March 2010 Archives

March 30, 2010

Central New York Lawyer: Are Amusement Park Rides Safe?

roller coaster.jpgToday's Syracuse Post Standard reports on a seven-million dollar investment by the owners of the Darien Lake Resort to expand the amusement park this spring, adding new water-based rides and other attractions, and splitting Darien Lake into two much larger amusement parks. The Florida-based corporate owner of Darien Lake christened the new expanded water park "Splash Town" and the amusement ride area "Darien Lake Theme Park". The article reports that Central New York is one of Darien Lake's top markets.

But are amusement parks like Darien Lake safe? I read in the paper this week that an Indianapolis boy is fighting for his life after an amusement ride accident on a "tea cup" ride at an amusement park. The state authorities later determined that the ride had not been inspected in more than a year. At the same park, a 6-year old boy was seriously injured on an amusement ride only a week before.

The U.S. Consumer Product Safety Commission keeps statistics on amusement ride accidents. Between 1987 and 2003, a period of 16 years, only 12 people were killed on amusement park rides. That's not bad, but in 2002 alone, over 3,000 injuries were reported from "mobile" amusement rides (the kind that are assembled at fairs) in the United States.

Amusement park ride injuries are usually caused by mechanical failure, failure to regularly inspect and maintain the rides, missing safety equipment, non-functioning lap bars or safety restraints, negligent operation, improper assembly or unsafe design of the ride, or by the operator of the ride stopping or starting the ride too abruptly. If an amusement ride operator or owner causes injury or death to a patron through any of these negligent acts, the victim or the victim's family has a right to bring an amusement ride lawsuit to recover medical expenses, lost wages, pain and suffering compensation and for other damages.

Let's face it; a lot of amusement ride injuries are also caused by user negligence. Some people just don't follow the instructions (e.g. height requirements for a ride, stay seated, don't exist till you are told to, keeping hands and feet in the ride, strap on the safety strap). Or they ignore their own health limitations. For example, if you have neck or spine problems, you should obviously avoid rides that whip your head around.

Bottom line: Amusement park owners and their employees must exercise extreme caution so as to provide a safe ride, and so too must amusement park guests.

March 29, 2010

Can You Sue Your Spouse's Lover for Stealing Your Spouse? Not in New York, Syracuse New York Tort Lawyer Explains

sad wife.jpgOk, I plead guilty to not being a "tort reformer". I generally do NOT support eliminating or even reducing the rights of the seriously injured to recover compensation, including for pain and suffering, from "tortfeasors", that is, those who injured them through wrongdoing, negligence or carelessness. That being said, I think the State of North Carolina needs a little tort reform.

The local newspapers have been reporting on a curious case of a Wells College dean (Aurora, New York) who was sued by the spurned wife of the man she now resides with. The heartbroken cast-off convinced a North Carolina jury to award her $9 million for her loss (must have been quite a man!). It probably didn't help that the alleged husband-thief missed the trial (she says she was not notified in time). Now the temptress is asking the judge to toss out the verdict.

Could this happen in New York? No. But it could have happened before 1935, which is the year New York, like almost every other state in the Union, abandoned the archaic "alienation of affection" tort, which allowed a deserted spouse to sue his or her adulterous spouse's lover to recover damages.

Divorce is bad enough, but allowing the spurned spouse to sue the interloper for damages just adds insult to injury and prolongs the pain and turmoil. As a leading North Carolina lawyer has said, "an alienation-of-affection case just polarizes everyone and devastates everything in its path including the children and both spouses. The world has changed. Women are no longer viewed as property. Alienation-of-affection is something that dates way, way back, and if there was ever a law that needed to be removed, this is it."

Amen to that. Come see me with your car accident case, your dog bite case, your medical malpractice case, your construction accident case, or whatever personal injury or accident case you might have, but please don't come to me with your "she ran off with my husband" case!

March 27, 2010

Syracuse New York Lawyer on Sex Abuse Lawsuits

sad teen silouette.jpgSexual abuse lawsuits are in the news a lot these days. It is now common knowledge that some priests, under the Catholic Church's employ, were busy (between masses?) molesting and even raping boys. The Catholic Church sex abuse scandal has even reached the doorstep of the Pope! The Pope, they say, knew (before he became Pope) that these priests had sexually abused young boys, yet was complicit in a cover-up. The Church allowed the pedophile priests to continue to work with the boys even after it knew of their track record for abuse. The Church moved the abusers from one parish to another where they then abused other boys.

The victims have brought sexual abuse lawsuits not only against the individual priests that abused them, but their employer, the Church. Any compensation from these lawsuits will not come from the priests, who generally have no assets. It will come from the "deep pocket", the Church. And rightly so, since the Church failed so miserably to protect these boys from these sexual predators.

What do the Boy Scouts of America have in common with the Catholic Church? Quite a bit, according to a sexual abuse lawsuit being tried right now in Oregon. We're not talking about a suit against a local Boy Scout Troop, but the big buys, the actual Boy Scouts of AMERICA. The difference between this lawsuit and others that have been filed across the nation is its breadth and scope. The lawsuit accuses Boy Scouts of America of a cover-up. It alleges that the Boy Scouts of America allowed troop leaders to continue to work with scouts after they knew they had abused scouts, even sometimes after they had been convicted of sexual abuse. According to the victims' lawyers, the Boy Scouts of America moved the abusers from one troop to another where they then abused other boys. Sound familiar? (hint - Catholic Church).

As a lawyer who has handled several Central New York sexual abuse cases, I can tell you that the main problem with these kind of cases is that you can almost never get any money out of the SOB who molested, abused or raped the child victim. Liability or homeowner's insurance doesn't cover sexual abuse and other intentional assaults and crimes. So recovery is limited to whatever the sexual predator owns. And usually he either never owned anything of value, or if he did, he has spent it on his criminal defense, and is now rotting in a jail cell with no income.

That is why lawyers have to go after the employer (for example, the Church or the Boy Scouts of America). That is where you go to seek compensation for the horrendous humiliation, pain, suffering, emotional turmoil and even suicidal ideation that sexual abuse visits on its often very young victims. To prevail in these lawsuits, you have to show that the employer (Church, Boy Scouts of America) failed to properly screen their (priests, troop leaders) before hiring them and placing them with easy access to children, or that the employer (Church, Boy Scouts of America) failed to get rid of (the priests, troop leaders) when they knew or should have known that they were predators.

Among Michaels & Smolak's lawyers are Boy Scouts (my partner Jan Smolak is an Eagle Scout) and Catholics. We know first-hand that most scout leaders and Church priests are good people. And we are not surprised that there are some bad apples in the mix. With outfits as big as the Church or the Boys Scouts, how could there not be? But we also know that there is absolutely no excuse for either the Church or the Boys Scouts of America covering up abuse within their ranks, or failing to get rid of the bad apples as soon as their deplorable acts became known. For this reason, we applaud plaintiffs' lawyers around the country who represent the victims of such abuse against both the Church and the Boy Scouts of America. We wish them luck in obtaining fair compensation for their clients.

March 24, 2010

Syracuse New York Defective Product Lawyer on "Infanto" Baby Sling Recall.

slingrider.jpgWhat is the worst kind of defective product? A good candidate is a baby-killer. And that is what the Infanto Baby Slings "SlingRider" and "Wendy Bellissimo" (sold by several large retailiers such as Target, Babies R Us and Burlington Coat) turned out to be.

Today the federal agency responsible for consumer safety, the Consumer Product Safety Commission (CPSC), recalled more than 1 million Infanto baby slings after they apparently caused at least three infant deaths BY SUFFOCATION. The slings are especially dangerous for infants under 4 months old. Babies can suffocate in them in two ways: First, the baby's nose and mouth can get pressed against the sling's soft fabric, thereby blocking its ability to breathe (or cry out in distress). Second, if the baby is placed in the curved position (c-like), the baby's head can flop forward, chin-to-chest, reducing the ability of the infant to breathe (or cry out in distress). Small infants' necks are not strong enough to pick their head up out of this position.

This story is personally distressful to me because of my own blissful experience with baby slings. Baby slings became popular about a dozen years ago, when my boys were still infants. They are great because they allow on-the-go parents (like me and my wife) to bond closely with their babies as they go about their business. I remember a trip we took to New Orleans where I had my one-year old cuddled up against my chest as we strolled all over the French Quarter. He was so peaceful in that sling, with his little head peeking out over the lip of it, checking out the Bourbon Street scene!

I don't want to even try to imagine the horror of a parent who, feeling her warm, peaceful baby snuggled up against her chest, suddenly starts to realize that there is something TOO peaceful about the baby . . . .

Nothing can replace a lost child. It is among the most devastating of human experiences. We at Michaels & Smolak have had the dreadful duty of bringing child wrongful death cases to trial for grieving parents. Sadly, New York wrongful death law allows for NO COMPENSATION to parents for the DEATH of a baby. Incredible, but true. Read my prior blogs about this most horrible law by clicking here and here. But a parent whose baby suffocates because of a defective product has a right to sue the manufacturer, and others involved in the products distribution, for the PAIN AND SUFFERING the infant must have endured while suffocating to death.

A manufacturer of a defective product is strictly (automatically) liable for the harm its dangerous product causes, even if the manufacturer had no reason to know that the product was dangerous. What matters is only this: Was the product UNREASONABLY DANGEROUS? If it was, then the manufacturer is liable, regardless of how careful the manufacturer was in designing and manufacturing the product.

I have hated writing this blog, but I feel it is my duty both to warn my fellow Central New York and Syracuse area parents of this dangerous product, and inform them of their rights, should, God forbid, tragedy strike their family.

March 24, 2010

Central New York Accident Lawyer: Health Care Overhall Will Help Syracuse and Central New York Accident Victims

american health care.jpgI generally try to avoid talking about politics in this Blog. So, without telling you what I personally think of Obama's health care overhaul, I will tell you what impact the new Law will have on Syracuse and Central New York personal injury and medical malpractice victims.

First, though, let's talk about how the current health care system affects victims of injuries caused by someone else's wrongdoing or negligence. If these injured folks are unlucky enough to be among the 15% of Americans who can't afford, and thus do not have, health care insurance, they are in a real bind. The liability insurer for the at-fault guy will REIMBURSE their medical bills after they are done treating for the injury, upon a global settlement of the whole case, but the liability insurance will NOT pay the medical bills as they come due in the meantime. This too often means that the accident victim's doctors won't treat him, because no one is paying his bills. Doctors usually won't wait for their patient's settlement or victory at trial to get paid because they don't know for sure that the patient will win his case, or get a settlement that will cover the medical expenses. And things get worse for the patient-accident victim. Without proper, well-documented medical treatment, it is later difficult to prove the accident victim's injury.

So the accident victim really gets injured not once, but THREE TIMES!: First, when someone's carelessness caused his physical injury. Second, when he can't get the medical treatment he needs and thus has to suffer through needless pain and perhaps ends up with a much worse result. And third, when he doesn't get a fair settlement or verdict because he is unable to fully prove his injury for lack of medical records documenting it.

Believe me, this happens all the time. Example: I have a client, a poor farm worker, whose neck was broken due to a machine operator's negligence. The at-fault guy has liability insurance, but of course won't pay the medical bills as they come due. My client got some initial medical treatment, but then the doctors refused to see him because he wasn't paying his bills. To make matters worse, lawyer ethical rules prohibit me, his attorney, from lending him money so he can get the medical treatment he needs. He hasn't been able to work since of the accident, and he hasn't been able to get medical treatment, either. So now he has no "medical bills" to be reimbursed by the liability insurer when he eventually wins or settles his case, because he has not been getting any treatment, and he has almost no medical proof of his injury. In sum, he is stuck between a rock and a hard place.

Under Obama's new health care system, 95% of Americans will be covered. Thus, far fewer injury victims will fall between the cracks as has the client I described above. So as much as I hate the idea of turning this blog into a political commentary, on behalf of my many future injured clients, who will be the victims of someone else's carelessness, I have to say, hurray Obama!

March 22, 2010

Syracuse Motorcycle Accident Lawyer on Upstate New York's First Reported Motorcycle Fatality of the Season

Thumbnail image for motocycle.jpgThe first upstate New York motorcycle fatality of the season has been reported. Local news sources say that a West Seneca man died Sunday after his motorcycle rear-ended another car on the Thruway in West Seneca. The 29-year old rider was thrown from his bike upon impact, but the motorcycle continued on after the rider was ejected, and eventually struck a guardrail and burst into flames. The cyclist died at Mercy hospital hours later.

Unfortunately, this tragic end of young man's life won't be the last this motorcycle season. While a car-on-car rear-end collisions can cause only minor injury, a motorcycle rear-end accident is often, as it was here, deadly. Sudden stops can cause the bike to catapult end-over-end, with the rider being thrown off the bike, or under it.

Explosions and fires from gas leaks, like the one in this case, are also quite common after serious motorcycle collisions.

Motorcycle accident statistics speak loud and clear: Only about one out of every five motorcyclists walk away from a motorcycle accident with minor injuries. Motorcyclists are about 25 times more likely to die in a collision than passengers in other motor vehicles. Approximately 80 percent of motorcycle crashes result in injury or death, but for automobile occupants, injury or death is at only 20 percent.

The common notion that motorcycle accidents are usually caused by aggressive motorcycle driving is flat wrong. Most motorcycle accidents are not the motorcyclist's fault (though this one appears to have been). Several studies show that two thirds of all collisions between motorcycles and other vehicles are the other vehicle driver's fault. Usually the other vehicle fails to see the motorcycle and turns into the motorcycle's lane or otherwise violates the motorcyclist's right of way.

Motorcyclists, of course, are not blameless. Sometimes they cause accidents by speeding, by failing to slow down when cornering, or by under-cornering or over-braking. Inexperience with motorcycles is the root cause of many such mistakes.

The most important study ever conducted in the U.S. on motorcycle accidents was the "Hurt Report" (Los Angeles area, 1981). One of the most important findings of this study was that most motorcycle-car collisions are caused by the failure of motorists to notice motorcyclists. Therefore, you can minimize the risks you run on your bike by using your headlight even in the daylight and wearing high-visibility, bright yellow, orange or red jackets.

March 19, 2010

Toyota Pulls Out the "Blame The Victim" Defense: The Oldest Trick in the Personal Injury Lawsuit Defense Book.

witch trial.jpgJames Sikes, in case you missed the story, is a poor fellow whose name recently hit the national news when his 2008 Toyota Prius' accelerator pedal stuck to the floor, sending him rocketing down Interstate 8 at speeds up to 95 miles per hour.

Just the other day, Toyota held a nationally televised news conference to announce that its "investigation" of the Sikes incident has resulted in findings "inconsistent" with Mr. Sikes' account. Although Toyota does not claim to know what happened, it does claim to know what did NOT happen, and apparently, that means the accelerator pedal did NOT stick.

If you think Mr. Sikes is making it up, google and listen to his 911 call, which documents his frantic attempt to stop the car with law enforcement help.

Well, it had to happen sooner or later. Toyota, like any red-blooded corporate giant, would eventually have to dig into its bag of defense tricks and pull out an old standard --- the "blame the victim" defense. How does it work? It works the same way in a Syracuse or Central New York injury lawsuit as it does anywhere else. If you are guilty of a screw up that ends up seriously injuring someone, you blame the victim. You do it in Court, you do it in the press, you do it everywhere. It's simple, really. A monkey could be trained to do it. The more hurt your victims are, the more you blame them. The guiltier you are, the more you blame them.

And Toyota is starting to look pretty darn guilty. Evidence has been piling up for weeks that Toyota had known about its unintentional acceleration problem for years, yet hid it from the safety overseeing authorities and the public. It is no coincidence, then, that Toyota has chosen this moment to pull out its "blame the victim" defense. For a while there, Toyota was sounding, well . . . contrite ("gee, sorry folks, we'll recall and fix the problem"). But no longer. Now it's, "you're making it all up". This is actually a subcategory of the "blame the victim" defense called the "liar-liar-pants-on-fire" defense.

This trick is certainly not new to us Syracuse / Central New York accident lawyers! We hardly try a case without it being hurled (like a runaway Toyota) at our clients. It goes like this: "Ladies and gentlemen of the jury, plaintiff's excruciating neck pain does not exist .... All fake. Never mind that plaintiff endured 6 huge needle injections, with significant health risks, into his spinal cord designed to alleviate pain. --- he did it all to get a big verdict".

Just a few weeks ago I blogged about a Yates County New York auto accident case I recently handled where a car had illegally cut my motorcyclist off, giving him one second to decide where to drop his bike down to avoid a collision and probable death. The defense? "You dropped it down the wrong way, and on the wrong side, you could have done this different, you could have done that different". Blame the victim!

Why do they do it? Unfortunately, it works--sometimes. There is something deep inside our human psyche that wants to blame the victim. That way we don't have to feel bad about what happened to them. And we don't have to help them. And a jury doesn't have to expend time and energy figuring out how to compensate them. And that's why you need a good personal injury lawyer to combat this defense and make a jury do its job of fairly compensating the victim.

March 18, 2010

Tragic Elbridge, New York Car Crash Killing Dad, Severely Injuring Mom, And Leaving Child Unharmed, Will Likely Provide Inadequate Insurance Coverage.

insurance policy.jpgHow can you read a story like this and not want to weep? The Post-Standard reports that a couple and their 4-year old son were returning home via Route 31 in Elbridge, New York Saturday evening when their Chrystler PT Cruiser left the road and hit a tree, killing the father-passenger, leaving the mother-driver in critical condition with head injuries, and, miraculously, sparing from any harm their 4-year old child in the backseat.

As a Central New York auto accident lawyer, I can't help but be concerned for the future of the seriously injured mother and her child. In large part, their fortunes turn on insurance coverage. There are several types of auto insurance that are triggered in a case like this: (1) no-fault insurance; (2) no-fault death benefits; and (3) liability insurance.

Number (1), no-fault insurance, pays for basic medical coverage and lost wages regardless of whose fault the accident was, up to $50,000 for each injured person. Here, the only surviving injured person is the mother-driver. But she will surely run through her $50,000 no-fault insurance quickly (hospitalized for critical brain injuries). There will be nothing left to cover her lost wages, or her additional medical expenses. Bad news.

Number (2), no -fault death benefits, provides even less coverage: $2,000 for the death of the father-passenger. That's it! Bad news again.

Number (3), liability insurance, pays for any medical costs or lost wages beyond what no-fault paid, plus any "pain and suffering" compensation for serious injuries, but only if you can prove that some driver other than yourself was at fault for causing the accident. Here, since the mother-driver was at fault for losing control of the vehicle, she will not qualify for any liability auto insurance. More bad news.

The father's estate, however, will be able to tap that policy. His estate can bring a claim under New York wrongful death law for the mother's negligent driving. The proceeds of that claim would go to his son (if he was providing economic support, which we assume he was). Good news, right? But read on!

How much insurance is available for this wrongful death claim? The minimum New York Car Liability insurance is $25,000 per person injured. Many car owners carry only this minimum, which is too bad, because in a case like this, much, much more is needed. The father was in his 30's, and if he was working and supporting his child, then the economic loss claim is very large. It could easily be for hundreds of thousands of dollars (for all the economic support dad would have provided for his child until he turned 21). This child would end up with all this if only there were enough insurance!

But let's face it; it isn't going to be there. Yet more bad news! That's why good personal injury lawyers don't stop there. They don't give up so easily. They thoroughly investigate the accident to try to find another responsible party who might have more insurance or other monies available. In a case like this one, where there are apparently no other cars or drivers involved, the logical place to look is at the roadway. Was there something about the roadway that was unsafe and made the mother-driver lose control of her car?

Most likely not. New York defective roadway cases are tough to make out. I blogged about these kinds of cases earlier. But a good car accident lawyer will thoroughly investigate that possibility because the injuries are so enormous and the available insurance so woefully inadequate. If it turns out that there was something wrong with the roadway (example: should there have been guardrails at this location?) that contributed to the accident, then there will be lots of compensation available --- the roadway here is owned and maintained by the State of New York --- a "deep pocket " for sure. Well, maybe not so deep these days . . . but still deep enough!.

March 14, 2010

Personal Injury Attorney Advertising --- Yuk!, But Constitution Protects It.

I hate attorney advertising, especially personal injury lawyer advertising. Yet I advertise. Well, I mean, my firm does. I remember when we finally decided to advertise on TV. It was a tough decision. For years Michaels & Smolak prided itself on its success in attracting top personal injury and medical malpractice cases through word of mouth and through referrals from other attorneys who knew that we were among the best in the New York personal injury and medical malpractice field.

But our case load had started to dwindle even though we were still at the top of our game. Why? Because other Central New York accident lawyers were advertising and we were not. They were getting the cases simply by being on TV! For the most part, their ads were in terrible taste (examples: an attorney who called himself "The Hammer" and a firm that called itself "The Heavy Hitters" and one who claimed he was "a son of a bitch", but if you hired him he would be "YOUR son of a bitch!").

All this advertising, though totally tasteless, and even deceptive, was legal because decades ago the U.S. Supreme Court had ruled that attorney advertising fell under the protection of the "free speech" clause of the First Amendment to the United States Constitution. In other words, those guys had a right to say all this crap in their ads, even though it created a terrible image for personal injury lawyers.

Well, we at Michaels & Smolak are not used to rolling over and letting our opponents beat us. So we fought back. We went on TV with some ads of our own. Only ours were simple, dignified and straight-shooting. No "tough guy" monikers. No screaming at the camera. No silly jokes. You can watch a clip of one our ads by clicking the image at the bottom of this blog.

Then in January 2007 the New York State Office of Court Administration, which is responsible for attorney regulation and discipline in New York State, amended the Code of Professional Responsibility by adding some new rules prohibiting some of the most tasteless and deceptive practices. For example, they barred the use of monikers such as "Heavy Hitters" or "the Hammer" that suggested the lawyer would get great results. They barred other attention-grabbing techniques, too, as well as testimonials from clients about pending matters, and fake portrayals of judges or law firms.

One of the big advertising law firms, though, challenged those rules in Federal Court, alleging that the new rules violated the firm's First Amendment rights. The Federal Court in Syracuse agreed and struck down most of the new rules as unconstitutional. Just the other day, the Second Circuit Court of Appeals affirmed that Decision, in large part, in the case of Alexander v Cahill

So what this means is that if I want to advertize on TV as "Mike the Machete Bersani" and appear, bare-chested, wielding a machete in a Court Room, well .... I can. But don't hold your breath . . . .


March 12, 2010

Syracuse New York Accident Lawyer: Landowners May Be Liable For Falling Trees or Tree Branches.

dead tree.jpgYou are out for a stroll on a nice, but windy, spring day and suddenly, as you walk under a tree, a branch dislodges and falls on you, seriously injuring you. Is anyone liable for your injuries? Can you bring a New York personal injury lawsuit for injuries caused by a falling tree branch? After all, wasn't this a "natural" occurrence? No one is liable for that, right?!

The answer is (as is so often the case in New York personal injury law) "it depends". The owner of the property, or whoever is in control of the property, where the tree is growing MAY be liable for the tree branch accident if they "knew or should have known" that the tree was dead, rotten, or in poor condition. If an owner, or someone who controls the property, fails to remove a decaying, rotting or dead tree, or branches, and the tree or a branch falls and injures someone, or falls on a roadway and causes a car accident, he can be held liable.

Here's a recent example of a falling-tree branch injury that could, or could not, become a valid case, depending on the circumstances: A Brooklyn man was recently killed in Central Park when he was struck by a falling tree branch that snapped off under the weight of wet snow. As reported in the New York Times, the tree branch weighed over 100 pounds and struck him directly on the head. Could the City be held liable for this tragedy? It looks like a tough case. The New York Times reports that branches were falling down all across the City because of a heavy build-up of wet snow. Maybe even healthy branches were giving way under the weight of the snow. If the tree showed no obvious signs of decay, rot or death, then the City is most likely not liable.

Tree branches falling on people, roadways or cars is not as uncommon as you might think, and when this happens, it can cause catastrophic injuries such as cracked craniums, brain damage, or even death, as it did in this Central Park case.

Moral of the story: If you own trees near sidewalks or roadways, check them from time to time for rot, decay or death. Have a tree specialist examine them, too. Remove any decaying or rotten parts of the tree, and if the tree is dead or dying, get rid of the whole thing. You might save someone's life, and you might prevent a lawsuit. Also, if you or a loved one is injured by a falling tree or tree branch, call a New York personal injury lawyer for advice.

March 12, 2010

Central New York Motorcycle Accident Lawyer Describes Frivolous Insurance Defense

motorcycle.jpgI was in Court the other day on a Central New York motorcycle accident lawsuit we filed some time ago. The motorcycle accident happened when a car, which was parked on the side of a highway in Lansing, New York, suddenly pulled out across the highway to make a u-turn, and in so doing, forced our motorcyclist client to drop his bike to avoid a collision. Our client was blameless --- he had only a second to avoid a collision and did he best he could.

What position does the car driver's insurance company take? A typical insurance defense position: "It was your client's fault. He shouldn't have dropped his bike. He should have steered around the car. He should have done this, he should have done that, Yadayadayada." We tried to settle with them early on, but they stuck to their position that our guy was "at least 70% at-fault". Our position never wavered: Our client was 0% at fault and the car driver was 100% at fault.

The defense was completely frivolous. All the case law in New York says that when a motorist is confronted with an emergency situation caused by another driver's negligence, and has only a few seconds to react, he can't be found at fault for having failed to react better. This is called the "emergency doctrine". And it makes sense, right? How can you hold an innocent driver liable for reacting as best he can in a split second to avoid crashing into a car driven by some crazy fool who cuts him off?

Insurance companies must have a special course they put their lawyers through to teach them how to make groundless, even ridiculous arguments, with a straight face. This insurance company lawyer had the nerve to stand there in open Court and argue, against all known law, that our client should have done things better in that one second he had to react. She never even mentioned the "emergency doctrine", but rather, deliberately ignored it.

The insurance industry has popularized the term "frivolous lawsuit" but what they never tell the public about is their own frivolous defenses. And believe me, they are all too common.

I am happy to report that the judge did not buy this insurance company's frivolous argument. The judge granted "summary judgment" to our motorcyclist, which means that the driver of the car has been held completely, 100% liable for the accident, and our client 0% liable, without even having to go to a jury. Now all we have to do is get in front of the jury to prove the amount of compensation our client is entitled to for his serous injury. We'll have to wait and see what frivolous defenses the insurance company lawyer will cook up to try to minimize our client's serious injuries. But we'll be ready for them .... as always.

March 10, 2010

Central New York Bicycle Accident Lawyer: Be Safe on Your Bike

Today's spring-like weather made me want to jump on my bike for the first time since last fall. Unfortunately, work got in the way! Still, I am looking forward to another cycling season.

Unfortunately, bicycle season for me also means calls from desperate injured bicyclists and their families. About 52,000 bicyclists per year are injured in the U.S., and about 800 are killed. Every year, several bicycle injury lawsuits in Syracuse and Central New York are filed. Usually these cyclists have suffered severe injuries from car-on-bicycle crashes. When a bike meets a car, guess who wins?

My experience handling bicycle crash cases has taught me that most bicycle crashes are the car driver's fault. Usually, the driver simply fails to see the bicycle. Still, there are many things bicyclists can do to minimize the chances that they will get hit by a car. I urge you, fellow cyclists, to do everything you can to avoid becoming one of Central New York's bicycle accident victims!

I recently found a great short video on bicycle safety produced by the National Highway Traffic Safety Administration (NHTSA). Check it out (click below) before you go out for your first bike ride of the season. It's a good review of bicycle safety rules. Have fun, and be careful out there.


March 9, 2010

Central New York Personal Injury Lawyer Explains Difference between "Pain" and "Suffering"

sad teen silouette.jpgIn my last blog post, I explained that "pain and suffering" is an important part of compensation sought in a personal injury lawsuit. Personal injury lawyers here in Central New York, and everywhere else for that matter, tend to lump the two words, "pain" and "suffering", together as if they meant the same thing. But they don't. There is a difference between "pain" and "suffering". That's what today's blog is about.

Generally, "pain" is the physical part of the equation. For example, fractures, broken bones and nerve impingements all cause physical pain. Suffering, on the other hand, is the mental and emotional harm that physical pain can cause. The physical pain inhibits the victim's ability to work, exercise, or do his or her normal routines. For example, a victim of an accident may not be able to go bowling anymore, or not be able to hold his or her child. This can cause serious psychological suffering, including anxiety, sadness and depression. That is what we call "suffering".

If the pain is long term, then the suffering is usually correspondingly greater. Long term disabilities can cause a lot of "suffering". They can create a permanent and dramatic change in lifestyle and life outlook, leading to depression, fear, panic attacks, post traumatic stress disorder (PTSD), or even suicidal thoughts.

So pain causes suffering. And a lot of pain causes a lot of suffering. But pain is not the only thing that causes suffering. The other losses suffered by a severely injured person also cause suffering. For example, an injured parent may have had a good income, but now can't work. Her income is drastically reduced and she can no longer afford to provide her children with the same lifestyle. This causes suffering, that is, mental anguish, worry, stress and emotional turmoil.

So there you have it. When personal injury lawyers talk about "pain and suffering" compensation, they mean compensation for the total culmination of the physical and psychological and emotional aspects affecting the victim after an accident. Under our civil justice system, those who endure pain and suffering because of someone else's carelessness, negligence or intentional wrongdoing, are entitled to full compensation.

A competent trial lawyer must know the proper techniques for enhancing a jury's understanding of, and feeling for, his or her client's pain and suffering. If fact, that is one of the most important things a personal injury trial lawyer can do. The other losses (lost income, medical bills, etc.) often speak for themselves. But since pain and suffering are invisible, the trial lawyer must know how to make them not only visible, but palpable and real to the jury.

March 7, 2010

Syracuse New York Personal Injury Lawyer Explains "Pain and Suffering" Compensation

scales of justice.jpg"Pain and suffering" is the ugly duckling of personal injury damage claims. Many people roll their eyes when those three words are spoken, especially when spoken by personal injury lawyers. The concept is so unpopular, so despised, that when Syracuse and Central New York personal injury and medical malpractice lawyers pick juries for trial, one of the most important questions we ask, to see whether a juror can be fair, is, "what do you think of awarding compensation for pain and suffering"? Many, many prospective jurors say, "I'm against it" or like words.

Yet New York personal injury law entitles victims of the careless, negligent or intentional acts of others to FULL compensation for all their losses, including lost wages, medical expenses and, yes, "pain and suffering". Why? Think of the "scale of justice" (pictured on this page). When someone is injured through someone else's fault, the scale tips down on one side. The "down" side is where the victim is. The whole idea of our civil justice system is to tip the scale back up to a balanced state again. If someone has suffered lost wages, medical expenses, and pain and suffering, would the scale be tipped upright again if he or she were compensated only for lost wages and medical expenses, but not pain and suffering?

Unfortunately, people seriously injured in an accident don't just jump up off the pavement, brush themselves off, and go on with their lives as if nothing happened. Pain and Suffering sometimes lasts a lifetime. The victim's way of life can be completely altered. It converts athletes into couch potatoes. It turns happy people into sad, anxious people. It turns families upside down when one parent, or child, is constantly in pain.

Pain and suffering should not be a political issue. It is not an issue to be laughed at or derided. It is very real, and very serious, for those who aren't able to play with their kids the way they used to, or have to take pain medications every day to deaden, but never completely eliminate, the pain. When you are in pain, you can think of almost nothing else except the pain. You can't enjoy the simple pleasures of life because the pain shouts out the pleasure.

Justice requires FULLY compensating innocent accident victims. Only a FULL cup of justice is justice. A half cup of justice is no justice at all. Awarding less than FULL compensation keeps the scales of justice forever out of balance, with the innocent victim on the downside. This is why any "civil justice system" must compensate innocent accident victims for their pain and suffering. If it does not, it cannot be called a "civil JUSTICE system", or even a "CIVIL" system. It is just a "system", nothing more.

March 6, 2010

Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.

elderly hand.jpgLawyers who handle nursing home neglect, negligence and abuse cases in the Syracuse and Central New York area are never surprised to see local nursing homes cited and fined for serious deficiencies. In fact, what is surprising is that more fines and citations are not issued. Bad conditions in nursing homes are pandemic, not only here in Central New York, but all across the United States.

So we at Michaels & Smolak were not surprised to read in yesterday's Post-Standard that three Syracuse-area nursing homes were recently fined for serious deficiencies that harmed patients. And for at least two of them, this was not the first time. The three nursing homes, and their wrongdoings, are:

St. Camillus Health & Rehabilitation Center in Geddes, cited and fined for serving a regular meal to a resident who was supposed to get pureed food. The resident choked, was hospitalized and subsequently died.

Rosewood Heights nursing home at 614 S. Crouse Ave. in Syracuse, cited and fined for failure of its nurses to wash hands, change gloves and take other infection control precautions and because staff members were not administering insulin injections correctly.

Central Park Rehabilitation and Nursing Center, 116 E. Castle St., Syracuse, cited and fined for failing to prevent residents from being exposed to a patient with a suspected case of active tuberculosis.

There are more than 34 million Americans over the age of 65, and approximately 40% of them live in nursing homes or other long-term care facilities. With an aging population that lives longer thanks to modern medicine, nursing homes have become a necessity for many. But nursing home negligence, malpractice, neglect and abuse are never a "necessity", rather, they are a shameful reality.

What causes nursing home abuse and neglect? In a word, "greed". Nursing home owners too often put profit before the well-being of their charges. They cut corners to shed costs to maximize profit. They can get away with this because their "customers" are too frail, frightened or disabled to complain.

Experts say that most abuse goes unreported because many seniors are physically or mentally unable to report it. Sometimes they are terrified of receiving even worse treatment if they report abuse or neglect.

How can you tell whether your elderly parent or grandparent is being neglected, abused, mistreated or is the victim of nursing home malpractice? Some signs and symptoms of abuse and neglect are: unexplained injuries, bruises, cuts, broken bones, torn clothing, bleeding, malnourishment, dehydration, and fear.

If you suspect an elderly relative in a nursing home is the victim of neglect, abuse or nursing home medical malpractice, call a nursing home neglect and medical malpractice lawyer to discuss your suspicions.

March 5, 2010

Central New York Auto Accident Attorney on the SECOND Biggest Mistake People Make When Buying Auto Insurance

insurance policy.jpgAs a Central New York auto accident lawyer, I know first hand what kind of automobile insurance people should buy, but don't. Yesterday I blogged about the BIGGEST MISTAKE people make when choosing auto insurance. Today I am addressing the SECOND BIGGEST mistake they make. What is it? They don't buy "spousal liability coverage". What's that? Let me explain.

Let's say you are taking a road trip with your wife (or husband), your child and a friend. That makes you and three passengers. You make a mistake and cause a car crash (for example, you failed to see a stop sign, or you dosed off at the wheel). Everyone in your car is seriously injured. Of course, everyone is entitled to basic "no-fault" coverage for basic medical costs and lost wages, but that is very limited and can run out quickly when serious injuries occur. But your "liability" auto insurance should pay to compensate everyone in your car for their losses beyond no-fault, including pain and suffering (at least to the policy limit), right? Wrong! Everyone gets compensated EXCEPT YOUR SPOUSE.

Holy mackerel! How come? Because you didn't buy SPOUSAL LIABILITY COVERAGE. You see, traditionally New York barred spouse-against-spouse liability claims. The idea was that a marriage makes one person out of two, so a spouse-on-spouse claim was like suing yourself, which was not acceptable. When that notion fell by the wayside, and New York began allowing spouse-against-spouse personal injury lawsuits, including car accident lawsuits, the auto insurance industry in New York did not keep pace. Automobile insurance policies universally continued to provide an exclusion of coverage for claims brought by one spouse against the other.

Then, a few years ago, New York State passed a law that REQUIRES automobile insurance companies to offer their policyholders the opportunity to purchase spousal liability coverage. But you must REQUEST this additional coverage --- it is not automatically offered. That is because insurance companies don't make a profit off of this coverage. They don't really want you to buy it, which is why you should buy it. It's a great deal: Important protection for the person you love most at low cost. How can you beat that?

Why would anyone want to own car insurance that provides full liability coverage for complete strangers they accidentally injure in a car crash, but zero coverage to one's spouse? Not buying spousal liability insurance is therefore, in my book, the second biggest mistake you can make when you buy motor vehicle insurance.

My advice? Call your insurance agent or broker today and ask about spousal liability insurance.

March 4, 2010

Central New York Car Accident Attorney on The BIGGEST Mistake People Make When Buying Auto Insurance.

insurance claim form.jpgMost people I represent in Central New York auto accident cases have made a big mistake. (No, it's not hiring me, really!). They did not buy the right insurance. I blog on this subject in the hopes that some of my readers will avoid this mistake. Let me explain.

I represent victims of car, truck and motorcycle accidents in Syracuse and Central New York every day. One of the first things I do when I am hired is to carefully examine all the relevant insurance policies. In a typical two-car accident, with no passengers, where my client was not at fault and the other guy was, I look principally at two insurance policies: my client's and the other guy's (there could be more policies applicable, but let's keep this simple).

What am I looking for? In the other guy's policy, I am looking for the liability (also called "bodily injury") policy limit. This tells me the maximum amount of money the other guy's insurance will pay to my injured client for his injuries. The minimum liability coverage in New York is $25,000 per injury and $50,000 per accident. Thus, in a minimum policy, my client would be entitled to a maximum of $25,000. It doesn't matter how hurt he is --- paralyzed, dead, whatever -- $25,000 is the most he can get from that insurer.

So why do I look at my own client's policy? Because this might get us beyond the limit I just talked about. In my client's policy, I am looking principally for SUM (Supplemental Underinsured Motorist) coverage. (I am also looking for something called "APIP" and other insurance coverage, too, but let's keep this simple). What is SUM? It is easiest to explain by way of an example. Say you are struck by a guy with a $25,000 liability policy and you have a $100,000 SUM policy. You get the $25,000 from the other guy and $75,000 from your own insurer, for a total of $100,000. Get it? Sure beats getting stuck with only $25,000, WHICH IS EXACTLY WHAT HAPPENS TO MOST MY CLIENTS. Why? Because they did not purchase SUM coverage above the minimum $25,000.

So that leads to this question: Why don't they buy more SUM coverage? BECAUSE THEY DON'T KNOW ABOUT IT. Their insurance brokers and agents just don't bother telling them about it. Why not? Perhaps because it is very cheap, and insurers don't make a lot of profit selling it. This also explains why you should definitely buy it! Call your insurance agent today and demand it! They have to sell you SUM up to the limit of your own liability policy if you ask for it (e.g., if you have a $100,000 liability policy, you can purchase up to $100,000 in SUM coverage). Protect yourself, and your family (your injured passengers can make a SUM claim on your policy, too). Don't make the biggest mistake most my clients make.

March 1, 2010

Syracuse Trip and Fall Lawyer Explains Why He Just Turned Down a Trip and Fall Case

supermarket.jpgToday a sweet elderly lady met with me in Geneva, New York, with what she described as a "trip and fall" case. I listened sympathetically to her story of how she was hurt, and then told her could not take her case. Why?

Let's start with what she tripped and fell on. She was on her way out of a local supermarket with her adult son when she suddenly tipped on . . . well, she really did not know what it was. Her son, who had been with her, said that when he looked down after her fall, there was a floor mat that was "flipped up at the edge". He deduced that his mother must have tripped over the flipped up edge of the mat. The store should have been more careful with that mat, right?

There are two problems with that:

(1) It is at least as likely that our lady's tripping action caused the carpet edge to flip up rather than the other way around. Since no one saw the rug BEFORE she began to trip, we cannot know whether it was already flipped up or whether our lady's tripping action caused it to flip up.

(2) Even assuming the carpet edge had been "flipped up" and that this made her trip, we don't know how or when the carpet became "flipped up". Another customer might have accidently flipped up the carpet just moments before. The thoughtless customer might not have bothered straightening out the carpet. The supermarket can only be held liable if it had "notice" (knew or should have known) that the carpet was flipped up for a long enough time before the accident to remedy or fix it. Otherwise, the store was not "negligent" in causing the accident.

Fortunately, this lady's injuries were not very significant. I had a feeling she was going to be as good as new within a few months.

Even though I had to reject this nice lady's case, she seemed grateful for the time I spent with her explaining why she did not have a case. Before she came in to see me, she had already called a few lawyers who, after hearing her story, had simply told her they were "too busy" to take the case. Although many lawyers make it a practice to turn down cases in this less-than-honest way, I am proud that at Michaels & Smolak we always give people a REAL reason why we are rejecting their case. And they appreciate it. Sometimes they even send friends or family to us with their cases. Being "real" with people is not only the right thing to do, it also reaps its rewards.