The plaintiff must sufficiently eliminate other possible causes, including the conduct of the plaintiff herself or of other parties who might have tampered with the object.

The theory is often used in falling object cases. We at Michaels & Smolak have brought several claims based on the theory of "resi ipsa loquitur", mostly when merchandise falls from a shelf onto a shopper at big-box stores such as Wal-Mart, but also in our New York medical malpractice lawsuits where a doctor leaves a foreign object, such as a surgical sponge, inside the patient.

When I first read of this falling moose-head case, I thought it was strong one. How does a moose head suddenly become dislodged from a wall at a restaurant that has been open less than a year unless the owner somehow failed to secure it properly? But since I first read the story, a witness has come forward who says that he saw another patron tugging on a balloon tied to the moose head's antlers in the moments before it fell. If this is so, it puts a dent in the res ipsa loquitur theory; perhaps the balloon-tugging patron caused it to become dislodged rather than the owner's failure to secure it. Still, it would seem a 150-pound moose head should be sufficiently secured so as to resist a little tugging.

Will Kumra prevail? Stay tuned. The New York press seems to have gotten a kick out of this story, so we will surely hear more . . ..