July 2010 Archives

July 31, 2010

Should New York Cyclists Obey ALL Traffic Laws? Central New York Bicycle Accident Lawyer's Opinion.

Thumbnail image for bicyclists racing.jpgO.K., I have a confession to make. I am a law breaker! Yesterday, for example, I blew through at least 5 stop signs. Why?

Because I was on a bicycle. Good excuse? Not legally. And as a New York Bicycle accident lawyer , I usually recommend that cyclists strictly adhere to the New York vehicle and traffic law. But come on! Is a cop really going to pull me over for rolling through a stop sign when I am on a bike!? Of course not. And am I endangering others (as a motorist does) when I roll through a stop sign without stopping? Of course not. So who am I endangering, if anyone? Only me. And actually, I don't' think I am endangering even myself! Let me explain.

The street I live on, Maxwell Ave, in Geneva, New York, is four blocks long. Each intersection is controlled by four-way stop signs. The City speed limit is 30 miles per hour. So when I take off for a ride down Maxwell, I don't stop at these stop signs (unless cars are coming). Instead, I slow down a bit, and look to my left and right (twice!) and just keep going. It's safe! Cars are going slowly, you can see them from far away, and they have to stop no matter which direction they are coming from, so there is plenty of time to react to them.

Why don't I just obey the law and stop? In a word, "momentum"! We Cyclist never want to give up that momentum we have worked so hard to gain. But to fully comply with the New York stop-sign laws, we would have to apply our brakes, pull at least one clip out of the pedal, and put a foot on the pavement. And lose all that momentum!

Traffic laws were made for cars. In a car-free biking world, stop signs would not even exist. Cyclists can, and do, slow down, look both ways, and proceed through intersections without endangering each other.

Idaho has it right. Its stop-sign law, first made law in 1982, and then updated in 2005, allows cyclists to treat stop signs as yield signs. If a biker looks, and no cars are coming, he or she is allowed slow down and roll through the stop sign. He or she is allowed to keep his or her hard-earned momentum!

Red lights are a different story. Stop! But stop signs, at least four-way ones, are different.

Unfortunately, New York (and the other 48 states) have not followed Idaho's lead, although San Francisco, and a few States, are considering doing so .

Fortunately, police rarely ticket cyclists who safely roll through stop signs, at least not in upstate New York.

I don't advocate careless, dangerous cycling. I see too many serious bicyclist injuries in bicycle-car collisions in my job as a New York personal injury lawyer. I am a strong advocate of safe biking practices. But let's be real. Almost no cyclists I know come to full stops at all stop signs. Let's make the law reflect reality in upstate New York.

July 29, 2010

New York Defective Machine Injury Cases Require an Engineer's Help.

machine.jpgLet's say a guy with a completely limp arm walks into my office. The arm just hangs there, lifeless. The guy will never be able to use that arm again. What happened? Let's say his sleeve got caught in a machine, which drew in his arm, and that his arm was stuck in the machine for many hours while emergency response teams tried to extricate him. My client appears blameless. He was just doing his job the way he always did it, and the way his employer instructed him to do it. Why did the machine suck his arm in? Was it defectively designed? Was it improperly maintained? Why wasn't there a kill switch he could reach? Were the warnings and instructions on it sufficiently clear? Was my client simply not trained right on how to use it?

These facts are similar to several cases I have handled, including one I just recently took in. And I can't answer those questions I just posed, at least not yet. New York workplace injury lawyers like me need to rely on engineers to help us answer these questions. The main question, though, is whether the machine was "defective". By "defective" I mean "unreasonably dangerous", which is the standard for proving a New York product liability lawsuit. My client has a case only if the machine is "defective", and the engineer's main job is to determine whether it is defective.

I have already consulted with such an engineer. We are going to carefully examine the machine together. My expert engineer will then be able to tell me whether, in his opinion, the machine was defective. He will research the relevant standards for designing and building such machines during the time period when this machine was built, and also will research the standard warnings and instructions that should be placed on this kind of machine.

Since my client is poor and can't afford to pay the engineer, I have agreed to "front" the money for it. And it's expensive! But it's also the only way to find out if the client has a case. I sure hope he does have a case, because his workers' compensation payments (60% of his regular wages) don't pay all his bills, and he's got kids to feed.

If there is a defective machine case, it will be against the designer and builder of the machine. He can't sue his employer because workers' compensation law bars him from doing that.

I feel really bad for this client. He is a nice guy, with a bad injury, and has a tough economic situation. One of my worst jobs is to tell a seriously injured and blameless client "you have no case". I am hoping I don't have to tell him that.

July 28, 2010

You Don't Give Up Your Right to Medical Privacy Just Because You Bring a New York Personal Injury Lawsuit for Compensation for Your Injuries.

american health care.jpgInsurance companies love to snoop. They want to dig up all the dirt they can on you. They think that if they know everything about you, they will eventually unearth something they can use to torpedo your case.

For example, both federal and New York State law give you a right to medical privacy. Just because you are injured in an accident caused by someone else's negligence, and you sue them, doesn't mean you give up that right. But many insurance companies act as if this gives them a right to find out everything about your medical history. Whether my client is the victim of New York medical malpractice, a slip-and-fall case, a car accident, or other type of New York personal injury case, the insurance company lawyer will almost invariably ask me for "unrestricted" medical authorization, which, when signed by my client, will give the insurance company lawyer the right to access any and all medical records regarding any and all treatment my client may have gotten from any medical provider from the beginning of the world to the end of the world!

But New York personal injury and medical malpractice law doesn't give them a right to such broad authorizations. They can't snoop! They have a right only to the medical records that are relevant to the parts of the body you are claiming were injured. For example, if you are suing for a broken arm, they have a right to see all medical records, both pre-and post-accident, for treatment for that arm. They can't find out about your C-section, or your hemorrhoids, or about that depression you were treated for years ago!

A couple of years ago, in a case known as Mayer v. Cusyck, a trial judge gave me a bad ruling. He ordered me to supply the insurance company lawyer with unrestricted medical authorizations. I refused, appealed the Order, won, and the defense attorney ended up getting only those records relevant to the part of the body we were claiming was injured.

Every time a defense attorney asks me for "unrestricted" medical authorizations, I write them back and ask them to read Mayer v. Cusyck. But even when they read it, they don't always give up. I just finished battling this issue out in a case. The defense attorney made a motion to force me to turn over unrestricted medical authorizations. At first the judge appeared to agree with the defense attorney, but then I asked the him to read Mayer v. Cusyck. He did, he "got it", and then did the right thing: He gave the defense attorney ONLY the records relevant to the part of the body my client injured (her mouth and teeth).

It always surprises me how many New York personal injury lawyers allow their clients to sign unrestricted medical authorizations. They don't seem to care, or know, about their clients' right to privacy. They should care, and they should know! And so should you. If your New York personal injury lawyer asks you to sign unrestricted medical authorizations, have him or her read this blog post. Then have them call me if they want some legal briefs on this issue.

July 26, 2010

Does New York Auto Insurance Cover Vehicular Assaults in New York Pedestrian Injury Cases?

policecar.jpgThe Syracuse Post Standard reported the other day that an SUV struck a Syracuse man "on purpose" after an argument on Westcott Street Tuesday morning. Fortunately, the injuries do not appear serious; the victim suffered only cuts to his arm and leg and was taken to Upstate University Hospital.

Here's my blog topic for today: Will a New York State car accident insurance policy cover the man's medical expenses or anything else for that matter? Answer: No! Why not? Because this is not a New York motor vehicle "accident" case. It is a New York motor vehicle ASSAULT case. An accident is a mistake. This was no mistake. It was deliberate. No liability or car insurance on God's earth covers for motor vehicle assaults. The reason is simple: Insurance companies don't want people buying insurance policies so they can go out and deliberately bowl people over, and force the insurance company to pay!

Even if the victim owns his own car, his own SUM (supplemental uninsured motorist) coverage won't cover his injuries here, again because it was an "assault", not an "accident". To summarize: He can forget about auto insurance coverage of any kind!

So how will this poor guy get his medical bills paid? Hopefully, he has private health insurance, but if not, he will have to pay himself, or if he can't, he will have to apply for Medicaid. If he is of a certain age, or if he is already disabled, perhaps Medicare will pick up the tab.

This reminds me of a New York car-strikes-pedestrian case I tried in front of a Cayuga County jury several years ago. My client was a "meter man" in Auburn, New York As he was writing a car up for an expired parking meter, the car's owner showed up, got angry about it, and deliberately backed up into my client while he was copying down the license plate number. My client ended up with a knee injury. I was afraid the guy's auto insurer would disclaim coverage based on "assault" or "intentional act", but fortunately, the angry man claimed it was an accident (yeah, right . . . ), and told his insurance carrier so (because he wanted insurance coverage). My client lucked out on that one, because if the driver had admitted he had backed up to "get even" with my client, insurance coverage would have been denied.

Doesn't look like this car assault victim in Syracuse will be so lucky.

July 25, 2010

Prescription Drugs and Driving -- Can You Hold Legal Drug Users Liable in Your New York Car Accident Case?

Thumbnail image for carcrash.jpgYesterday the New York Times reported that, while drunken-driving deaths are dropping, car-accident deaths caused by drivers who have taken legally prescribed narcotics, such as painkillers, sleeping pills, anti-anxiety medications, and other potent drugs, are increasing. Unlike with alcohol, no firm studies or guidelines exist determining what blood level of these drugs impairs driving. Yet the drugs, in many cases, clearly cause driving to deteriorate. They can impair motor skills, slow reaction time, and undermine judgment. For example, anti-anxiety drugs can make a driver less alert, and slower to react. Stimulants, on the other hand, can lead to risk-taking and diminished judgment. Drivers "on drugs" (albeit legal ones) often have many of the symptoms of drunk drivers --- bloodshot eyes, slurred speech, or erratic driving.

So here's my blog topic of the day: What happens, in a New York car accident lawsuit, if the defendant driver who you claim is at fault for the car accident, was "on drugs" (albeit legally prescribed ones) at the time of the collision? Can the fact that he or she took prescription drugs before the crash be used in Court to make out your case?

Answer: Yes, of course! Most prescription drugs that can affect driving have clear indications on them that they should not be ingested before driving or using machinery. And besides, common sense dictates the same. The motorist who struck your car should have known better, and had a duty to either refrain from using the drugs or refrain from driving. So it is no excuse that the drugs taken by the driver, who, say, swerved into your lane, were "legal".

In Court, your New York auto accident lawyer may need to hire an expert pharmacologist to explain to the jury the affect the drugs likely had on the driver. But probably not --- in most cases it will be clear that the drugged motorist is responsible for the collision because he or she crossed into your lane, blew the stop sign, failed to yield --- or whatever. Only in cases where the driver's fault is more subtle --- for example, delayed reaction time --- will such expert testimony be needed.

One more thing --- read your prescriptions before driving! If they are likely to affect your driving, they should tell you how long to wait after ingesting the drug before driving. Thanks for being safe!

July 23, 2010

How Do You Calculate A Statute of Limitations on A New York Legal Malpractice Case?

photo__1501307_michael_bersani.jpgWhen a client brings a potential New York legal malpractice case to me, one of the first things I do is try to calculate the statute of limitations (the last day the lawyer can be sued). I say try because this is not always easy in legal malpractice cases. And that's what I am going to blog about today.

Here's the easy part: The statute of limitations is always three years. Here's the hard part: When does the three-year period start running? The legalese answer is, "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court" (Ackerman v. Price Waterhouse, 84 N.Y. 2d 535). But what does that mean? In most cases, it is the day the lawyer made the mistake (committed malpractice), but not always. Some of the cases say that the damages due to the malpractice need to be "sufficiently calculable" for the clock to start running. But "sufficiently calculable" is not always black and white. There are grey areas. That's why we don't always know what a court will find to be the "accrual date" (start date) for the three-year period.

Does it matter when the client found out about the malpractice? Example: A client consults a lawyer about what he thinks is a great lawsuit, but the lawyer tells him (wrongly) that he has no case. More than three years later the client consults another attorney who says, "gee, that was a great case, but your statute of limitations on it expired about a month after you saw that first attorney. That first attorney should have filed suit for you and you would have gotten a million-dollar recovery!" Does the three-year statute of limitations bar the client from suing the first lawyer, even though the client did not know he had been malrpracticed until after the three-year period had run?

Yes! Barred, barred, barred! In fact, it doesn't matter at all, not one bit, whether the client knew of the malpractice, or even of the harm, until more than three years later --- the clock was running, and if the three years ran out - too bad!

Ouch. That's pretty harsh for the client.

Another little twist in calculating the starting time for the three-year statute of limitations is the "continuous representation doctrine". Under this rule, the three-year legal malpractice statute of limitations is "tolled" (does not start to run) until the lawyer ceases to represent the client on "the same matter".

Why this rule? Think about it: It would be very uncomfortable and counterproductive to sue the lawyer while he is still representing you. And you sometimes still need him to finish off the job he started, or to try to correct his error. The law recognizes this, and cuts the client some slack here -- the client doesn't have to worry about the statute of limitations time running while the lawyer is still representing him on that "same matter" - it won't start running until the lawyer/client relationship on that same matter ends.

But what does "the same matter" mean? What if the lawyer continues to represent you on an offshoot of the main matter? Is that the "same" matter? Do you get the toll or don't you? Well, it depends on whether a court rules it was "the same matter".

As you can see, it is somewhat complicated to calculate the statute of limitations in New York legal malpractice cases. So what does a New York legal malpractice lawyer do to know when he needs to sue the malpracticing lawyer?

Here's how I handle it: I usually "diary" a "conservative" statute of limitations (worst case scenario) and then more generous ones. I always sue the case out before the conservative one, unless for some reason that is impossible (for example, when the client comes to see me after that conservative date has already come and gone).

I sure as hell try not to malpractice my legal malpractice cases! So far so good.

July 22, 2010

Why Do New York Foster Care Abuse Lawyers Sue the County?

bullied.jpgEvery year I give a lecture to other New York accident and personal injury lawyers across New York State on the issue of "Municipal Liability". Before my lecture, I review the recent case law in New York on this issue. This is a complex topic. Suing New York municipalities (its Counties, Cities, School Districts, Villages, Towns and other local governmental units) is tough to do. The government has given itself all kinds of special defenses to lawsuits for injuries it causes through its negligence and wrongdoing.

Every year when I read the new cases, I find at least one, and usually several, cases of foster parent abuse, mistreatment or neglect of a foster child. What do these cases have to do with municipal liability? Usually, the County and its Department of Social Services are sued for having negligently placed the foster child in the foster home where abuse was likely to occur, or for having failed to properly monitor or supervise the foster home.

These cases are very tough for me to read. I love children (I have five!) and feel very protective of them. This year I read the case of Adam H. v. County of Orange, where the mother of a foster child sued Orange County and its Social Services Department when her four infant children were sexually abused while in foster care. All four of them!

Some people might be surprised that New York foster care neglect or abuse lawyers would sue the County, and its Department of Social Services, rather than the foster parents themselves. Actually, the foster parents are usually sued, too, but since they seldom have money to pay the judgment, and their homeowner's insurance won't cover intentional abuse, New York lawyers representing foster care abuse or neglect victims look to the County for compensation.

The lawsuit against the County and its agent, the Department of Social Services, will generally only be successful if the County failed in its duty to carefully investigate the foster home before placing the child there, or later failed to properly supervise and inspect the foster care home for neglect, abuse or other dangers, and to remove the child if he or she was in danger.

Almost all foster parents are loving, caring people who take foster children in for charitable purposes. They deserve our praise and admiration. But as in every human endeavor, there are always bad apples. The County's job is to act reasonably in trying to remove those bad apples. When they don't, and a foster child is hurt, abused or neglected --- call a New York foster care injury lawyer.

July 19, 2010

New York Personal Injury Lawyers -- A Brotherhood of Justice Seekers

fire.jpgToday I got a call from a fellow New York personal injury lawyer in Buffalo, New York. He is representing the widow of a firefighter who died while fighting a fire. The case he is building revolves around some code violations by the homeowner and some firefighting rules not heeded by fellow firefighters. The widow is obviously furious that her husband had to die because of other people's mistakes, and she wants justice.

The widow's lawyer had read about a case I had won on appeal a few years ago. News of that case , Prince v Onondaga County, had spread like wildfire when I won it because, I was told, it was the first time in the nation that a Court had ruled that an emergency responder could been held liable for failure to follow the "incident command system". The incident command system is what emergency responders, such as firefighters, are supposed to follow when they arrive to an emergency scene. The command system is headed by an "incident commander", usually the first officer-level firefighter who arrives on the scene. All orders and information flow from the incident commander out to the various units of the firefighter team. If individual firefighters start acting on their own without following this system, it can lead to disaster. The left hand does not know what the right hand is doing. That's what we allege happened in Prince v. Onondaga County.

Coincidentally, in both my case, and in the Buffalo case, the firefighter died after a floor, which had been compromised by the fire, gave way, causing the firefighters to drop down into the basement where they were trapped in the fire and smoke with no escape. I can hardly imagine a worse death!

I haven't gotten to trial yet on that case, but I hope to get there sometime next year.

One of the great things about being a New York accident lawyer is the camaraderie and good will among fellow injury lawyers. We help each other out anytime, and in any way, we can. I think I helped out my (now) friend from Buffalo today. He was very grateful, and I was glad to help him.

July 18, 2010

New York Personal Injury "Loss-of-Consortium" Claims: What Are They, What Are They Worth, and Why Do They Sometimes Lead to Trouble?

married couple.jpgWhat is a "Loss-of-Consortium" Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.

Wew, that was a mouthful! Let me try to break that down.

Although the uninjured spouse of a New York accident victim has not suffered any "physical" injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal "services" that the injured spouse would have continued to provide but for his or her injury. The "services" lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of "loss of consortium" is rooted in traditional principles of "man and wife", it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.

The "loss-of-consortium" claim is also called a "derivative" claim because the uninjured spouse's claim depends on, and derives from, the injured spouses claim. The two claims are always brought together.

What Is a Loss-of-Consortium Claim Worth? Frankly, juries don't usually award much for New York "loss of consortium" claims, and therefore, their "settlement value" is low, too. Although jury awards for loss-of-consortium claims vary, if you look at a lot of cases, and average them out, you will see (as I have) that they amount to, on average, about 10% of the injured spouse's award. Big loss-of-consortium awards usually ride on the coat-tails of big awards for catastrophic or very significant long-term injuries such as brain damage, paralysis, incontinence, or loss of sexual function.

How Do Loss-of-Consortium Claims Lead to Trouble? One thing that can throw a monkey wrench into a New York personal injury lawsuit is when married couples divorce or separate while their injury and loss-of-consortium claims are pending. Sometimes the separating or divorcing spouses fight about how to spit up any settlement money, or whether to even settle at all. A New York personal injury lawyer can't ethically represent one spouse against the other, so the lawyer's hands are tied! The spouses have to work it out between themselves, or hire separate lawyers to represent their interests.

If the case goes to trial during or after a separation, it wreaks even more havoc. The separation or divorce saps the jury of any desire to compensate the loss of marital services, so the claim tanks! Even if the non-injured spouse refuses to drop the loss-of-consortium claim, and we usually recommend they do, the jury can award loss-of-consortium compensation only for the period before the separation.

Bottom Line: Is there a lesson to be learned from all this? Yes: Let your New York personal injury lawyer bring your loss-of-consortium claim with your injured spouse's claim, but don't expect too much from it, and, please, stay married, at least till the end of the case!

July 17, 2010

Facebook, Social Media and New York Personal Injury Cases

Thumbnail image for courtroom.jpgI recently read a blog post by a New York criminal defense attorney, Nicole Black, about a juror's misconduct in a criminal case. The juror had sent a Facebook "friend" request to a witness while the trial was pending. (Jurors are supposed to remain absolutely objective and not communicate with any witnesses or parties during trial). The witness later testified that he had no idea who this "friend" was, and ignored the request. The Court ruled "no harm, no foul" and refused to reverse the verdict based on the misconduct.

But the story makes an important point about today's juries. Social media, including Facebook, are a relatively new phenomena and courts, and lawyers, continue to struggle with how to deal with them. While I know that the judge will instruct the jurors that they are not to google or use social media or any outside sources too "look up" the witnesses and parties, I am convinced that many jurors disobey these orders.

That's one reason why the New York personal injury lawyers at Michaels & Smolak make sure our clients are aware of their "exposure" on Facebook and other social media. What would a jury think if they saw your Facebook page? Would the jury see that photo of you dancing and think it was taken AFTER your injury, when in fact it was taken before? Would the jury see that photo of you partying with your friends and draw negative inferences about you? These are serious concerns to a personal injury lawyer who wants to present his client in the best possible light to the jury.

And although some jurors may disobey the judge's instructions and look you up on Facebook, it is almost a certainty that the insurance company and its lawyers, who are trying to torpedo your case, will do so. And don't assume the "security" features can keep anyone out, especially someone as intent on getting in as an insurance company lawyer. They will look for every possible photo or statement in your Facebook page and try to contort its meaning to undermine your claim. They may even confront you with your Facebook page in Court!

Moral of the story? Look carefully at your Facebook page. And talk to your New York personal injury lawyer about it

July 13, 2010

Central New York Tort Lawyer: "Avandia" Scandal Demonstrates How Product Liability and Defective Consumer Goods Lawsuits Protect Americans

pills.jpgSo you say you don't like tort lawyers, product liability lawsuits, or personal injury cases? Well, guess what? You need them, as demonstrated (once again) by the headlines in the New York Times!

The New York Times reports that, as early as the fall of 1999, SmithKline Beecham, maker of a popular diabetes medicine called "Avandia", found out, through studies it conducted, that the drug posed significantly greater cardiac risks than other leading diabetes medicines. So what did they do about it? Let's see how smart you are with this multiple choice test: Did SmithKline Beecham: (a) stop production of Avandia; (b) call the FDA and informed them; (c) do more studies to make sure; or (d) bury the study, tell no one, and continue to churn out huge profits on the sale of the dangerous medicine.

If you guessed "d", you get a gold star, not only for getting the right answer, but for understanding how corporate America, with its single-minded profit-lust, works.

The risks to the heart from Avandia did not become public knowledge until eight years later, in May 2007, when the company was forced by a lawsuit to make public its data. During those eight years, the company did some other studies, but not on the drug itself. Rather, they studied how much money they stood to lose should the truth about Avandia become public knowledge. Those studies, which projected lost profits of more than $600 million, spurred the company to undertake a massive cover-up of the drug test results, and thus to put thousands of diabetics (whose health is already at risk) at even greater risk of early death or serious health deterioration.

My experience as a New York product liability and defective consumer goods lawyer has taught me that hiding the results of negative studies, and the dangers of consumer goods generally, is not only widespread in the drug industry, but in every industry across the board. I have said it before and I will say it again: We the people have only two weapons at our disposal for curbing big business' appetite for building castles of wealth on the corpses of our citizens: (1) tight federal regulation and (2) tort lawsuits.

As for number (1), government regulation, when vigorously enforced and fairly applied, is the people's watchdog. It is our way of looking over the shoulder of the producers of potentially life-saving products to make sure they are not producing life-threatening ones.

As for number (2), that's what I, and my fellow New York product liability lawyers, are here for: Good product liability lawsuits are, arguably, even more effective than government regulation at preventing dangerous products from reaching the store shelves. Product liability lawsuits force corporations and manufacturers to factor into their profit equations the high cost, (i.e., a slew of big-verdict lawsuits) of producing dangerous products. It gives them pause --- not always enough pause, but some at least, -- before they embark down that road of putting safety last, instead of first, where it belongs.

July 8, 2010

Fleming, New York Car / Bus Cross-Over Collision Demonstrates Power of Head-On Collision Force

scared driver.jpgThe Cayuga County Sheriff reports that yesterday afternoon a car crossed over into the oncoming lane of traffic and collided into a bus carrying disabled people on Route 34 in Fleming, New York (just a few miles south of the Central New York personal injury llaw office of Michaels & Smolak, P.C., on Route 34 in Auburn, New York). A 73-year-old female passenger was killed, and 15 others were taken to hospitals. The collision flipped the bus over onto its side, causing lots of injury to the passengers.

From my years of experience as a Central New York car accident lawyer handling head-on collision cases, I know that this type of car accident, more than t-bones, or rear-end collisions, is especially terrifying. The seconds before the collision seem like an eternity because you can SO see it coming! Perhaps the bus passengers here were lucky enough to have avoided this terrifying scene. But the impact also is usually horrific; twice as bad as with any other kind of automobile collision. That's because the combined speed of the two vehicles hurling against each other doubles the force exerted against the vehicles, and the people inside them..

Another anomoly of cross-over collisions is that the vehicles don't usually meet exactly at center point, but rather the left sides of the front of each vehicle tend to meet. And since the left side is where the drivers are located, this makes impact even worse for the drivers. Also, the off-center impact can cause a vehicle to spin or flip, which might explain why the bus flipped in this Flemming, New York accident.

I guess I should finally state the obvious: The driver who crosses over is at fault. Duh! The other driver has no fault, unless he had lots of time to react and avoid the collision and just did not (a very rare occurrence). Excuses that work for the cross-over driver in court are rare. For example, the driver that crossed over may claim he experienced unexpected icy conditions, or was forced to cross-over to avoid striking a pedestrian or to avoid some other danger, or that he was the victim of a sudden and unexpected failure in the steering of the car, or of a sudden seizure, stroke or other medical condition. But these defenses almost always fail.

Proving that the car driver was liable here won't be tough. The tough issue will be insurance coverage. I can almost guaranty you there won't be enough insurance money to go around! And the victim with the best, most aggressive, New York motor vehicle accident attorney has a better shot and taking what little insurance money there is!

July 6, 2010

Central New York Accident Lawyer Gives Hiker Safety Tips

Thumbnail image for hikers.jpgYesterday I blogged about New York personal injury liability for a Park owner's failure to properly maintain trails and hiking areas, and for failing to place appropriate warnings signs. What sparked off that blog entry was a tragic hiker accident in Letchworth State Park in which a 19-year old hiker fell to his death into the gorge.

Now let's discuss common sense safety rules for hikers that can prevent many tragedies on the trail. A hiker is, in the first instance, responsible for his or her own safety. A safe hike begins before the hike. Proper preparation and planning, including making a pack list, which should always include: proper clothing, footwear, appropriate gear, a cell phone, a compass, or a gps navigator, plenty of water, food and a first aid kit.

Learn about the area you are hiking ahead of time. Take recent guidebooks and maps of the area with you. Check weather forecasts before you set out. Do not attempt a hiking excursion that is beyond your physical abilities or health limitations. Let friends or family know where you plan on hiking and when you plan on returning. Bring lots of water on a hot day.

Once you are on the trail, obey all signs. Do not drink water from streams, lakes or ponds without boiling it, filtering it, or using purification tablets. Sign in at all sign-in stations (this will assist in tracking you down if you get lost or hurt). If you get lost and need to spend the night in the woods, build a campfire (this will help keep you safe and warm, but will also serve as a signal for searchers to find you).

Keep an eye on the trail where you are walking - trails are not sidewalks - you really do have to watch them, and not just the scenery, as you walk!

Finally, never hike alone.

Be safe and have a good hike!

July 5, 2010

New York Hiker Accidents: Can the Park or Land Owner Be Held Liable under New York State Personal Injury Law?

hikers.jpgLetchworth is one of several upstate New York State parks. It is the deepest gorge anywhere east of the Rockies and is sometimes called "the Grand Canyon of the East". I personally have spent many splendid, sun-drenched days hiking its trails, and driving or bicycling around its "rim" to take in the spectacular view. It is "gorge-ous"!

But unfortunately, it can also be deadly. Case on point: Local news media sources report that a 19-year old hiker died after suffering a 300-foot fall into the gorge at around 9:30 p.m. this Saturday. No other details are available. What makes this tragedy (only 19 years old!!) so, well, tragic, is that it could almost certainly have been avoided.

Although hiking, especially in State Parks, is a healthy, enjoyable good-weather activity, two human failings (or a combination of them) cause almost all injuries or death on the trail: (1) The Park owner's failure to properly maintain the trails and area and to place appropriate warnings signs and (2) hikers' failure to follow common sense safety rules. In today's blog post, I will talk about number (1), and in tomorrow's, number (2).

So let's talk about number 1 (the Park owner's failings). My Central New York personal injury law firm has handled several cases involving State Park hikers' tragic deaths or serious injuries. I won't kid you; these are tough cases. Lots of special defenses are available to the State and to other landowners that a good New York personal injury lawyer has to adroitly attempt to maneuver around. In general, though, the park owner or landowner (including the State of New York) can be held liable for injuries or death if it failed to act as a "reasonable person" in maintaining its park or land in a "reasonably safe condition" in view of all the circumstances, including the likelihood of injury or death to users of the property.

The owner can also be held liable for failing to warn against dangers that hikers or other users of the land would not likely discover or realize, including dangerous terrains, falling rocks, sudden flooding, loose footing, or sudden drop offs or cliffs. Where the danger is not obvious, the landowner's (or park owner's) burden is even greater. For example, even if the park owner (or other landowner) puts up a sign informing hikers not to pass beyond a certain point, and hikers ignore the sign, the owner can nevertheless be held liable where a particular danger was known by the owner but not stated in the sign (such as the danger of landslides, falling rocks, sudden flooding, or of sudden drop offs). This is especially true where the owner knows that hikers regularly disregard the sign and go beyond it. So, for example, a sign that says "danger - do not go beyond this point", where the danger beyond that point is known by the owner to be falling rocks, or a drop off, or sudden flooding, will not generally suffice, especially where the owner knew that hikers or others often went beyond that point despite the sign.

In sum, if your loved one dies, or if you are injured, while hiking due to some danger on or off the trail, you won't know whether you have a New York personal injury case unless you have the case reviewed, and investigated, by a competent New York personal injury lawyer.

Stay tuned. Tomorrow I will discuss how hikers can avoid injury or death on the trail.

July 3, 2010

Fourth of July Safety Tips from Your Central New York Personal Injury Lawyer

explosions.jpgFourth of July, Independence Day, or whatever you want to call it. It's here! And in New York, where private fireworks are illegal, many citizens are pitted against the law. I personally spend the evening of the Third on Otisco Lake, which is illuminated like a roman candle by private fireworks displays, though I don't buy or handle fireworks myself (sounds kinda corny, but I like to obey the law!)

If you ARE going to "do" fireworks, here some fireworks safety tips from your Central New York injury lawyer:

Use fireworks outdoors only.

Keep water handy (a hose or bucket).

Don't try to alter fireworks or combine them. Use them as they were meant to be used.

Never try to relight a "dud" firework. Wait a half an hour, and then put it under water.

Keep a safe distance from the "shooter".

If you are the shooter, wear safety glasses.

Don't drink if you are the shooter.

Be at least 13 years old if you are the shooter.

Hand-held sparklers are a common cause of injury, especially among toddlers, who may trip and fall on a sparkler and burn themselves, including in the eye. A child who falls on his sparkler has fallen on a welding torch!

Never let young children handle fireworks.

Most Fourth of July fires are caused by throwing fireworks from moving vehicles. Don't!

Do not use fireworks while under the influence of drugs or alcohol.

No getting around it; Americans love their fireworks for the Fourth, legal or not. But if you are going to engage in this (illicit) joy, follow the above safety tips to avoid accidental fires, explosion injuries, burn injuries, and other personal injury.

July 1, 2010

New Law in New York Will Make Cars Passing Cyclists Give Them a "Safe Distance"

Thumbnail image for bicyclists racing.jpgI am a regular reader, and admirer, of Elmira bicycle accident attorney Jim Reed's New York Bicycle Accident Lawyer Blog. Jim is always one of the first to post updates on bike equipment recalls and changes in New York laws that affect cyclists. So I was not surprised to read Jim's blog post today in which he notified his readers, and me, about a new pro-cyclist New York bill (called "Merrill's Law") that is making its way through the legislative process in Albany right now. According to Jim, with a little luck, it will become law this November. The new law will require motorists to keep a "safe distance" from cyclists while passing.

Well gee, about time! Until now a motorist could legally bring his car within inches of your bike and, as long as didn't sideswipe it, he was not violating the law. That makes no sense! And as Jim and I both know from our years of representing New York bicyclists injured by cars, it makes for bad injuries, too. So it's a good thing the law is changing (we hope!).

This new law reminds me of a story my brother Tom Bersani told me. He, like me, is an avid cyclist. He took a trip to Italy a few years ago and brought his bike along. Under Italian law, motorists are required to keep a distance of 6 feet or so from bicyclists. As he was climbing a long, winding mountain road on his bike, a long line of cars trailed him. The motorists could not safely pass Tom while giving him the mandatory 6-foot distance, so they stayed behind him. When the road finally straightened out, Tom noticed that several car windows began rolling down as they passed him. He expected the Italian equivalent of a one-finger salute, or some Italian profanities to be hurled at him for slowing them down. But instead they shouted, "bravo, bravo, bravo!" They were congratulating him on his hill-climbing stamina! I guess Italians really love cyclists!

Hey, New York motorists, next time you pass a cyclist, don't just give him a "safe distance", give him a "bravo" as well!