Central New York Injury Lawyer Blog

The Syracuse Post Standard reported today that an Auburn, New York police officer suffered muscle wounds and injuries requiring stitches after a pit bull attacked him Sunday night. The officer had walked up a driveway on East Genesee Street to investigate some smoke coming from the back (it turned out to be a pit fire), when a large pit bull charged at him from the porch with such fury that it broke free of its tether. The dog sunk its teeth into the officer's right arm and right upper leg before the dog's "dog sitter" pulled the dog free of him.

After years of handling Central New York dog bite cases, I read newspaper articles like this somewhat differently than most people. I "analyze" the case from a "liability" perspective as I read. It's a professional hazard!

But now that I am on the topic, let's talk about the liability issues in this case. Is the dog owner, who was not home, liable to the officer? What about the dog "sitter"? Is anyone liable? After all, the dog broke free of its chain, so the owner, or the sitter, had at least taken the precaution of tying the dog up. Does it matter whether they had tried to be careful in securing the dog?

Here's how New York dog bite liability law works: If a dog bites you, the owner is automatically (lawyers say "strictly" liable), as long as you can prove that the owner knew or should have known that the dog had "vicious propensities" (which usually means it had bitten or attacked, or indicated that it wanted to bite or attack, someone else before). Does it matter whether that they tied the dog up? No! Again, the owner is automatically liable to the dog-bite victim if he knew or should have known his dog had that kind of violent "tendency".

On the other hand, the owner can lessen his liability somewhat if he can prove that the dog-bite victim was partially responsible for getting bitten. This is called the "comparative negligence" defense. If a jury agrees that the bite victim was partially responsible (for example, if he had been tormenting the dog, or got too close to it knowing that it was a mean dog), the jury can lower the verdict in proportion to the fault of the victim. For a more complete analysis on New York dog bite law, see my prior blog post on the subject .

The police officer here actually has a better New York dog attack case than you or I would. Why? Because of New York's General Municipal Law (GML) section 205-e, a special law that protects police officers. Here, if the police officer's lawyer can find that a State statute or local regulation regarding pit bulls, or dog leashes, or harboring dangerous dogs, was violated, he can bring a claim under GML 205-e. The good thing about GML 205-e is that the person who caused the injury by violating the regulation or statute can't claim any "comparative negligence" against the officer. That means that even if the officer was himself partly to blame for getting bitten, the owner will be responsible for fully compensating his injuries, medical expenses, lost wages, etc.

So now you know how it feels to read a newspapers story like a New York dog bit lawyer! Aren't you glad you don't do this for a living?!

Laws should be fair and just, but are sometimes unfair and harsh. Think of the laws that allowed slavery, and later the Jim Crow laws. Think of the Nazi laws that allowed Jews to be arrested and deported or worse just for being Jews. Or think of the Roman laws that allowed Jesus to be crucified. All these laws were perfectly "legal" and they were carried out "by the book"!. So don't think that just because it's the law, it's right.

Those, of course, are extreme examples of unfair, harsh laws. But lesser examples of harsh, unfair laws abound in our law books even today.

The families of the 11 workers who died in the Deepwater Horizon explosion are now discovering how unfair and harsh one of our laws is. In their lawsuit against BP for the loss of their loved ones, they are limited, by a 90-year old Federal law, known as the Death on the High Seas Act, to "pecuniary loss" compensation, which consists mostly of lost income stemming from their loved one's death. They have no right at all to claim compensation for their grief, loss of care, comfort and companionship, and emotional suffering.

But when someone dies, his or her close family members lose far more than just money. Indeed, the emotional loss that death provokes is one of the most profoundly painful experiences a human can endure. Maritime law, however, does not recognize that loss, or compensate it. This harsh law will limit compensation to YOUR family, too, if you die at sea, for example in a cruise ship.

But here's good news: The BP Gulf of Mexico rig explosion that killed 11 workers has brought to the fore the harshness and injustice of this old law. As a result, a bill has been proposed in Congress, HR 5503, entitled "Securing Protections for the Injured from Limitations on Liability Act" (SPILL Act), which would, if passed, change this old, outdated law to (among other things) permit recovery of non-pecuniary damages (e.g., grief, loss of care, comfort, and companionship of the dead family member) by the family of a decedent killed at sea. You can read all about it on this CNN report.

It is time we recognize the gross injustice of denying a grieving family compensation beyond mere "pecuniary loss". But don't take it from me. Take it from Keith Jones, who lost his son, Gordon Jones, aboard the Deepwater Horizon rig. Gordon left behind a pregnant wife and a small child. Under current law, they will get nothing for their sadness, suffering and grief. BP won't have to compensate the fatherless children for the loss of their dad's love, guidance and nurture. Before the House Judiciary Committee, Gordon Jones testified that: "I want to say how offensive it is when the law recognizes only pecuniary loss in cases like these eleven deaths. . . Please believe me; no amount of money can ever compensate us for Gordon's death. We know that. But this is the only means available to begin to make things right."

Now let's shift the spotlight from Federal Law to New York State law. As a Central New York personal Injury and wrongful death lawyer, I am outraged and embarrassed to have to tell you that New York is one of the few States in the Union that does NOT recognize emotional loss in wrongful death cases. Compensation is limited to pecuniary loss. In other words, New York's wrongful death law is just like the Death on the High Seas Act that some in Congress are proposing to change. And it is just as outdated, unfair and harsh. And it is just as in need of change.

I have blogged about this before. Now's the time. New York should follow Congress' lead and revamp its Wrongful Death law.

The Syracuse Post Standard reports that a Baldwinsville man got a one-to-three year jail sentence for seriously injuring two motorcyclists last fall in a Syracuse, New York car-on-motorcycle collision. He was driving through the intersection of Hiawatha Boulevard and State Fair Boulevard in Syracuse with a .08 blood-alcohol count when he turned left into an oncoming motorcycle. The driver of the motorcycle ended up having the lower part a leg amputated. The motorcyclist's passenger also suffered leg and back injuries in the crash, and still walks with a cane.

From my experience as a Syracuse New York motorcycle accident lawyer, I can tell you this is an all too common car-on-motorcycle crash in three ways: (1) the car turned left in front of the bike, violating his right-of-way (a very common cause of car-on-bike crashes); (2) the motorist clearly failed to see the motorcycle (also very common); (3) the motorcyclist lost a leg (a common injury in motorcycle accident cases - we represented a cyclist last year who had to have a leg amputated as well); and (4) alcohol was involved (again, far too common).

What are these New York motorcycle accident victims' rights (besides seeing this guy go to jail)? They both have a strong claim under New York motor vehicle accident law for compensation from the driver, and from his insurer. The problem is this: I can almost guaranty you that his insurance policy won't have a high enough limit to fully compensate these horrific injuries. And the motorist himself, now in jail and with no income, won't be able to contribute a dime. So these Syracuse motorcycle accident victims will probably just remain under-compensated (unless they have something known as "SUM" coverage in their own motorcycle insurance policy, which I will discuss in a later blog). Unfortunately, this too is all too common.

True heroism is rare. Strictly speaking, sports figures are not "heroes". In order to be a true "heroe", you must risk your own life to save someone else's.

This past June 10th, two true local heroes saved a life, all while risking their own. Joseph and Anna Buttaccio of Newark were just passing by on Route 31 in the Town of Palmyra when they saw a head-on collision between two cars. One of the cars then left the roadway and burst into flames. Disregarding risk to their own lives, the two heroes reached into the burning wreck and dragged the driver to safety. They suffered burn injuries themselves, but, fortunately, they don't appear to be serious.

The driver whose life they saved was air-lifted to Strong Hospital, where he remains in guarded condition. He suffered not only severe burn injuries, but also a traumatic head injury, including a fractured skull. Although this driver appears to have been at fault for the collision (he had crossed over into the oncoming car's lane of travel), and may have to answer to criminal charges (the driver of the other car is very seriously injured, too), and will almost certainly be a defendant in a New York motor vehicle accident lawsuit, for now he should simply be grateful to be alive. And that he owes to the Buttaccios of Newark.

That's why the Central New York personal injury and car accident lawyers of Michaels & Smolak salute the Buttaccios of Newark for their true heroism..

This photograph was taken at the Geneva, New York YMCA swimming pool last Friday, June 18. That big kid in the middle who looks a lot older than the others is me. The occasion was the last Friday evening swim outing of the school year for the Boys & Girls Club kids of Geneva. Every Friday after work during the spring months I take about 11 of them with me in a van to the YMCA pool where I teach them how to swim and to safely enjoy the water. Most of them have never been in the water before they came with me. Some of them stay with me for several years.

Why do I do it? Lots of reasons, really. Giving back to the community. Really caring about children (I have five myself!). Paying back a debt I owe to the world for being so damn lucky in life. But here's another reason: To save lives.

You see, drowning is the second leading cause of accidental death among children. And one demographic in particularly at risk. Which one? Take another look at the photo. Yes, mostly African American kids. As discussed in a recent ABC news report, black children drown at three times the rate of white children. This is because while 60% of white children can swim, only 30% of black kids can.

As a Syracuse and Geneva New York area personal injury attorney, I also handle New York child drowning cases. These cases just drive me crazy, because the harm is so preventable! Usually the accidental drowning claim is brought against whoever was in charge of supervising the child that drown, or against the pool owner for not providing a secure, safe pool. Research shows that proper use and installation of barriers or fencing, as well as additional layers of protection, can prevent child swimming pool drownings.

But there is a layer of security that goes beyond proper supervision and proper pool safety. I am talking about teaching kids to swim. It's very simple, really: Kids who can swim usually don't drown, and kids that can't, often do, So in my little corner of the world, in Geneva, New York, I am helping kids, mostly black kids, learn how to swim away from those disturbing statistics.

Handling Central New York bicycle accident cases has its draw backs when you are also a bicyclist. It ruins your fun. You can't ride without thinking about the guy you are representing who may never walk again because a car at an intersection "didn't see him" and did him in. Or the guy who got pummeled by a dog that charged straight into his back wheel and sent him crashing to the pavement, causing traumatic brain injury (TBI).

So as I am out on the road trying to relax, I see every car as the enemy. Every dog is a potential lethal missile. My wife says I should either change professions or change pastimes. But if you know me you know I'll do neither.

And I wish I had a penny for every time I have heard a motorist who took out a cyclist say "I didn't see him" or "he came out of nowhere". Once the bike-striking-motorist gets lawyered up, it gets even better. At deposition he will say, "I looked carefully to the left, I looked carefully to the right, then I looked carefully straight ahead, then I made my turn, and --- boom -- there he was, out of nowhere"!

By the way, this defense doesn't work. In New York motorists are required not just to "look", but to actually see that which can be seen. No matter how carefully you claim to have "looked" if you didn't see that which there was to see, you are liable.

The interesting thing about this "I-didn't-see-him-even-though-I-looked" defense is that it makes cyclists out to be magicians. We can magically appear out of thin air! We can even make ourselves invisible! And we are especially adept at re-appearing right in front of the hood of cars! We are just dazzling, supernatural creatures, really.

What motorists who hit cyclists will find out, though, is that cyclists have even more magical powers than they thought. With a little help from good bicycle accident lawyer, injured cyclists can make money magically disappear from the negligent motorist's insurance carrier's pocket, and re-appear just as magically in the injured bicyclists' pocket. And that's a good thing. The cyclist will need that money because his magic, though truly marvelous, is not powerful enough to make his permanent, life-altering injuries disappear.

When it rains it pours. And this week a storm of motorcycle accidents moved into Western New York State.

Case in point: A Cattaraugus man was killed Saturday night after he struck a ditch and was thrown from the bike. He was air-lifted by Mercy Flight to Erie County Medical Center, but died there from his injuries.

Earlier that same day, a motorcycle crashed in the 900 block of Sweeney Street in Buffalo killing the driver and injuring a passenger.

There were other motorcycle accidents in the Buffalo area as well this week. For example, a Lancaster man crashed his bike into van on Bowen Road near Rice Road in Elma after the van turned left into a driveway without yielding to the motorcycle. Also, a Perrysburg man suffered a motorcycle injury Friday on Allegany Road near Silver Creek.

If you own and ride a bike, I don't need to tell you what I have learned through my years of experience as a Central New York motorcycle accident lawyer; you need to be careful. Our New York State roadways provide miles of unsurpassable riding pleasure strewn with undeniable riding danger. Watch out for that guy who is not watching out for you (like that van driver above who turned left into a driveway, cut off the cyclist, violating his right of way). And keep your bike under control at all times (most of the accidents above were the motorcyclists' fault).

If you do get hurt on your bike, call a lawyer experienced in New York motorcycle crash cases. The scene needs to be examined promptly for skid marks and other evidence. Insurance carriers need to be put on notice of claims. You should worry about getting better. You don't need to worry about all those insurance and legal issues. That's your New York motorcycle accident lawyer's job.

Be safe and do everything you can to avoid an accident. But if it happens to you, worry about getting better, and let your motorcycle accident lawyer worry about the rest.

I read in the Syracuse Post Standard today that a 10-year-old skateboarder was hit by a car, and ended up pinned under it, at the intersection of Jasper Street and Highland Street in Syracuse. Firefighters had to jack up the car to free the unfortunate boarder. Fortunately, he suffered only a broken arm and some scrapes, which were treated at Upstate University Hospital. The experience must have been horrific, though. Imagine being stuck under a car!

As a Syracuse New York automobile accident lawyer, I have represented the parents of child-pedestrians with far worse injuries, including death. Nothing is harder for me than representing grieving or worried parents whose kids have been hurt or killed.

This recent Syracuse car-on-pedestrian (after all, a skateboarder is just a pedestrian on wheels!) collision should serve as a reminder to all motorists that "school's out for summer" and this means more kids, all day long, running, biking and skate-boarding around on our City streets. During the school year, car-on-child pedestrian accidents are "clustered" between 3:00 p.m. to 6:00 p.m., but during the summer months children are struck by cars all day long, even into the long, light-enhanced evenings.

Please keep a special lookout for kids this summer.

My hometown paper, the Geneva Finger Lakes Times, reports today on a boating accident that happened in Seneca Lake this past weekend. A 16-year-old Penn Yan girl was out on the Lake tubing when her hands got entangled in the ski rope that tethered the tube to the back of the boat. She suffered serious injuries to both hands. Surgeons at Strong Memorial Hospital in Rochester were unable to save one of her thumbs, despite several surgeries.

As the father of a teenager, I feel terrible for this kid, and her family.

You may think this accident was a "fluke", but I don't. Ski ropes can kill, main or severely injure, if they are not properly tied, secured or stored. Just a few years ago the Finger Lakes boating accident lawyers of Michaels & Smolak handled a case where a ski rope that was partially in the water, but mostly coiled up on the boat deck, got wound up in the boat's propeller, caught our client's leg, and dragged her from the boat, into the water, and into the propeller. The doctors had to amputate her leg below the knee. We were able to get her a $1.5 million dollar settlement (but the money's never enough!) from the insurance carrier for the boat owner who had failed to properly secure the rope.

So ski rope accidents, like most boating accidents, are not usually "flukes". "Flukes" are by definition unavoidable one-time events. Most boating accidents are avoidable and recurring. They are most often the result of a failure to follow safe boating practices.

Ski rope mishaps are not, however, on the "top five" boating-accident list. That dubious honor goes to: collisions with other watercraft, collisions with fixed objects, falls overboard, skier accidents, and capsizing.

Responsible boaters can take a few simple steps to avoid these injuries and accidents: Always wear a life jacket. Take a boating safety class like the ones being offered free in Cayuga County. Don't drink if you are operating a boat. Keep vigilant behind the wheel. Slow down near the shore and other vessels. And --- hey --- let's learn from this recent Seneca Lake boating accident --- pay attention to that ski rope! Is it properly tied? If not being used, is it properly secured? Are you instructing your guests to keep their hands and feet away from the ski rope?

Have a safe boating summer in the Finger Lakes everyone!

I blogged just the other day about the Syracuse construction workers, employed by Apple Roofing, who were injured when a scaffold collapsed, bringing them down with it, at Binghamton University dormitory under construction. I talked about how New York's special "Scaffold Law" (Labor Law 240) makes the Owner of the construction site (New York State and perhaps the New York Dormitory Authority) and the general contractor (LeChase Construction)on the job automatically liable for the fall and injuries.

Here I want to talk about how a smart New York construction accident lawyer would handle this case. He or she would get this case to a judge ASAP to rule that the Scaffold Law applies, and that the defendants are therefore automatically liable for the injuries! (You can do this through a procedure known as a "summary judgment motion"). Why the rush? Because once you establish, under New York law, that these guys are liable, 9% annual interest starts running on the money the injured construction workers are owed for their injuries. Now that's a lot of interest in today's weak economy. Try getting that on Wall Street today!

After "liability" is established on "summary judgment", which is a no-brainer in this case, and interest starts running, getting the case to a jury on the remaining issues of medical expenses, lost income, and pain and suffering compensation, will take some time. In fact, you have to wait to see how well the injured worker heals before you even know how much to ask a jury for. But now at least you have interest running. The money is in the bank, and is cooking up 9% interest a year!

I have seen too many lawyers wait too long before getting a ruling on liability. They thus give up all that interest. They think they have to wait for a lot of "depositions" to be taken before they can get the ruling. But in a case like this one, with such clear liability, there should be no need for that. Get that liability ruling, and get it fast. Get that interest running! Then, when you eventually get your money verdict, the judge will tag onto it all that interest that has been running at 9% annually since the date liability was granted. Believe me; all that interest tagged on can make a huge difference in the ultimate money verdict for the injured construction worker!

Scaffolding has only one purpose: To hold workers up safely while they work. And when it doesn't do that, very bad things happen. I'm talking big injuries, or even death. That's why, for generations, New York State has recognized the importance of having an iron-tight law to protect construction workers from the severe injuries, or death, caused by falls from scaffolds.

The Binghamton New York scaffold collapse, which injured six construction workers yesterday, is a prime example of how important New York's "scaffold law" (Labor Law 240) is. The scaffolding had been erected at Binghamton University on the side of a dormitory under construction. It had not been up even 24 hours when it collapsed, taking six construction workers down with it. I can guaranty you that workers' compensation will never be enough to fully compensate these injured construction workers. That's why Labor Law 240, the "Scaffold Law", is so handy for New York construction and scaffolding accident lawyers like me. This Statute makes it easy to get full and fair compensation for the victims of collapsing scaffolds.

The "Scaffold Law" says that the owner and general contractor (and sometimes others) of the construction project are AUTOMATICALLY liable (New York scaffold lawyers say "strictly liable") to injured construction workers who fall from scaffolds. If the scaffold failed to do its job of holding the workers up safely, then they are liable, period. No excuses. No stories. No shifting the blame to others. (Well, there are a few exceptions, but I can't see any that would be applicable on the facts of this case).

No explanation for the collapse has been given. But, to a New York construction accident lawyer, it doesn't really matter. The owner and general contractor are liable to the injured construction workers regardless of why the scaffold fell.

So the State of New York, the owner, and LeChase Construction, the general contractor, are probably already setting aside money to pay these construction workers when the inevitable Binghamton work place accident lawsuit gets filed. And that's a good thing. The injured construction workers and their families will need it.

Here we go again with another all-too-typical, and tragic, Central New York motorcycle accident caused by motorists' amazing ability to overlook, fail to see, and otherwise be oblivious to, motorcyclists. The Syracuse Post Standard reports that a Syracuse man died Tuesday in a motorcycle crash in the Town of Sennett, Cayuga County, not far from our main personal injury law office in Auburn, New York. The biker was riding a 2003 Honda westbound. on Grant Avenue, when the car, ignoring the motorcyclist's right-of-way, turned left onto Grant from County House Road and cut him off. The unfortunate biker was unable to avoid impact with the left side of the car.

You are almost twice as likely to be involved in an accident if you are on a motorcycle as compared to in a car. Why? You guessed it - cars don't see you and end up cutting you off or hitting you, just like this motorist did to this biker.

The motorcyclist's family will have a strong wrongful death case against the owner and driver of the car that cut him off. Even though motorists tend to not see motorcycles, the law REQUIRES motorists to see them. The defense, "gee, I just didn't see that motorcycle coming", is no defense at all.

What about insurance coverage for this guy's poor, grieving family? In New York cars are required to have at least $25,000 in liability insurance coverage. In the wrongful death claim against the car's owner and driver, the family can claim compensation not only for the "economic loss" they suffer as a result of losing their loved one (lost income support, medical expenses, funeral expenses), but also compensation for any "conscious pain and suffering" they can prove the motorcyclist suffered before he died.

Let's hope this car had lots of insurance beyond the $25,000 minimum.

I have seen, in my Central New York personal injury law practice, too often and too close-up, horrendous boating injuries suffered because of unsafe boating practices in our otherwise-lovely Finger Lakes. That's why I feel duty-bound to tell my readers about boating safety classes being offered FOR FREE in Cayuga County this month.

The Cayuga County Sherriff's office has announced that it is offering 2 boater safety classes, one at the Owasco Fire House, Station 1, at 7174 Owasco Road, from 8 a.m. to 4 p.m. on June 12, and the other from 8 a.m. to 4 p.m. June 19 at the Scipio Fire House, 3550 State Route 34. Again, these safety classes are absolutely FREE, so how can you go wrong? To register, call the Sherriff's office at 315-294-8145.

I won't spoil the suspense of these classes, but guess what --- driving a boat is NOT like driving a car! The rules are different, as are the safety concerns. Don't just jump behind the wheel of a boat and assume you know what you are doing because you can drive a car --- learn the rules and life-saving safety tips at these classes. And above all, absolutely FORCE young boaters under your control to sign up for this freebee. (Just like with cars, most boating accidents are caused by inexperienced and youthful drivers.)

Take this class, and take your kid. Maybe you can avoid having to come to see me --- or making your victim come to see me - about a New York boating accident claim!

Workplace injuries are, unfortunately, all too common. Work site fatalities are less common, but even one is one too many!. And when death-at-the-workplace happens to YOUR father, husband, wife or mother, it changes your life forever. That's why our hearts go out to the family of the Herkimer County man who was killed today in Lincoln, New York at the Madison County landfill. The box of his dump truck had become stuck while he was dumping trash into the landfill. He was trying to dislodge the box when it fell off the truck and crushed him. Co-workers had to use a backhoe to lift the box off him.

As a Syracuse New York work place accident lawyer, I can't read a story like this without wondering whose fault it was. Who is responsible? Usually accidents don't just "happen". Rather,my experience with work site accidents teaches me that almost always someone failed to follow safety rules.

This unfortunate worker was employed by Feher, a waste disposal company that operates in Syracuse, Utica, Watertown and Geneva. Feher has a less-than-perfect safety record. In 2007 a Feher truck ran over a Feher employee while he was collecting trash in Pompey. In 2009, a pedestrian was trapped under the wheel of a Feher truck.

I'm not saying Feher was at fault --- just that it has some suspicious blemishes in its safety record. When a company has a troublesome safety record, it usually means they are cutting corners and skirting safety rules. In this case, the truck box might have been improperly maintained, inspected, constructed or installed.

This diseased worker's family has an absolute right to worker's compensation benefits, of course. But the compensation will be minimal when weighed against the loss. And even if the employer was negligent in the maintenance of the truck, and this caused his death, the worker's family will be barred from suing the employer by Workers' Compensation Law. Nothing bars them, however, from bringing a claim against other parties who might be responsible for this accident. Perhaps an outside company was responsible for maintenance of Feher's trucks, in which case this deceased worker's family might have a worksite accident case against them.

OSHA will certainly be investigating this incident and may write "citations" that point an accusatory finger toward a culpable party. A competent workplace accident lawyer would know how to supplement OSHA's investigation to unearth other evidence of fault.