Central New York Injury Lawyer Blog

As a Central New York and Syracuse slip-and-fall lawyer, I review a lot of restaurant and store slip-and-fall cases. But I only agree to handle about 1 out of every 5 of them. Why? Let's take a typical restaurant slip-and-fall-in-a-soda-spill case. In most such cases, you can't prove that the restaurant was responsible for the spill that the client slipped in. Usually, the client has no way of knowing how long the spill had been there. A careless customer may have spilled it only a few minutes before the client slipped in it. Generally, unless we can prove that someone reported the spill to the restaurant (and they failed to clean it up) or that the spill had been there for a considerable period of time so that the restaurant should have noticed it by conducting reasonable periodic inspections, the slip-and-fall victim has no case. That's basic New York slip-and-fall law!

I came across a recent case that demonstrates what a good slip-and-fall case looks like. A federal jury in Hawaii awarded a slip-and-fall victim $5.67 million dollars to compensate her for a serious spinal cord injuries she sustained at a McDonald's restaurant.

Why was the McDonalds' restaurant found responsible for her slip-and-fall injury? Plaintiff was able to prove that, at the time of the accident, the restaurant crew had failed to clean the floor for a significant period of time. As a result, a greasy film had formed at the spot where the woman eventually slipped and fell.

A restaurant such as McDonalds can avoid slip-and-fall liability quite easily by simply sending someone around to inspect and clean up the floor every half an hour or so, and by responding promptly to spills and messes it learns of. But when a restaurant fails to clean its busy floor surfaces for hours on end, and someone then slips and falls on the grimy, dirty floor, the restaurant can be held legally responsible.

$5.6 million sounds like a lot of money, doesn't it? But believe me, you wouldn't want it, not if you also had to take the injury that goes with it. This poor woman suffered a life-altering lower back spinal compression fracture that required two surgeries and rendered her permanently unable to work. She can only walk a few steps at a time and is almost entirely wheelchair-bound. Almost $3 million of the damages awarded went to compensate her economic loss --- lost wages and medical expenses combined. The remainder was to compensate her for a life-time of high-intensity pain and suffering and loss of enjoyment of life (life in a wheelchair is not a lot of fun!).

Justice was done in this case. And isn't that what this law thing is all about?

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

This past week I put in about 100 miles on my bicycle. And it wasn't enough! Why? Because I just could not get enough of all these marvelous Central New York fall colors.

Take a look at these recent fall photos on the Syracuse Post Standard webpage. Wow!

As a Central New York and Syracuse area bicycle accident lawyer, I appreciate safe bicycling practices. I am watching for wet leaves on the road, which can cause me to slip, skid and fall over. I am also wary of "leafers" - motorists who are out on our scenic country roads looking at the foliage. If they are looking at leaves, they won't be looking at me! As I have blogged about before, motorists often simply fail to see bicyclists. This is obviously even a greater danger when there is such an abundance of spectacular colors to distract them.

So fellow cyclists: Yes, get out there and enjoy the beautiful, Central New York fall foliage. But be on the lookout for two fall dangers: wet leaves and distracted drivers.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Here's a little Halloween quiz from your Central New York personal injury lawyer: What are the three most common childhood Halloween injuries? If your answer included the word "candy", you were wrong (hey, you aren't alone --- I would have thought so, too).

Actually, the most common types of injures seen in emergency rooms across this spooky land on October 31, according to the American Association of Pediatrics, are: (1) Eye injuries from sharp objects, (2) burn injuries from flammable costumes and (3) traumatic injuries from collisions with vehicles.

Are you spooked yet? Now that we know the scary injuries, let's talk about how to avoid them.

First and cardinal rule: Adult supervision. What? I can't just push the kids out the door and enjoy a glass of chardonnay while they trick-or-treat? No, you can't (unless you have a partner willing to walk the kids around for you).

And here are some more safety tips from the American Association of Pediatrics:

• Buy only flame-resistant costumes and wigs.
• Swords, sticks, pitch forks, etc., should be blunt and short (not long or pointed).
• Masks should be discouraged since they impair a child's view. Try to "sell" your kids on makeup instead.
• Flashlights are a good idea - cars see them!
• Finally, yes, do check the candy, especially unwrapped items, but remember that candy tampering and poisoning are rare. You just think it is common because news reporters love to report the rare instances when it occurs.

And, oh, I almost forgot --- if you are a dad like me, and you insist on a 10% "candy inspection commission", don that helmet and shield to absorb impact from your kid's sword or pitchfork.

Be safe on Halloween!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

I blogged the other day about how good it feels as a lawyer to get a "thumbs up". In that blog post, I was talking about a nice email I got from a Rochester New York personal injury lawyer who heard me lecture to a room full of other New York accident lawyers about New York personal injury law issues.

It is nice to get validated by a judge, a jury, and other lawyers, but what I love most is when clients praise me. They are what's most important to me.

What am I talking about? There is a website, "AVVO", which is growing more and more popular, and which gives clients a place to write reviews of their lawyer. I am proud to say that I have a "perfect" (10 out of 10) AVVO rating. But I am even more proud of what my former clients have written about me on my AVVO site. Here are some selected quotes:

One client, whose Syracuse New York construction accident case I handled, wrote, "Mike did an excellent job on my case. He kept me informed on everything that was happening and what needed to be done. He even called us to see how we were doing just because he wanted to. Mike treated me and my family more than just clients, he treated us like friends. I would not hesitate to call Mike if I needed him to represent me again".

Another client, whose Geneva New York trucking accident case I handled, wrote, "Mr. Michael G. Bersani handled my (NY) personal injury case and has successfully completed it in 2010. In the past three years, Mr. Bersani is committed and enthusiastically devoted to my case. We had over 400 email communications, about 10 personal meetings and numerous telephone conversations regarding my case. Mr. Bersani is friendly and trustworthy. He is knowledgeable but willing to learn something new; he has his own professional judgment but likes to listen what you think. He is a good listener and also willing to share his feeling with me. Mr. Bersani is professional and uses his wisdom to fight for my interests; he has very good understanding and tirelessly works with me; he is respectful and treats me very well. Mr. Bersani is easy to approach. Whenever I have questions, he responds me promptly. He is very kind and offers me various help whenever I need. I feel he is not only my legal advisor but also my friend. Michael G. Bersani has my highest recommendation. I would highly recommend Michael Bersani as your attorney."

A third client wrote, "Although we lost the original case in Cayuga County Supreme Court, Michael prevailed receiving a unanimous 5-0 judgment from the Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department in Rochester. Michael did an outstanding job litigating my dispute and I would highly recommend him to anyone."

So, yes, I am proud of my Central New York personal injury case results, but I am most proud of how my clients feel about me at the end of the day. It proves my theory of good lawyering --- if you give each client, and each case, your full devotion and dedication, win or lose, you won't have an unhappy client.

Feel free to email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Holy Kamoli! Lots of car accidents reported in Sunday's Geneva Finger Lakes Times. Here are three: A car blew past a stop sign in Hopewell causing a motorcycle to run into its side, ejecting the biker. In another Hopewell car accident, a woman pulled out from a stop sign without looking carefully, causing a car coming through the intersection to collide into her. And in a Canandaigua car crash, four vehicles (four!) were involved in a chain-rear-end collision on Routes 5 & 20.

Actually, these kinds of car accidents are all too typical. As a Geneva and Canandaigua New York car accident lawyer, I can tell you that 70 to 80 percent of my New York auto accident case load consists of either drivers failing to yield the right of way at stop signs, or drivers rear-ending the car in front.

The only somewhat unusual accident of these three is the four-vehicle chain rear-end crash. This is somewhat unusual during the summer and fall months with the good weather we have been having. Usually this kind of multi-vehicle rear-end collision happens in icy or foggy conditions where motorists are just driving too fast for those conditions. In fact, I am handling one right now, a Yates County collision involving four cars rear-ending one another in wintery conditions.

I don't remember any foggy or slippery conditions in the last few days, so the Canandaigua four-way rear-end collision has only two possible causes: The drivers involved either (1) were not paying attention (cell phones? Texting?) or (2) were following too closely. There really are no other possible explanations. A careful driver leaves enough space between his vehicle and the car in front so that he can easily stop in time, even if the front vehicle slams on the brakes. And a careful driver is always looking ahead, never at his phone or other device.

Keep safe on the road! Don't follow too close, and look where you are going.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

I came across an article in the Geneva Finger Lakes Times yesterday about a volunteer fireman responding to vehicle fire who was ticketed for "driving at an unreasonable speed" after failing to stop at a stop sign, going off the road, hitting a light pole and then a parked car in downtown Penn Yan, Yates County.

So here's the blog question of the day: Did this volunteer fireman, who was responding to an emergency (a vehicle fire), have a legal right to speed and go through the stop sign without stopping?

The answer is a qualified "yes". Pursuant to New York Vehicle and Traffic Law § 1104, the driver of an authorized emergency vehicle (e.g., police cars, ambulances, firefighters), when involved in an emergency operation, may not be held liable for New York car accidents when disobeying certain traffic rules, including speed limits and stopping at stop signs "except where he/she acted with reckless disregard for the safety of others".

As a Central New York car accident lawyer, I have reviewed many New York car accident cases in which emergency responders such as police officers or firefighters have crashed into private citizen-motorists when responding to emergencies. Generally, we must prove that the emergency responder acted with "reckless disregard" to the safety of the public. Plain negligence is not enough.

The issue in this case is whether the volunteer firefighter acted with "reckless disregard" in responding to this vehicle fire. Since he went off the road right in the middle of Penn Yan, in a 30-mile-per-hour busy downtown, there is some question as to whether he acted in "reckless disregard" to public safety. Sure, he had a right, even a duty, to go faster than the speed limit, and to go right past the stop sign, carefully, but he did not have the right to completely disregard the safety of the public.

Although the vehicle fire created a public hazard and danger, emergency responders should not be allowed to create even greater hazards or dangers in the manner of responding. The rule of law here tries to balance the need for our emergency responders to respond quickly to emergencies with the equally important need to ensure that the emergency response itself does not make matters even worse.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

It's nice to get a thumbs up. This is true when I bring my New York personal injury cases to the jury, and it is true in life generally. And I got a nice one yesterday. After I gave my annual update lecture on the topic of Municipal liability (how to hold a City, Town, Village, County, etc. liable in New York for personal injuries or wrongful death) to a room full of Rochester lawyers yesterday, I found this email awaiting me when I back home to Geneva:

Hello Michael. I . . . was in attendance today at the Academy's 2010 update. Despite it being such a long day, it was worthwhile. And you were definitely a highlight of the day's presenters. I thoroughly enjoyed your insights, and especially, your enthusiasm for your topic. You 'read into' the judicial mindset (I love to do that too) to get the largest sense possible of where the court is going ...that makes law more like a philosophy course, or at least, a true barometer of the way we humans organize ourselves! As always, it is fascinating. Found your website to tell you so--too bad you are not in Rochester full time! Our loss....thanks again.

Needless to say, that email made my day. And I obviously hope juries and judges find my New York personal injury case presentations equally compelling! Although I have had great results, so far no emails from them!

You can't be a New York personal Injury lawyer for very long without learning to hate insurance companies. I think it took me all of 6 months when I started out years ago to realize how brutal they were. You see, insurance companies "screw" good people all the time. Here's just one recent example of a guy who got screwed by the insurance industry.

The client injured his lower back in a car accident, but did not immediately seek medical attention because he wanted to see first whether he was going to get better on his own. When more than a month went by and he was still in pain, he came to see me. He wanted to know what his rights were as far as getting medical coverage to see a doctor. There was an uncomfortable pause while I thought about how to break the bad news to him.

Before I tell you what I told him, let me give you a little recent history of New York's "No-Fault Insurance" law. Only a few years ago, under No-Fault Insurance Regulation 68, auto accident victims had up to 90 days to file an application for no-fault benefits with their auto insurance carrier. (No-fault provides up to $50,000 in medical treatment and lost wages to car accident victims, regardless of fault.) But then the insurance industry lobbied New York State lawmakers to shorten the time limit to 30 days. The insurance industry claimed the shorter time limit was necessary to prevent "fraud", but that argument never made any sense to me. Instead, I believe the insurance industry knew that many auto accident victims would inadvertently wait for more than 30 days to fill out their no-fault application. The insurance industry would thus save millions of dollars by denying these legitimate but "late" claims.

This is only one example of how insurance companies, the same companies who regularly malign us personal injury lawyers, screw the public. Other examples, too numerous to list here, include (1) giving low-ball settlement offers, especially to accident victims who have not yet hired a good New York personal injury lawyer to fight for them; (2) denying perfectly valid personal injury claims; and (3) inducing accident victims, before they have time to hire a lawyer, to give "recorded statements" by promising them, falsely, that this will help the insurance company "resolve their claim", when in fact the intention is to torpedo the claim.

Insurance is one of the most heavily regulated industries, and for good reason. Can you imagine what they would be doing to us if they were not regulated? Too bad their lobby is so powerful that it weakens the government's overseeing role.

My client could not believe what he was hearing when I told him about the 30-day rule. As he put it, "I got screwed". He's not alone. Don't let them screw you! Hire a good New York personal injury lawyer from the get-go.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

As a Syracuse New York personal injury lawyer, I have received countless calls from Syracuse and Central New York workers injured at work who want to know, "do I have a case"?

When a worker calls and says they were injured on the job, here are, pretty much in order, the questions I ask them so I can figure out if they have a valid New York personal injury case: (1) Did you get, or are you getting, Workers' Compensation benefits? If the answer is yes, my next question is, (2) Were you injured because of something that a co-employee or your employer did wrong or is someone else to blame? If the at-fault person was a co-employee or the employer, the conversation usually doesn't go on much longer because the caller generally has no case. But if the caller says the accident was caused by someone other than the employer or a co-worker --- hey, now we have something to talk about.

Why does it matter whose fault it was? Because you can't bring a New York personal injury case against your employer, or co-worker, if your employer provided you with Workers' Compensation. Your case is barred by the New York Workers' Compensation Law. But, if you were injured on the job because of someone else's wrongdoing or negligence, you can bring a New York personal injury lawsuit against that person or company.

Who are the non-employer, non-co-workers who might be responsible for your injury? Usually they are: (1) other companies and their employees who were working on your job site or who installed or erected something at your workplace; (2) other companies or their employees if you were on their premises; (4) the manufacturer or distributor of whatever machine or other product injured you on the job site; (5) the owner of the premises where you were injured (if this is not your employer) or (6) in construction work, any other subcontractor or contractor who is not your employer, or the owner of the construction site.

If you were injured on the job by the negligence of someone other than your employer or co-workers, you are still entitled to workers' compensation benefits (from your employer's workers' compensation carrier) but you can, in addition, bring a New York personal injury claim against the at-fault non-employer, non-co-worker.

So do you get double benefits? No! The Workers' Compensation insurance carrier has a "lien" against any settlement or judgment you obtained in the personal injury claim. In other words, you have to pay Comp back out of your personal injury case for whatever medical bills and lost wages Comp has paid you.

Despite this legally required pay-back to Comp, you are still usually much better off if you can bring a personal injury action. Why? Because you can't claim pain and suffering in your Comp claim, and you get only 60% of your lost wages. But in your New York personal injury claim you are allowed to claim pain and suffering compensation and 100% of your lost wages.

If you are injured on the job, feel free to call me so we can figure out whether you are stuck with just Comp, or whether you have the right to bring a New York personal injury action as well. I am more than happy to talk to you, even if it turns out you don't have a case.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

My father was a bone doctor. He made his living putting broken human bodies, among them motorcyclists' bodies, back together again, kind of like "all the kings' horses and all the kings men" in that Humpty Dumpty rhyme. He was a loving, gentle father, and very seldom lost his temper. But there was one thing he was extremely strict about: "Mike, you are never to get on a murdercycle (his word for "motorcycle"), and if you do, and I found out, you will be severely punished". He made me promise I would not, and I did in fact promise. He had seen too many young men, dead and living, whose bodies had been broken to pieces in motorcycle crashes.

Well, I won't tell you if I ever broke that promise (I'll "take the 5th"), but I can tell you that, as a Syracuse NY Accident lawyer, I have almost the same perception as dad did about how dangerous motorcycles are. Recently, this has hit home pretty hard. A friend's husband left her widowed, and his three small children fatherless, when he died in a Cayuga County motorcycle crash. It is heartbreaking to see her struggling alone with such young children.

Whenever I represent an injured motorcyclist, or the family of a dead cyclist, in court, I am always concerned that the jury will feel that motorcycles are dangerous, too dangerous, and will want to blame my client for riding one, even if the accident was completely the fault of the car driver. In other words, I am afraid my father will be sitting on that jury!

New York Motorcycle law is very clear about this: The jury is not allowed to blame the motorcyclist simply for riding a motorcycle. The injured motorcyclist has the same rights as any another injured motorist. Although biking is more dangerous than driving a car, everyone has a perfect right to choose to ride a motorcycle, and to assume those risks. Although the jury can apportion some fault to the motorcyclist if he was driving negligently and this contributed to the accident, the jury cannot apportion fault to him based on the simple fact that he chose to ride a motorcycle. A motorcyclist who is struck by a negligent motorist is entitled to full recovery for his or her lost wages, medical expenses and pain and suffering.

I have a motorcycle accident jury trial coming up in the spring. As a Syracuse New York motorcycle accident lawyer, I know that one of my most important tasks is to carefully screen the potential jury members (in a process known as "jury selection") about their attitude toward motorcyclists. If I sense that someone out there has anti-motorcyclist biases, I will try to get them removed from the jury panel "for cause". The jury I do select will have to promise me that they will be fair and not blame the motorcyclist for simply exercising his or her right to enjoy the thrill and pleasure of riding a bike.

Sorry dad, but you won't be on my jury!

The top personal injury blogger in New York State, Eric Turewitz, had an interesting blog post today. He wrote about how, according to an ABC News article, the US Chamber of Commerce, one of the biggest corporate lobby group in the USA, plans to throw $10 Million at pro-"tort-reform" candidates this November. "Tort reformers", by the way, are people, usually insurance or corporate types, who don't think regular people should be able to seek justice in court against, among others, corporations whose defective products injured them. They want to put personal injury lawyers like me out of business.

But as Eric points out, there is hypocrisy in the Chamber claiming, on the one hand, that there are too many lawsuits (of the personal injury variety, or course), and on the other hand, the Chamber's threatening to sue the Obama administration's government to block any rules that hamper business. The Chamber's head honcho is quoted as saying, "litigation is one of our most powerful tools for making sure that federal agencies follow the law and are held accountable".

There sure is some irony in that position. And that reminds me of another Chamber of Commerce irony. Last year the Geneva NY Chamber of Commerce awarded me its "Citizen of the Year" award (you can read about it here). My partners in law, all terrific Central New York personal injury lawyers, found it hard to believe that the Chamber, which lobbies so hard against personal injury lawyers like us, was honoring one of us with its highest award. Go figure!

Last week, on September 28, tragedy struck in Oswego. One fishermen died, another is in critical condition, and several others narrowly escaped death. The men were fishing near the Varick damn in the Oswego River in the City of Oswego.

Several dams, used to hold back water to generate electrical power, cross the Oswego River. The lower section of the river, where it empties into harbor, also offers great fishing. When the water is to be released, which causes a sudden rise in the river, a loud siren is supposed to sound to warn the fishers.

But did it sound? And did it sound at the right time?

One of the fishermen who escaped harm was quoted as saying, "there was no siren discernable in relation to we ought to get out of there . . . There were sounds earlier, 45 minutes or an hour earlier - there was nothing in line with the water rising."

Toronto-based Brookfield Renewable Power Inc. operates the plant at the dam, and releases the water. A company spokesman says it has initiated an internal investigation focusing on, "when did [the siren] go off, how long did it go off and how many times did it go off."

That's surely the same questions the victims' NY personal injury lawyer, Jim Reed (Elmira, NY), will be asking.

The City of Oswego will hold a public meeting Wednesday evening 6 at the EconoLodge to discuss ways to improve safety for fishers on the Oswego River.

We hope Jim can get to the bottom of this and win justice for his clients, if in fact Brookfield Renewable Power acted irresponsibly, negligently or otherwise failed in its important duty to warn fishermen of rapidly rising waters. Jim is a fine New York personal injury lawyer, and I am sure he will represent his clients with zeal and dedication.

Syracuse medical malpractice lawyers are taking note: Upstate University Hospital has a recent demonstrated history of performing botched or erroneous surgeries. The lawyers at Michaels & Smolak know this first-hand. We have successfully sued Upstate several times, including a case two years ago which rendered a $2.5 Million verdict to an elderly Parkinson's patient who was paralyzed and brain damaged due to an avoidable equipment malfunction during brain surgery.

The Syracuse Post Standard now reports that an Upstate University Hospital neurosurgeon was recently suspended after he or she (they won't disclose the name) made an unnecessary incision. And not just a minor incision. Although the Hospital refused to disclose any further details, anonymous sources say that the unnecessary cut spans almost the entire length of the patient's back, whereas only a relatively small incision was needed.

This is yet another clear case of Upstate Hospital medical malpractice. And it's the third time since 2004 that Upstate doctors have blundered by cutting patients in wrong place, a totally avoidable error. In the other two cases, Upstate surgeons made an incision on the wrong side of a baby's head when attempting to operate on his brain and they operated on the wrong side of a patient in attempting to remove a tumor from an adrenal gland.

In recent years, hospitals around the country have been forced by regulators to adopt strict protocol to avoid wrong-site surgeries. Hospitals are required to call "timeouts" before operations in which doctors and others double-check that they are operating on the right person in the right spot. The target site must be pre-marked with markers.

Although wrong-site surgeries have decreased since these procedures were instituted, wrong-site surgery malpractice continues to be a problem at some hospitals such as Upstate. Apparently, Upstate is simply not forcing its doctors to carefully follow the protocol.

Upstate has had other recent malpractice woes. A recent State investigation unearthed numerous medical errors at Upstate, not the least of which was a case where an inexperienced neurosurgeon in training was allowed to perform a complicated spinal surgery without adequate supervision.