May 2010 Archives

May 30, 2010

Central New York Injury Lawyer Blogging Gives Way (sometimes) to Training.

photo__1501307_michael_bersani[1].jpgBelieve me, New York personal injury lawyers need their stress relief. And for me that means lots of vigorous exercise. Mostly I run and bike. I am training for a few short triathlons (swim-bike-run) this summer. I am participating in the Geneva, New York "Musselman" sprint triathlon as well as the Skaneateles, New York "Skinnyman triathlon race.

I wish I had time to train for the longer, "half-iron" triathlons, but with a wife, two kids, and a very busy personal injury law and medical malpractice New York law practice, I just don't. I can get out for those 30-mile rides during the week, and for those 40 or 50 mile rides on the weekend (and I slip in a few 6-mile runs a week, and an occasional swim, too), but I just don't have time for more. My family is important to me, so, gosh, I want to spend time with them, too!

This training has been eating into my blogging time, though. So far, I am happy to report (I think) that none of my readers is experiencing withdrawal symptoms!

Besides the blogging and the training, guess what --- I have law work to do at the office! I am preparing for two trials this fall (yes - I start that far ahead of the trial date!). I am also keeping on top of my other accident cases, and am preparing my annual "New York Municipal Liability" update --- a yearly presentation I give to other New York personal injury lawyers around the State to fill them in on changes in the law regarding suits against New York cities, counties, villages, towns and the State of New York itself.

So if my blogging falls short a bit this summer, I hope my readers will forgive me (and that they don't thank me!).

May 27, 2010

Important Safety Tip: Don't Drive a tractor Trailer While Watching Porn!

Thumbnail image for tractor trailer.jpgO.K., the headline is funny, but the story is very sad. How sad? How about a one- and two- year old who are now motherless.

Today news sources report that the driver of a tractor trailer, who was streaming porn on his laptop while he drove his rig into the back of a disabled car on the New York State Thruway (near Pembroke, about 20 miles east of Buffalo), pleaded guilty to second-degree manslaughter. The disabled vehicle had run into a deer, and was waiting for a tow truck. Its driver, a mother of the one- and three- year olds, was killed by the impact from the tractor trailer.

Sure, watching porn while driving is what made the headlines. (Sex sells, even when it kills!). But this driver was guilty of other important violations as well. 395.3 of the Federal Motor Carrier Safety Administration regulations mandates a driving/rest ratio for "commercial carriers" (essentially, tractor trailer drivers). The hours a commercial driver can drive within periods of time are strictly limited. Here, the driver didn't get the required rest. He had only 4 hours of sleep in a 27-hour period. Worse still, the driver had "cooked the books" (actually, his driver's "log") in an attempt to dupe the authorities into believing he had followed the required rest/drive ratios. The authorities unearthed his lies by looking beyond his self-recorded "log", and into his E-ZPass records and the GPS tracking for his 18-wheeler.

The commercial carrier driver's log I mentioned above is mandated by ยง395.8 of the Federal Motor Carrier Safety Administration regulations. And it is often a treasure-trove of important information for people like me who sue commercial truck drivers and their commercial carrier employers for truck accidents causing personal injuries in New York State. In the log, the driver has to state whether he was "on" or "off" duty, whether he was driving, whether he was in the "sleeper booth", etc., as well as the name of the city, town or village, etc. where he started, stopped or rested. The total miles during each leg of the trip are also recorded. I personally have spent hours scouring these log entries - not exciting work, but very revealing --- in my New York tractor-trailer accident cases.

So far I have never found an entry that says, "driving while watching porn". No one's that honest, and let's hope none (except this one) is stupid enough to try that.

May 25, 2010

Bicyclist Injured By Hit-and-Run Motorist is Entitled to Insurance Coverage.

bicyclists racing.jpgWhen I blogged yesterday about the Syracuse New York bicycle Accident case in which the bicyclist was abandoned at the scene with severe brain damage by a hit-and-run driver, I forgot to mention something that all New York bicyclists should keep in mind. No, it is not another safety tip. It is an insurance tip. Here me out Central New York cyclists!

The driver who struck our cyclist and left him lying there in the road obviously will not be providing auto insurance coverage to him. That's called a "hit-and-run", and of course, it's a crime. But the fact that it's a crime doesn't help our injured cyclist. What would help him is some insurance coverage for his bicycle accident. But where can he find some? Here's where: If our cyclist owns a car, or lives with a relative who owns a car, the auto insurance for that car will provide him with coverage for the hit-and-run collision. And even if he does not own a car, or live with a relative he owns one, a State-run fund called the "Motor Vehicle Accident Indemnification Corporation" ("MVAIC") will provide similar coverage.

There are two types of coverage that will be provided either by the auto insurance or (if there is none) MVAIC: (1) no-fault coverage (up to $50,000 in medical expenses and lost wages, and (2) Supplemental Uninsured Motorist Coverage ( in the law business we just call it "SUM" coverage). SUM coverage provides a minimum of $25,000 to this injured bicyclist to compensate his pain and suffering as well as any medical expenses and lost wages beyond what no-fault covers.

If you are a cyclist, is a good idea to purchase additional SUM coverage. You can purchase SUM coverage up to a level that matches your liability coverage. So, for example, if you are covered up to $100,000 for injuries you cause to others (called" bodily injury" insurance), you can purchase that same amount in SUM coverage to protect yourself if you get hit by an uninsured (or underinsured) vehicle. It is a bargain, too --- purchasing the additional coverage will raise your premiums by only a few dollars a month, and will provide you will much needed additional protection if you suffer a serious injury through the fault of an uninsured or underinsured driver.

This poor cyclist is a good example of why you should purchase the maximum amount of SUM coverage. He has a serious brain injury. He will "blow through" his $50,000 of no-fault insurance in a heartbeat. If he is laid up and can't work for a significant period of time, then the $25,000 SUM coverage won't be nearly enough to pay his bills. If he had any additional SUM coverage, it would come to his rescue.

Cyclists: Ask your insurance agent about maximizing your SUM coverage! You never know when you will need it.

May 25, 2010

Mom Gives Birth While Driving --- Now THAT"S "Distracted Driving"!

Thumbnail image for texting and driving.jpegI have written several blog posts about "distracted driving" - motorists driving while texting and driving while talking on their cell phones. (See those posts by clicking here, here, here and here). As I said in those blog posts, distracted driving is quickly becoming a leading cause of motor vehicle accidents, and of auto injury lawsuits, not only in Central New York and Syracuse, but all over the U.S. But this latest story brings "distracted driving" to a new level:

Last Wednesday, an expecting Minnesota mother felt labor pains, jumped in her car, picked up the father (who does not drive because he is prone to seizures) at work, and was heading straight to the hospital when the baby --- well ---- just "slipped out". She GAVE BIRTH while driving herself to the hospital! The baby's father helped by steering the car from the passenger's seat. After birth, the mother had the father steer the car, again from the passenger seat, to the hospital. It appears that mom and newborn both checked out fine.

Now that's what I call distracted driving -- both by mom and dad!

May 24, 2010

Hit-and-Run Driver Leaves Syracuse Cyclist with Severe Head Injury

bicyclists racing.jpgIn this great weather, I have been out on my bike almost every day for the last week - averaging about 30 miles a day, too. Not bad for a lawyer with a booming New York personal injury law practice as well as a wife and two kids.

I know cycling can be dangerous, but I love it, and it keeps me fit. When I am out on the road, admiring the stunning Central New York and Finger Lakes countryside, I do have, from time to time, some "scares" - a car that passes a little too close, a dog that runs out at me and forces me out into the middle of the road, or just dumb stuff I do to myself - like hitting a deep pothole that throws me off a bit.

From my bicycle accident cases, I get an up-close view of how cyclists can get injured through no fault of their own. And this gives me food for thought when I am out on the road.

And then there is the newspaper. That can be scary to read if you are a cyclist. Every so often I read about the fate of a fellow cyclist who caught a bad break. Today I read in the Syracuse Post-Standard that a hit-and-run driver struck a bicyclist this afternoon in a part of Syracuse known as "Skunk City", leaving him with a severe head injury and in critical condition (at Upstate).

As a fellow cyclist, I wish the victim a speedy recovery. And as a justice-hungry lawyer, I hope they catch the b___ who hit him and left him lying on the road like road kill. Judging from the paint the vehicle left on the bike, it appears to have been grey or silver, and it should have frontal damage. Police are asking that anyone with information call 442-5151 to report it.

May 23, 2010

Motorcycle Miracle Man Crashes and Lands in Back Seat of Convertible

Thumbnail image for motorcycle riders.jpgWhen I read the Syracuse Post Standard's report of this recent Central New York motorcycle accident, I thought perhaps I had accidentally jumped to the movie review section of the paper and was reading about a slapstick comedy. The accident happened on Route 31 in Lakeport, New York. The motorcyclist collided into the back of a Chevrolet Cavalier convertible stopped and waiting to turn left at the intersection with Coulter Cove Road. Upon impact, the motorcyclist flew off his bike and landed in the backseat of the convertible. The driver of the convertible was quoted as saying, "the next thing you know there was this big crash, and I felt something on the back of my head". Her daughter, the passenger, then said, "mom, there's something in the backseat". When the driver turned around, she saw the motorcyclist lying in the back seat with his feet on her head.

I have handled a lot of Central New York motorcycle accident cases, but never one like that! Sounds more like a cartoon than an actual accident. I guess you can find humor in anything, even in motorcycle accidents, as long as no one is seriously injured.

What caused the motorcycle to rear-end the car? The biker was adjusting his bike's mirror and didn't notice the stopped vehicle. Lesson to be learned: Adjust your mirror BEFORE you start driving your motorcycle. Never be distracted behind the wheel of a car, or the handlebars of your bike.

May 21, 2010

Common Misconceptions about New York Personal Injury Cases, Part IV: "I Got Hurt in a Car Accident in New York and It Was the Other Guy's Fault So I Must Have a Good Case"

Thumbnail image for carcrash.jpgBeing hurt in a New York car accident when it's not your fault doesn't necessarily mean you have a good case. You have to be "seriously injured" to get compensation from the at-fault driver's insurance. Otherwise, all you get is your no-fault benefits (up to a maximum of $50,000 in medical bills and lost wages combined), which comes from your own insurance, even if you were not at fault. (That's why it's called "no-fault"!)

My many years of representing Central New York car accident victims have taught me one simple lesson: New York No-Fault Law sucks! It's unfair and outdated and ends up screwing way too many Syracuse and Central New York auto accident victims. My partners and I can get around the limitations of the No-Fault Law as well as any New York auto injury attorneys, but sometimes even the best lawyers can't lawyer-their-way-past the worst laws. Read what blogger Eric Turkewitz has to say about New York's unfair No-Fault Law.

Bad, yes, but it's the law (hopefully not for too much longer - there is a bill in the works to change it). Although you might think you are very hurt, and I might think you are very hurt, and you ARE by almost anyone's definition very hurt, you still might not qualify as "seriously injured" under New York's strict No-Fault Law. This is especially true for "soft tissue" and "whiplash" type injuries. Unless you are out of work for more than 90 days, these kinds of injuries usually have to be permanent to qualify as "serious", and you still might lose your case if your doctor can't point to any "objective medical findings" proving that the car accident caused the serious injury, and that it causes a significant limitation in the use of your neck, back, etc. (Even though the No-Fault Statute itself says nothing about "objective findings", New York's courts have added that requirement.)

This "objective finding" requirement is problematic. Often car collisions cause pre-existing "degenerative" (caused by the aging process) spine conditions, that were totally pain free, to become painful. In other words the "injury" was, in a sense, already there, in your spine, due to the natural aging process, but was causing no pain. The car crash "activates" the disc condition, causing pain, sometimes permanent pain. But how do you prove the car crash, rather than the pre-existing condition, caused your pain syndrome with "objective medical findings"? Sometimes there is no visible or other objective thing a doctor can point to. The only difference between your pre-accident spine and your post-accident spine is PAIN, and pain is SUBJECTIVE, not OBJECTIVE.

A good motor vehicle accident lawyer will try like hell to get the doctor to show him some "objective finding" that the collision caused the injury, but it can't always be done.

Long story short: If you are only a little hurt, you probably have no car accident case against the at-fault driver, but even if you are very hurt, you may have no case under New York's car accident laws. See a New York car accident lawyer to find out whether you may qualify.

May 20, 2010

Central New York Personal Injury Lawyer: "Why I Want to Sue BP".

bp.jpgAs a mere local Central New York personal injury attorney, I really didn't want to get into commenting on the national disaster that is the ongoing Gulf of Mexico BP oil "spill". (I put "spill" in quotes because this word, bantered about by BP and echoed by news media, hardly seems appropriate. It is more like an underwater oil "volcano". Take a look at the video of it here).

I don't even want to comment about the "perfect storm" combination of cascading mistakes that led to the "spill" itself. After all, as an accident lawyer, I know all too well that big-company accidents, even cascading series of them, are all too common (because corporate cost-cutting carelessness is all too common). Nothing new here. BP, join the club of about a zillion other big corporations who have injured countless Americans with their crappy defective products!

And, heck, I don't even feel like commenting about BP's deliberately underestimating the extent of the "spill". Corporate lies are just too common to push my buttons.

So what do I want to comment about? Glad you asked. Excuse my French, but what really pisses me off, what has my fingers pounding on this key board right now, is that BP HAD NO PLAN TO DEAL WITH THIS KIND OF A LEAK, NO PLAN AT ALL TO STOP IT IF IT HAPPENED!!! This hole they created at the bottom of the sea, which is spewing death to the Gulf, apparently can't be plugged! The latest brilliant idea?: Throw "heavy mud" at it, and if that doesn't work, knotted rope, pieces of tires and golf balls,

Golf balls? Come on! Do you think if BP had put as much money into designing a "what-if" safety device for dealing with this leak as they spent on designing drilling techniques for reaching deep sea oil they could have developed a stop-gap? Of course! But spending the money to GET the oil made them a buck, while spending the money to STOP the oil from reaping an environmental disaster didn't. It's that simple.

So how do we motivate corporations to develop safety devices if the profit motive isn't there? Two answers: (1) better and stronger government regulation and (2) lawsuits. Lawsuits make them "pay" for accidents, and therefore motivate them to be safe.

And I would just love to sue these guys. Come on, somebody, bring me a case against BP! Punitive damages? No question. Maybe as the oily mess makes its way up the east coast (as some are now predicting, via the Keys), there will be some mom-and-pop beach hotel (I love representing the little guy) on the shores of Long Island that will go bust and want to bring a New York lawsuit to recover their losses.

May 17, 2010

Common Misconceptions about New York Personal Injury Cases, Part III: "I Slipped (or Tripped) and Fell in the (Parking Lot, Store Aisle . . . Wherever) and Was Injured, So I Must Have a Good Case Against the Owner of (the Parking Lot, Store, etc.)."

Thumbnail image for Thumbnail image for banana peel.jpgLet's clear this up from the get-go: The owner of the property where you slipped or tripped and fell is NOT AUTOMATICALLY liable for your fall and resulting injuries. As the plaintiff in a New York premises liability lawsuit, you have the burden of proving that the owner of the property maintained the property in an UNREASONABLY UNSAFE CONDITION.

Ok, what does THAT mean? Several things: First, you have to show that the owner could have done something to avoid your getting injured on his property. And the owner had to have time to do it. Let's take a supermarket, for example. Sure, the supermarket makes a lot of money. But it is not God. It cannot predict that another shopper is going to drop a jar of apple sauce in the "fruits and vegetable" aisle 2 minutes before you happen to stroll down looking for a can of kidney beans. So when you slip and fall on the apple sauce, no jury on God's earth is going to hold the supermarket liable. In fact, they might find it is your entire fault for not watching where you are going.

On the other hand, if you can somehow prove that the smashed apple-sauce jar was lying there for an hour, a jury is likely to be on your side. With all that money the supermarket is making, it sure ought to have a few employees meandering up and down those aisles every half-an-hour or so looking for customer spills.

Same goes for parking lots. If a sudden freeze in temperatures causes black ice to form, how can you expect them to have time to (1) notice the slippery condition and (2) salt the parking lot? That takes some time, doesn't it? That's why, if the ice was very recently formed, you don't. have a prayerr at trial. On the other hand, if the black ice was there for an hour or so during business hours, you've got a chance at trial. Why didn't they get out there and salt during that hour?! It's really that simple.

One more thing: If the owner (or its employees) actually CREATED the hazard you tripped or slipped on, you will have an easier time in court. That's because if they created the danger they obviously don't need time to notice it. They should have noticed it as soon as they created it! Supermarket example: If they mopped the floors with dirty, greasy water, leaving a film of grease on the floor that caused you to slip and fall, the supermarket is liable. It was negligence from the get-go. They should have used clean, soapy water, and since they created the hazard, they should have noticed it right away.

Bottom line: You don't necessarily have a good slip-and-fall case or trip-and-fall case just because you slipped or tripped and fell on somebody's property. You still have to show the property owner was somehow negligent.

May 15, 2010

Common Misconceptions about New York Personal Injury Cases, Part I: "I Almost Died in That Accident, So I Must Be Entitled To a Lot of Money, Right?"

flowerongrave.jpgThere are many common misperceptions about New York personal injury lawsuits. I will be discussing these in my blog posts over the next few days. One of the most common mistaken ideas is that if you "are almost killed" by someone's negligence, you must have a case. This is usually wrong. Usually, when a client says to me "I almost died in that accident", my response is, "then you ALMOST had a case"! Let me explain by way of examples.

Let's say you were the victim of a medical mistake during surgery. Your rushed surgeon inadvertently and unknowingly cut an artery and, as a result, you bled internally for quite a while before anyone at that hospital realized it. As you were on death's door, they figured it out, opened you up, and stymied the bleeding. End result: You spent and extra week in the hospital, but otherwise suffered no additional harm.

You call up a Central New York medical malpractice lawyer (hopefully this one!) and tell him you want to bring a New York medical malpractice lawsuit. You are angry that the doctor was so careless that he almost killed you. Besides, he never even apologized! Do you have a case? No, at least not one worth bringing. In New York (and in every other State as far as I know), "almost dying" because of medical malpractice or other negligence is not worth a dime in court, or in settlement. You are only allowed compensation for what you ACTUALLY SUFFERED, not for what you "almost" suffered. Since you were completely unaware you were "dying" at the time, you did not suffer even from the fear of death, much less from death itself.

Now let's take another example. Let's say you are on a motorcycle and a tractor trailer tries to pass another car as it comes straight at you. The last thing you remember before waking up in the hospital is the terror, the pure animal fear, of death. Now, is that worth something in court?

Yes. Fear is a type of emotional suffering that is, in fact, compensable in New York (and in all other states as far as I know) if accompanied by physical harm. But it is worth a lot less than you might think. Most juries won't give much for fear. They prefer to compensate injuries they can actually SEE (and they will probably have plenty to see in a tractor-trailer-motorcycle crash case like this one).

There is at least one type of case where juries are sometimes very generous in compensating fear of death. That is where you actually die, but had no or little other suffering before death other than fear. In car crash cases, New York personal injury lawyers call this a "pre-impact terror" case. In the motorcycle example above, if you had never woken up, a jury might give your surviving family a lot of money for your "pre-impact terror". Why? Because you experienced no other pain or suffering, and they sure want to give your family something for what you went through.

So remember, if you "almost died", and are not otherwise injured, you probably have no case. But you have something much more valuable. Your life! So count your blessings.

May 15, 2010

Common Misconceptions about New York Personal Injury Cases, Part II: "If I Complain about My Injury A lot to My Doctor And to The Jury, I Will Get More Compensation"

Thumbnail image for sad wife.jpgTake two clients with the same injury, say a cervical disk herniation. They are both in pain day and night. They can't sleep. They have a hard time doing what they used to do during the day. They both try nerve block injections but get only limited, temporary relief. They both get neck fusion surgery and now have limited rotation of the neck, but still experience pain every day. There is only one difference between the two: Client A complains bitterly to his doctor about the pain and convinces his doctor to take him out of work. Client B sucks it up and tells his doctor he really wants a normal life, and wants to try to keep working. Who has a better personal injury case, client A or client B?

A few (fortunately, very few) of my Central New York personal injury clients believe it is client A because he has "proved" how much he is suffering by having his doctor take him out of work, and by filling up his medical file with complaints of pain. But actually client B may have a better case. In any event, I would much rather represent client B. Why?

Juries hate whiners. In fact, everyone does. Juries often assume they are milking the system, exaggerating their injuries to bring in a big verdict at trial. Conversely, juries, and people generally, love the fighter, the survivor, the guy who doesn't give up. When such people testify in their own personal injury trial, they don't give the impression that they are in it for the money. They have done everything they can to try to overcome their limitations, and are now just seeking fair compensation for what they have been unable to overcome. And juries like them and reward them for their I-can-lick-this-thing attitude.

Jury disdain for the whiner is so pervasive that any personal injury lawyer worth his salt is wary even of having the plaintiff testify about his own pain and suffering. It is hard to have the injured victim testify about his own pain and suffering without making him look like a whiner. So good personal injury lawyers try, to the extent possible, to have others testify, from the heart, and from their observations, about the victim's pain and suffering. Family members, friends and co-workers give much more powerful testimony about the victim's pain and suffering than the victim himself. "He used to play with our kids, and now he can only watches, and he cries about it in bed at night" is much more powerful coming from the victim's wife than from the victim.

So if you are injured, do everything you can to overcome your injury. Fight it! And then we will ask the jury to compensate you for what you could not overcome. You are likely to get much better results in court, and in life, if you try your hardest to overcome the obstacles life throws in your way.

May 13, 2010

Finger Lakes Boating Accident Lawyer Discusses Staten Island Ferry Crash

staten island ferry.jpgAt Michaels & Smolak, we are "joined at the hip" to the Finger Lakes. Our main law office is in Auburn, near the shores of Owasco Lake. One of our lawyers, Lee Michaels, lives on Skaneateles Lake. I live in Geneva, on Seneca Lake. Since we are personal injury lawyers, and work in the Finger Lakes area, it is no surprise that we are the Finger Lakes boating accident lawyers of choice for many boating accident victims.. We know all too well the horrendous injuries that Central New York boating accidents can cause. A few years ago, we got a large settlement for a woman who lost her leg to a boat propeller.

Having lots of experience in boating accident lawsuits, I read with interest, and dismay, about last week's Staten Island Ferry crash. Imagine the fear passengers experienced as the ferry approached the docking area without slowing down! Those who had time to react scurried toward the back of the boat. This week, the first lawsuit stemming from the boat crash was filed.

A boating accident like this has two possible causes: Pilot inattention or mechanical failure. Here mechanical failure appears to be the culprit. The boat's throttle failed to engage, making it impossible for the pilot to apply the reverse thrust, which is how this boat is slowed down for docking. Investigators still haven't figured out what caused the malfunction.

So will these boating crash victims win their New York boating injury lawsuit? Can't the boat owner simply argue that, hey, it wasn't our fault; it was a mechanical breakdown, not pilot error?

I don't think that argument will prevail. The boat owner is responsible not only for how its pilot navigates the boat, but also for making sure the boat is properly maintained. I'll bet that when plaintiffs' boating accident lawyers investigate the maintenance records, they will find gaps or negligence in failing to carefully inspect and maintain the motor.

Even if the throttle were brand new, however, there would appear to be a products liability lawsuit to be brought against the throttle manufacturer.

Bottom line: Pure accidents are rare. Most "accidents", including boating accidents, are caused by SOMEONE'S carelessness. In this case, my prediction is that it was the maintenance crew's negligence.

In any event, I certainly hope these seriously injured boating accident victims get some compensation from someone. After all, they were completely innocent passengers, and had a right to expect safe passage.

May 10, 2010

Surveillance Cameras Help Syracuse Slip-and-Fall Lawyers Prove Stores Are Liable for Personal Injuries.

Thumbnail image for banana peel.jpgSometime ago I blogged about how the omnipresence of cell phones with cameras has been a game-changer for many Central New York and Syracuse accident victims. The evidence of the at-fault person's or corporation's negligence can be "snapped" right at the scene with the cell phone camera. This is important because often the evidence disappears within hours, for example, where you slip and fall on an unplowed, unsalted walkway in a Central New York winter.

Another game-changer for Syracuse and Central New York personal injury cases (and for such cases everywhere) is the omnipresence of surveillance videos. Now almost all major stores, including supermarkets, have surveillance cameras filming in almost every nook and cranny.

How does this help New York personal injury attorneys prove liability in personal injury lawsuits? Here's an example. A woman slips and falls in the produce section of a major Syracuse supermarket. Turns out she slipped on a piece of tomato.

Under New York slip-and-fall law, the store is only liable to the injured customer if the tomato had been there for a significant period of time so that the store employees should have noticed it on their regular inspections of the produce department. This is because a store cannot be held liable for the carelessness of a customer dropping a tomato just a minute before the next customer slipped and fell on it. The store can normally be liable only if it noticed the tomato on the floor and did nothing about it, or if it failed to inspect the produce department on a regular basis to look for fallen fruit and vegetables. In other words, New York slip-and-fall law gives the store a "grace period" to find and clean dangerous spills, and vegetable or fruit droppings, before the store can be held legally responsible for the slip-and-fall accident.

In the old days, this was often hard to prove ---- how do you prove how long a piece of tomato you slipped on was on the floor?

Enter the age of surveillance videos. Now when an injured client, say a Syracuse client, calls to report she has been seriously injured in a slip-and-fall in a Syracuse grocery store, the Syracuse slip-and-fall lawyer writes the store immediately and demands that it preserve all surveillance videos of the produce department for the day in question. (And by the way, the store had better comply with the request, or a judge at the eventual trial might sanction the store, for example, by instructing the jury that it can infer the store had something to hide when it destroyed the videos). When the Syracuse personal injury lawyer eventually views the preserved surveillance video, it doesn't show when the tomato fell to the floor, but it clearly shows that for the 3 hours before the accident, no store employees inspected the produce area for fallen fruit and vegetables. It also clearly shows that no customers had reached into the tomato basket for an hour and a half before the slip-and-fall. Perfect proof? No, but pretty darn good. It goes a long way toward proving that the tomato had to have been on the floor for at least an hour and a half --- well beyond the "grace period" --- and that the store employees were negligent in failing to inspect the area for fallen fruit and vegetables.

So as a dedicated Syracuse New York slip-and-fall lawyer, I want to personally thank all our local stores for installing surveillance cameras. Sure, they did it to catch us customers stealing, but they unwittingly also sometimes catch themselves failing to protect us from avoidable accidents.

May 9, 2010

Syracuse and Central New York Accident Lawyer on Frivolous Insurance Defenses

courtroom.jpgAs a Syracuse and Central New York accident lawyer, I have had loads of experience dealing with car insurance companies and their lawyers. Here's another example of how insurance companies and their lawyers take frivolous positions in Court that cost you, the taxpayer, money.

My client hired me to bring a Central New York car accident claim on his behalf. Here's how his Cayuga County car accident happened: He was a passenger in his friend's car. The friend had stopped at an intersection and was waiting for on-coming traffic to clear so he could turn left. His left blinker was on. Then, -- BAM - the car was struck from behind. The driver who rear-ended them admitted to the police right on the scene that he was reading a map while driving so he did not see the stopped car.

After the insurance company refused to settle for a fair amount, I sued the rear-ending driver and his employer (he was on the job when this happened, so the employer is vicariously liable for his negligence). Since the only real disputed issue was what my clients' extensive injuries were worth (no question about whose fault it was, right?), I made a "summary judgment motion", that is, I asked the judge to decide, without the need for a jury trial, that the rear-ending driver was solely responsible for the collision. I made this request to the judge right after I sued the case out, and before any "depositions". Depositions are where the lawyers get to ask the parties questions under oath about how the accident happened so they can try to prove their case, or their defense to the case. But I figured, why should we bother with all that when there was so clearly no issue of whose fault it was?

But the insurance company lawyers did what they do far too often. They responded to my motion by taking a frivolous position. They argued that my request should be denied because they needed "discovery" first. Specifically, they claimed they needed to depose my client (ask him questions under oath) to see if he might have done something to cause the rear-end collision.

Now let's get this straight: My client, a passenger in a stopped car waiting to turn left, might have done something to cause the map-reading driver to ram his car into the car my client was seated in? Yup, that was their position, I kid you not!

Fortunately, I found several cases to support my request for the judge to rule in my client's favor, even at such an early stage of the case. The judges in those other cases realized that conducting depositions was a waste of time when the defendant was so clearly at fault. The judge in my case followed those other cases, and ruled in my client's favor. But I could not help but think of the waste of the judge's time, his clerk's time, his secretary's time, in considering and deciding an issue that the insurance company and its lawyers should have just stipulated to.

So when people talk about "frivolous lawsuits" clogging our courts and costing taxpayers money, yes, it makes me mad, because I know from my years of experience as a Central New York personal injury lawyer that it is more often the insurance companies and their lawyers that clog our court system with frivolous defenses.

May 7, 2010

Syracuse Medical Malpractice Lawyers' Verdict Applauded

Thumbnail image for surgeon.jpgNew York Medical malpractice cases, like medical malpractice cases everywhere, are tough. Juries like doctors. They feel sorry for doctors who are sued. They don't want to tell physicians they were "negligent". Doctors' insurance company lawyers fight like hell to disparage the patient in front of the jury, to make the patient seem untrustworthy, and to paint their client-doctor as a helpless, honest victim of a greedy medical malpractice lawyer. These strategies sometimes work. Even when juries think a doctor made a mistake, or was careless, they sometimes refuse to find them liable for the injuries they carelessly caused. They justify such verdicts by saying to themselves things like, "gee, that doctor didn't MEAN to hurt the patient". Statistically, the doctor beats the patient in most New York medical malpractice lawsuits that go trial.

So when a New York medical malpractice lawyer brings a medical malpractice lawsuit all the way to trial, and wins, it is cause for celebration (not for the doctor or her insurance carrier, of course, but for the patient and her lawyer).

Today we celebrate the victory of our friends and fellow Syracuse medical malpractice attorneys David Howe and Michael Porter who, on May 7, won for their client a thumbs-up verdict in a Syracuse medical malpractice lawsuit. The patient's surgeon had committed malpractice by negligently severing nerves in her ankles during a tarsal tunnel syndrome surgery several years ago. This caused significant limitation in her ability to move her feet, as well as permanent and severe pain to her feet and ankles, and eventually caused her to lose her job. The Syracuse jury awarded the patient $678,000 in compensation.

Our hats go off to Syracuse medical malpractice lawyers Michael Porter and David Howe.

May 5, 2010

Syracuse Construction Worker Fall in Hole Demonstrates Special New York Falling Construction Worker Law

Thumbnail image for constructionworkeronroof.jpgConstruction season is in high gear again, and that, of course, means more construction accidents. Yesterday the Syracuse Post Standard reported that a construction worker fell into a 12-foot hole, which was to be the foundation for a new single-family home, on a construction site job on Seymour Street. The worker apparently suffered some kind of head injury.

I wish this worker a speedy recovery. But when I read cases like this one, and after I feel sorry for the victim, I can't help but "think like a lawyer". As a Syracuse New York construction lawyer, I see this accident as proof of why, many dozens of years ago, New York State's wise legislature passed a law known as Labor Law section 240. This statute may help this unfortunate worker today to get the financial compensation he may need.

Under Labor Law 240 a construction worker who falls from a height, including from ground level into a hole, generally has a New York personal injury claim against the owner of the property, the general contractor, and perhaps others as well, for failure to, among other things, cover or guard the hole to prevent the fall. The worker does not even have to prove that anyone was "at fault" or careless or negligent. The only thing he has to prove, generally, is that he fell because a "safety device" (such as a barricade or other means of preventing the fall) was not provided. Even if the worker himself was largely to blame for his own fall, he still wins his New York construction accident lawsuit if the proper safety devices were not provided or failed. The law was designed to give extra protection to construction workers who risk their life and health everyday by working from heights or in areas where they can fall and be seriously injured or killed.

There may be a problem with this particular construction accident case, though. It involves the construction of a single-family home. Labor Law 240 generally exempts from liability owners of one or two-family homes, as long as they are really going to use the home as a home and not for commercial purposes.

Also, the construction worker cannot sue his own employer because the Workers' Compensation Law bars him from doing that. But if the general contractor was some other company different from his own employer, then he can bring a Labor Law 240 claim against the general contractor.

Why would this worker want to bring a New York personal injury claim at all? Won't workers' compensation cover all his injuries? No. Workers' Compensation will pay him for only 60% of his lost wages, as well as all his medical bills, but that's all. If he's out of work for a long while, what does he do about that 40% reduction in pay? How will he pay his bills? Unless he brings a construction accident claim against someone, such as the general contractor under Labor Law 240, then he just has to "suck it up". But if he brings his Syracuse construction accident case and wins, the liability insurance will end up paying not only ALL his wages, but will also compensate him for his pain and suffering.

May 4, 2010

Central New York Injury Lawyer on Compensation for Wrongful Convictions

jail.jpgEighteen years is a long time, especially if you spend them in jail for a crime you did not commit. Just ask Frank Sterling of Rochester, New York. Local news sources report that DNA evidence recently cleared Mr. Sterling of murder. He had spent 18 long, hard, bitter years in jail for killing an elderly neighbor as she out for a walk on an old train track trail in Rochester. Only problem is he didn't. Someone else did. But Mr. Sterling finally walked away a free man this past Wednesday.

How did he get convicted? Under heavy interrogation, Sterling made a mistake that too many innocent men make --- he confessed. Why? To end the interrogation. He told his interrogators what they wanted to hear so they would stop. Sounds silly to people who have never been under that kind of grueling pressure for hour upon hour. But it makes sense to the accused at the time. Lengthy, tough interrogations do something to the human psyche. Sometimes people crack. Mr. Sterling cracked. Even though Mr. Sterling almost immediately disavowed his "confession", it turned out to be the nail in his coffin at trial.

And the REAL murderer? Turns out he got away with it, but then killed a four-year-old girl six years later, and that time he got caught. He eventually confessed to both killings.

Does this poor Mr. Sterling have a legal remedy in New York to get compensation for all that time he served in jail on a false conviction? Yes. It is called Court of Claims Act section 8-b. This little gem of legislation proves that New York State has a soul. It became law because our legislatures thought the State had a "moral obligation" to compensate innocent people convicted and imprisoned. Under this Statute, Mr. Sterling may file a claim against the State of New York to compensate him for his 17 years of hell. All he has to prove is that he was innocent, and that "he did not by his own conduct bring about the conviction". We hope Mr. Sterling finds a competent New York wrongful conviction attorney to steer him through the process.

Our hats go off to the Innocent Project for undoing another wrongful conviction with DNA evidence. And our hearts, and best wishes, go out to Mr. Sterling, who is as deserving of compensation as anyone can be.

May 2, 2010

Recent Syracuse Bicycle Accident Demonstrates Why Motorists Are Usually At Fault for Bike-on-Car Collisions

bicyclists racing.jpgIt's to be expected. With the good weather comes bicycling, and with bicycling comes bike accidents. Today Syracuse police are investigating an accident at the intersection of Sumner and Euclid avenues (not far from where I grew up!) between a bicyclist and, of all people, a Syracuse City cop driving a police car. Thankfully, the bicyclist, a Syracuse University student, suffered only minor injuries. She was treated and promptly released from Upstate University Hospital.

This accident demonstrates some interesting principles. Statistically, most bike-on-car collisions are the motorist's fault. Do you think this accident might have been the police officer's fault? Let's see what happened here, and then you decide.

The police officer was heading west on Euclid Ave, and was waiting to turn left on Sumner, when a Centro bus heading in the opposite direction stopped and waved the officer through the intersection. The officer started his turn, but neither he, nor the bus driver, had observed the bicyclist traveling alongside the bus just to its right in a bike path. As the bike entered the intersection, the bike hit the police car's passenger side as the car made its left turn in front of the bike.

So who's at fault? I believe it was the cop's. He violated the bicycle rider's right-of-way. She was going straight through the intersection, as she had every right to do, and the cop was turing left, and thus was obliged to wait for her to pass.

This case demonstrates the most common cause of bike-on-car accidents; motorists failing to observe bicyclists. As a Syracuse New York bicycle accident attorney, I handle a lot of these kinds of bike-on-car collisions, and from my experience I can tell you this: There is usually no good excuse for a driver of a car failing to observe a bicyclist. A motorist is duty-bound to observe other vehicles, including bicycles, and to avoid crashing into them. Here, the cop had a duty to yield to the bike, and it is generally no excuse that he failed to she her.

He might argue, though, that the bus blocked his view of the bike until it was too late. Maybe a jury would buy that, depending on the evidence. But I doubt it.

Now here's the $10,000 question: Think that cop will issue himself a ticket?

May 1, 2010

Texting and Cell-phoning While Driving in Syracuse New York Leads to Many Tickets and Possible Syracuse Car Accident Lawsuits

Thumbnail image for texting and driving.jpegI recently blogged about an upcoming federally funded crackdown on cell-phoning and texting while driving that was to take place in Syracuse. Well, the first stage of the crackdown happened, and many motorists were caught in the police net.

The Syracuse Post Standard reports that local law enforcement agents issued a total of more than 2,000 tickets during the 10-day (April 8 through 18) texting-and-phoning-while-driving ticket-issuing spree. The penalty if you plead guilty? Up to a $150 fine plus an $80 surcharge, for a grand total of $230.

Watch out! There are two more texting and phoning-while driving crackdowns scheduled for the last week of July and starting October 7.

And by the way, if you are driving while texting or using your cell phone, and the worst thing that happens to you is a ticket with a fine, you are pretty lucky. Imagine the guilt, shame, and possible financial peril you will suffer if you end up striking a pedestrian or crashing into another vehicle and causing serious injury or death while using your phone or while texting? I can almost guaranty you this: You will be sued by a Syracuse New York car accident lawyer. And guess what? That lawyer will likely have a slam dunk case against you! You'd better check your insurance coverage and make sure there is plenty of it if you plan to continue using your phone or texting while driving.