Central New York Injury Lawyer Blog

I have been a Central and Syracuse New York personal injury lawyer for many years now. So I have been around the block a few times. I am steeped in our civil justice system. And I have news for you: It works just fine. It ain't broken, so don't fix it. No "tort reform" needed, thank you.

Here's an example of how our civil justice system automatically weeds out frivolous lawsuits without the need for tort reform.

The other day I went to visit a farmer whose arm had recently been ripped off by a piece of farm equipment. I went to inspect the machine to see if the manufacturer was to blame. If the design was unreasonably dangerous, and the dangerous machine caused the accident, the farmer would have had a good New York products liability claim to compensate him to the tune of several million dollars.

As it turned out, there was nothing wrong with the machine; the farmer had simply made a mistake. He should have shut the machine off before he climbed into where he did to fix a mechanical problem. We all make mistakes, and unfortunately this one cost him dearly.

So guess what? I did not file a frivolous claim. And my farmer friend did not ask me to file a frivolous claim on his behalf. He understood and accepted my explanation as to why he had no claim. He was grateful to me for having explained how the law works and why he had no case.

Even if I had been an unethical lawyer who wanted to file a frivolous claim, I would not have filed the frivolous claim. Why not? It would have made no economic sense. The claim would have cost me lots of money and time and would have eventually been dismissed. And no, the manufacturer would not have paid us big bucks to go away. He would have paid us nothing, or next to nothing, and certainly not enough to pay for my time and expenses on the case.

This case is no different than any other in this regard: It never makes any economic sense to file a frivolous claim.

Real flesh-and-blood personal injury lawyers (as opposed to the figments of tort reformers' imagination) live by this refrain: "you make money on the cases you turn down". What this means is that you can only make a living in this business by turning down frivolous cases, and taking only legitimate ones.

So please contact me if you believe you may have a legitimate New York personal injury claim.

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 have been blogging lately about gas explosions. That's because gas explosions keep happening! As I said in my last few blogs about this topic, our natural gas supply system, owned and maintained by private utility companies, is aging and not being properly maintained and replaced by those companies. As a result, we are seeing an increase, nationwide, in natural gas explosions. Just a few weeks ago a main gas line explosion rocked Philadelphia, killing at least one person and severely injuring others. And last fall, a main gas pipeline explosion in California destroyed 38 homes, injured 50 and killed eight people.

But gas explosions strike closer to home, too. This week a house exploded in Horseheads, NY. According to Elmira New York personal injury lawyer Jim Read, preliminary indications indicate the cause was a natural gas leak. Also according to Jim, the house is less than 1/2 mile from another house that exploded because of a natural gas leak in a NYSEG service pipe a few years ago.

Also, just this week, the parents of one of the victims (a 20-year old college student) of the Fall 2010 natural gas pipeline explosion in California filed a wrongful death lawsuit against an (ir)responsible utility company, Pacific Gas & Electric Co. Their daughter died from the horrific burns she received while trying to escape the blaze in her home caused by the explosion. In the lawsuit, her parents are claiming the defendant PG&E failed to properly inspect and maintain the pipeline.

There has been a lot of talk about "tort reform". But so-called "tort-reformers" should ask themselves this question (and honestly answer it): If your 20-year old daughter died a horrific death by fire because a utility company decided to increase its profit margins by cutting gas pipe maintenance costs, would you sue? And if you sued, would you expect any fair system of justice to compensate you fully for your daughter's pain and suffering and your grief and loss? If your answer is "yes", then you should think again about "tort reform".

Keep safe!

Mike Bersani

You can 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 Central and Syracuse New York personal injury lawyer who takes on only legitimate accident claims, I resent, despise, disown, and spit-in-the-general-direction of all frivolous personal injury lawyers and their frivolous lawsuits. They give my bonafide injury lawsuits a bad name. And they give all legitimate personal injury lawyers a bad name.

Yes, I hate frivolous claims, but I also dislike so-called "tort-reformers". Most of them have self-interest at heart; they work for or represent big insurance companies or businesses who stand to gain by taking away the little guys' right to hold big business liable in court for their careless safety shortcuts that injury innocent people. To dupe the public into believing our time-tested tort law is a problem, they blow out of proportion the very few "frivolous lawsuits" that are filed, and try to convince the public that all or nearly all, personal injury lawsuits are frivolous.

So, since I despise frivolous lawsuits, and I also dislike tort-reformers, I should doubly despise and dislike frivolous personal injury lawsuits filed by tort reformers, right? What? A tort reformer filing a frivolous accident lawsuit? Yes, you heard me. An editorial in the New York Daily News the other day criticized conservative Republican New York State Senator James Alesi, a self-proclaimed "tort-reformer" (he represents the Monroe County towns of Chili, East Rochester, Henrietta, Irondequoit, Mendon, Penfield, Perinton, Pittsford, Riga, Rush and Wheatland, and portions of the City of Rochester) for filing a frivolous lawsuit.

And boy was it ever frivolous! Here are the facts: While out looking to buy a home, Alesi and a friend tried to enter a partially built house that was already sold to someone else. Since the door was locked, they looked for, and found, an unlocked basement door. The stairs were not yet built, but they found a ladder that led from the basement to the first floor. Alesi fell and broke his leg while climbing the ladder. He later sued the homeowner (whose home he had basically burglarized!) and the construction company who had left the ladder there.

Alesi's fellow conservatives so harshly criticized, mocked, disparaged and heckled him for filing the bogus claim that he recently withdrew the case, saying, "I filed the suit without regard to the anxiety that it would cause the homeowners, the builders or the community where we live, and I'm sorry for that".

He forgot to mention the anxiety his frivolous claim caused me, and other legitimate New York personal injury lawyers.

The New York Daily News editorial concludes that Alesi will "go down in the annals of political hypocrisy". You can say that again: A so-called tort-reformer who was willing make a few bucks for himself by filing a frivolous claim, but is unwilling to allow accident victims whose lives have been ruined by corporate negligence to file legitimate claims.

If you have a legitimate claim, call me, or 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

Mystified by how a New York personal injury lawyer knows how much a case should settle for? Let's demystify the process. I'll walk you right through it!

The first step for determining the settlement value of a case is to wait. We have to wait until either the client is either done treating or has reached "maximum medical improvement". When that happens, we can look back at all the client have been through and decide what the pain and suffering is "worth". Also, at that time we will know whether the client has any "permanency", meaning whether she is going to continue to suffer for the rest of her life. If her doctor says the condition, pain, or disability is "permanent", then we can claim pain and suffering compensation for the client's natural lifetime.

The next step is to look at what other juries have awarded people with similar injuries. We can figure this out both by looking at past verdicts we have gotten in court for our clients, and also by cases we have read about. All lawyers in our office read religiously a weekly publication called the "New York Jury Reporter" which describes in detail plaintiffs' injuries and what juries have awarded for them.

Next, we must consider the probability of winning or losing at trial. Guess what? We don't win all our trials. No one does. Some cases are tough to win. If we believe we have a 100% chance of winning (this is rare!), then the settlement value of the case is 100% of the "full value" of the injury. But if we believe we have a 20% chance of losing at trial (because the facts of the case might cause a jury to find that the defendant was not responsible for causing the injuries), then we reduce the value of the case by 20% for settlement purposes.

Example: The full value of the injury is $100,000, but there is a 20% chance of losing at trial. Therefore, the settlement value is $80,000.

Next, we take into account where the case will be tried. Juries in certain big-city venues, such as Buffalo or NYC, tend to give much bigger awards than rural venues such as Cayuga County. We adjust the settlement value up or down according to where it is being tried.

The final step is to check with the client. We can't, and won't, settle a case for any amount below that which the client will accept. If the client insists that the case is worth more, despite our careful analysis, we will probably end up at trial. Insurance companies are just as good at figuring out the settlement value of a case as we are, and they generally won't pay more than the fair value of the case in settlement. They would rather take their chances at trial.

So now you know how we New York personal injury lawyers figure out what a case is worth. If you want us to calculate what your case is worth, call for an appointment.

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 earlier today about the Savannah NY school bus collision with a snowplow. From the news reports I had at that time, I did not know any facts about the case, other than that there had been a collision. More recent news reports indicate that the school slammed into the rear of Town of Savannah snowplow. The school children with the most seriously injuries were all sitting in the front seat on the right side of the bus. Two students were trapped in the bus for about half an hour. The bus driver was also trapped. Sixteen children were taken to nearby hospitals. All the students were in 5th or 6th grade.

Apparently, the bus had just dropped off some students at Clyde Elementary School and then proceeded down Route 31 to drop off the rest at Savannah Elementary School. At some point, the bus slammed into the rear of the snowplow, which was, in fact, engaged in plowing activities. News reports say the crash happened near the top of a hill, with snowy fields nearby. Investigators speculate glare from the sun on the snow may have affected the bus driver's ability to see the plow.

Under New York motor vehicle liability law, however, a driver who rear-ends another vehicle is almost always held legally liable for the collision. Drivers have a duty to see what is there to be seen, and if they have difficulty seeing because of glare or other factors, they should stop, pull over, or proceed slowly with extreme caution. Rare is the case where a rear-ending vehicle's driver escapes liability in court. Therefore, it seems likely here that the bus driver was at fault, which makes the school district employer liable to all the injured children. The school district's insurance should cover this unfortunate accident. But, as I mentioned in my previous blog, the children are required, under New York law, to serve upon the school district a "notice of claim" within 90 days of the accident.

As the father of a 6th grader myself, I can imagine the horrible time the parents are going through. And it must be awful to have to start thinking about getting a lawyer at this time. But the fact of the matter is, there is not a lot of time to waste. An investigation should be done immediately before the conditions change too much, and the notice of claim should be prepared and then served within the 90 days. The children, especially the most seriously injured, may have to live with their injuries for a long time, or maybe even for life. They may not only be entitled to compensation; they may need it as well.

Parents: Hug your kids!

Mike Bersani

Email me at: bersani@michaels-smolak.com

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

News sources say several people were injured when a Clyde-Savannah school bus, packed with 22 elementary school children, and a snowplow collided on Route 31 near Hogsback Road in the Town of Savannah, New York at about 7:50 this morning. A woman, apparently the bus driver, and an 11-year-old boy, were airlifted from the scene to Upstate (SUNY) Hospital in Syracuse. The woman is apparently in critical condition. Eight ambulances and two helicopters reported to the scene.

Our hopes to a speedy recovery to all victims. As the father of 5 children, I can feel the worry, pain and anguish of the parents! And as a lawyer, I have already started to think about this unfortunate accident from a legal perspective. Here are some complications that I see, from my perspective as a Central New York and Syracuse car and bus accident lawyer, in this school bus accident case:

In New York, if the snowplow driver was on the job removing snow or salting for a municipal employer, such as the County, and was "actually engaged in work on a highway", under Vehicle and Traffic Law § 1103(b) the injured victims can only prevail in court if the snowplow driver was driving in such a careless manner that it amounts to "reckless disregard" to the public. But as to any claim against the school bus driver, a mere "negligence" standard applies. Therefore, for the injured children to get liability compensation for their injuries, they are going to have to show that either the bus driver was "negligent" and/or that the plow driver was "reckless", unless the snowplow driver was not working for a municipality, or was not actually engaged in plow work at the time, in which case the injured victims will have to show only that both or either the plow driver or the school bus driver were "negligent". Complicated? You bet.

By the way, the injured will all be automatically entitled, regardless of whether anyone is found negligent or reckless, to $50,000 in medical benefits and lost wages (if there are any) combined under the no-fault insurance policy. But beyond that, to bring a claim for additional compensation, such as more medical treatment, or compensation for pain and suffering, the rules discussed above will apply.

Complicated enough for you? Well, there's more. Before the victims can file any lawsuit against a municipality (such as a county, town, school district), they have to serve upon them a "notice of claim" within 90 days of the accident. So these injured children, and the school bus driver too, if she is going to bring a claim, have only 90 days to get this done! Time is short. If they don't do it in time, their lawyer can always ask the court to forgive the lateness, but they should not risk that unless they have to.

Word of caution to all the victims of this terrible bus/snowplow crash: Get to a qualified New York personal injury lawyer, especially one with experience handling car and bus crash cases, as soon as possible.

Read also this past blog post regarding New York bus accident cases.

Feel free to email me about this case or call me:

Mike Bersani

Email me at: bersani@michaels-smolak.com

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

Gas explosions have caused some of the worst injuries I have ever seen in my career as a Central New York personal injury lawyer. They are what I call a "double whammy" - they cause terrible crush injuries (because buildings collapse on the victims) and just as terrible burn injuries (because of the explosion and fire). As a Central New York gas explosion lawyer, I have been representing 9 clients whose home exploded when a propane gas leak filled it with gas. Human cost? One dead, one paralyzed from the waist down, one whose legs are crushed beyond belief, and left 7 others with serious burn and crush injuries.

So today when I read about the huge gas main explosion in Philadelphia that killed a utility worker and left three co-workers in critical condition, I felt connected to those poor workers. They will have the same kinds of injuries my clients have. And I also feel proud of them. The workers had responded to a report of gas odor, found the leak, and were attempting to repair it. They probably knew the danger, but stepped up and did their duty.

A TV news channel caught the explosion on film.

Gas main explosions like this one are on the rise. Maybe you remember the terrible blast last September in California. Why are they on the rise? Our underground gas pipes nationwide are aging, corroding, and just plain falling apart. Yet utility companies apparently aren't in a hurry to replace them; that costs money and eats into profits. So, one might ask, why doesn't government step in and force their hand? Unfortunately, our government largely leaves it up to utility companies to inspect their own gas pipes and decide whether and when to replace them.

So where does that leave the rest of us? Simple: in harm's way. And there's not much we can do about it either. You can't go out into your street, dig it up, and inspect those pipes yourself. But if you get hurt in a gas explosion, you sure can sue.

Every single gas explosion I have ever been involved in as a New York gas explosion lawyer, or read about, could have been avoided if everyone, including the gas companies, had followed proper and safe gas explosion prevention practices. Unfortunately, more often than not, cutting corners, and cutting costs, wins out over safe practices. And that's why we need good gas explosion lawyers --- to get justice for the burned, crushed, broken dead and injured victims of preventable gas explosions.

I'm proud to do my job!

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

When you are injured and can't work and don't have any income, life gets ugly fast. You can't pay bills, so bill collectors hound you. You have to say "no" to all those little extras for the kids. You might even end up losing your home to the bank in a foreclosure action.

And when you have a pending lawsuit against the negligent person or company that injured you and caused all these losses, and your New York personal injury lawyer says you should eventually get a nice settlement or money judgment, you want to reach out into the future and grab some of that money now, to pull yourself back up above water.

So when a lawsuit lending company offers you a loan that you only have to pay back when and if your New York personal injury lawsuit settles or you get a monetary judgment, it seems like a life-line.

But things aren't always what they seem.

I have blogged about lawsuit lending before. There, I said, and I repeat, that I don't recommend to my personal injury clients that they use lawsuit lenders unless they have exhausted all other means of getting loans, including from family and friends, and they absolutely can't get by without the cash.

Apparently, many people agree with me. Here's a new on-line article explaining how lawsuit lenders can rake desperate injured plaintiffs over the coals. In one of the cases the article discusses, the injured plaintiff borrowed $9,150 from a lawsuit lender, promising to repay the loan from the proceeds of his eventual settlement or judgment against the folks whose negligence injured him. But he should have read the fine print and done some math. It turns out that, because of the high interest rate, by the time he got paid on his personal injury case a year and a half later, he owed the lender $23,588. And his settlement was for only $27,000. He got peanuts from the case.

How could that be? How could they charge him so much interest? Can banks and lenders get away with that? Isn't that called "usury" and isn't it illegal?

If this had been a normal bank-to-person loan, it would be illegal. Interest rates and lending practices are strictly regulated to protect the consumer. But lending to injured plaintiffs who are willing to use their lawsuit as collateral is a fairly new practice, and our old laws don't cover it. In fact, the lenders make damn sure that what they are doing does not technically qualify as a "lending" at all so that they are not regulated by the rules prohibiting exorbitant loans with interest rates. The way they do this is by providing that the plaintiff need not repay the money if they lose the case. (There is no way most injured plaintiffs could repay the loan anyway if they lose the case, so this is not much of a concession). Since the money need not be repaid unless you win a settlement or monetary judgment, lawsuit lenders claim what they are doing is not "lending" at all, but rather "investing" in the case, at a substantial risk. This, they say, justifies the exorbitant "rates of return" (it's not "interest", they say, since it is not a "loan" but rather an "investment").

But in reality, lawsuit lenders screen very carefully the cases they will lend on, and usually shell out the bucks on the slam dunks, or near slam dunks, and take little risk at all in exchange for those high interest rates ... er I mean "rates of return".

Some States, including New York, are starting to catch on --- and have begun to regulate lawsuit lending. But it's still pretty much a free-for-all out there. That means, buyer beware! Until the law catches up with lawsuit lending practices, my advice to clients is: (1) read the fine print; (2) calculate very carefully just how much money you will end up paying the lawsuit lender overtime; (3) ask yourself, "is it really worth it" and "can't I get by without this for now"?

Be careful!

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 Central New York personal injury lawyer blogged a few weeks ago about building owners' liability for falling icicles and ice. Those big pointy slabs of ice can kill people, and the building's owner can be held liable for negligence in failing to remove them or prevent them from forming.

Now you godda love this guy from North Syracuse, who invented and patented his own do-it-yourself icicle remover. The story, as reported in the Syracuse Post Standard, is that he came across the idea of his "deicicler" while having a hard time knocking icicles off his roof. Hit the link and take a look at it. It is basically a lightweight flat shovel, but with holes in it to encircle the icicles and pull them down.

I am hoping this will be a safe way for do-it-yourselfers to remove icicles from their homes and stores. This is not only great protection against liability, but also will prevent the ice from damning up, getting under your shingles, and ruining your roof.

A guy I'll call Joe, a construction worker, rolls into my Auburn, New York office in a wheel chair with his three kids, wife and mother in tow. He has come to consult with one of the Central and Syracuse New York personal injury lawyers of Michaels & Smolak. Let's say Joe fell from 100 feet up when a scaffold collapsed, and landed on his feet. Let's say an xray view of his knees and ankles show bones that look like granulated sugar. Let's say he will never be able to walk, much less work, again. Let's further assume he is only 43 and was supporting not only his wife and 3 kids, but his mother, who lived with them. Who can sue the negligent contractor responsible for the scaffold collapse? Of course Joe can sue, but can any of his family members, too?

When you think about it, all these family members were "injured" when Joe was injured. Joe's wife now has to care for him. And she's got to take out the trash herself, mow the lawn, and shovel the snow. Also, her husband is in so much pain he hardly even thinks about sex, so she is deprived of his conjugal love. Can she sue for these losses?

And what about Joe's three kids? Their dad used to play with them, hold them, and bounce them on his knee. He used to bring home a nice wage and would buy them nice things, and was saving up for college for them. All that is gone. Can they sue?

And what about Joe's mom? Joe can't support her at all anymore. Now she has to go live in a State-funded nursing home. Can she sue?

The answers? yes, no and no. Wife can sue, kids can't, mom can't. Why? New York personal injury law inherited its main principles from English common law. Traditionally, a matrimonial couple was considered "one person". The law recognizes that when one is hurt, both are hurt. So the law allows both the injured spouse and the "uninjured" one to sue. The suit by the "uninjured" spouse is called a "derivative" claim, or a "loss of consortium" claim.

But the law does not recognize a "derivative" claim for the kids or mom.

But even though Joe's kids and mom can't sue, when you think about it, Joe can, in a way, sue for them. After all, if he recovers his lost wages in Court, he will have the money he needs to continue supporting them as he did before. If the jury does what's right for Joe, they have also done what's right for his family.

But even so, New York personal injury law fails to compensate some of those family members' losses. Under our law, no one can ask the jury to compensate the children's loss of a knee to bounce on, or of a dad who can run around and throw footballs at them. Joe can ask for compensation for his own heart break in not being able to provide these things to his kids, but the kids' own emotional loss will forever remain uncompensated under our law.

Just like human beings, laws are not perfect. Maybe that's because imperfect humans make them. Still, New York personal injury law is pretty good. And every day this Central New York personal injury lawyer is proud to harness the power of that law to help his clients get the compensation they deserve.

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

I guess some folks are just born mean, grow meaner, and keep on being mean right through old age. A little over a year ago, an 80-year-old mean-to-the-bone guy from Fulton, William L. LeVea, got drunk, jumped in his car, found a reason to get enraged at another motorist, and then hunted that motorist down, repeatedly ramming him from behind until the poor guy lost control and swerved into the lane of an oncoming motorist. The bullied motorist died from the collision, and the oncoming motorist got seriously injury. I blogged about the case last year (click here to see). The Central and Syracuse New York auto accident lawyers of Michaels & Smolak, led by attorney David Kalabanka, represented the oncoming motorist in the motor vehicle accident case.

LeVea's victims, and their families, can breathe a sigh of relief today --- LeVea finally pleaded guilty to the road-rage related charges, including aggravated vehicular homicide, and will get six to eighteen years in jail. He will be sentenced on March 2.

Goodbye and good riddens Mr. LeVeal. I hope you (don't) enjoy your last years rotting in a State prison. By the way, your victims and their families will oppose any request you ever make for early release, so unless you have the longevity of a sea turtle, you might as well order your casket special delivery to the prison.

Although Central New York has been blanketed with the white stuff since back at the beginning of December, it has been a quiet season for snowmobile accidents. In an average year, there are between 300 and 400 snowmobile accidents in New York State, with about 25 fatal ones. I could be wrong, but I think New York snowmobile accidents are down this year, and that's good. I say this because I have read about only one minor sled accident this year, and that's unusual.

The one reported snowmobile accident was on January 9, in West Turin, Lewis County. Two snowmobilers going too fast lost control of their sled at a curve near Smith Road, careened down a steep embankment, and received minor injuries.

The decrease in snowmobile accidents this year could be due to one of three things (or a combination of all three!): (1) less snowmobiling (high gas prices?); (2) dumb luck; or (3) snowmobilers are finally embracing the safe snowmobile practices endorsed by law enforcement, as well as this Central and Syracuse New York snowmobile accident lawyer. Click the link to see my snowmobile safety tips.

Snowmobilers, don't rely on dumb luck. Follow my safety tips!

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

I represent a guy who was badly injured in a Central New York car accident. After all discovery had been exchanged, and the parties had been deposed, I felt I had a pretty good shot at getting "summary judgment" for my client establishing that the other driver was 100% responsible for the collision, and that my client had no fault at all. "Summary Judgment" means that the right answer about who was at fault is so clear that it doesn't even have to go to a jury. If a plaintiff gets "summary judgment" on liability, it means that the jury does not have to decide whether the defendant is responsible (the court already decided that) but only how much the case is worth.

I lost the motion. The trial judge ruled that there were "issues of fact" for a jury to decide regarding whether my client was also to blame for the accident.

I hate losing. But "sucking up" loses from time to time is part and parcel of being a Central New York car accident lawyer. And don't believe any lawyer who tells you he or she has never lost a case. If they are handling tough cases, or any significant volume of cases, they have to lose from time to time.

After the court denied my motion, the lawyer representing the defendant offered to settle the case, but with a 30% discount. He believes my client is 30% responsible for the accident, and that his client is 70% responsible.

After discussing this proposal with my client, we decided to reject the offer, and take an appeal instead. If I win on appeal, the defendant's lawyer will no longer be asking for a 30% discount. He will have to pay us the full value of the case. It's worth a shot!

While it is always hard to predict what an appellate court is going to do, I feel we have at least a good shot and getting a reversal of the trial court's ruling, and having the appellate court rule that my client was free of fault, and that the other driver was 100% responsible.

I will be going up to Rochester to argue the appeal in a few weeks. My client and I are both crossing our fingers. Wish us luck!

It's nice to win. And this Central and Syracuse New York personal injury and wrongful death lawyer recently won an appeal for the widow of a wrongful death victim in a Syracuse wrongful death lawsuit. The case is about a tragic accidental death that got extensive news coverage all over New York State. I have received phone calls from lawyers from other parts of the country about this case. Some have asked me for copies of my arguments (Brief) in the appeal.

What's the case about? I am not at liberty to discuss the facts of the case in this blog for reasons I will explain below.

But first let me tell you that this was the second time the appellate court reversed the trial court in this case. Each time, the trial court had thrown my case out, and each time the Appellate Court reversed and reinstated it. I am sure the trial judge did the best he could each time. But the case involves difficult, novel New York wrongful death legal issues, and even I did not know how the Appellate Court would resolve them. I feel fortunate to have won, twice now. And guess what. A third trial court decision is coming, and after that, a third appeal. How do I know? Well, I know I will appeal if I lose, and the defendants will do the same if they lose. It is a big case. Both sides are giving it all they've got, fighting tooth and nail.

Now here's why I can't give you more facts about this case: After I won this second Appeal, a Syracuse TV reporter called me and asked if she could come out to my office in Auburn and interview me for a News story about the case. I told her, "I'll check with my client to see". I did check with my client, the wrongful death victim's widow. She did not want me to talk to the press. So I called the reporter and said, "no thank you". And that is why I am not at liberty to tell you about this case. I don't believe my client would like me too discuss it here, since she did not want me to talk to the press about it.

Would I have rather been on TV? Yes and no. "Yes" because it would have been good publicity for my firm and me, and might have attracted other Central and Syracuse New York personal injury and wrongful death cases to my firm. But "no" because I really don't like trying my cases in the press, either. I am kind of like my client. I like to keep a low profile and quietly go about seeking justice for my clients.

In any event, the important thing is to respect the client's wishes. A lawyer has to remember that the client's interests always come first.

As a Central Syracuse New York products liability lawyer, I take a keen interest in news about dangerous products or false safety claims by manufacturers. That's why an article in the New York Times caught my eye yesterday. The article talked about how United States Senator Tom Udall (Democrat, NM) is formally requesting that the Federal Trade Commission investigate the alleged deceptive advertising practices of sports helmet manufacturers.

The senator says two major helmet manufacturers, Riddell and Schutt, have been fooling the public with their claims to increased concussion prevention. But Udall has his crosshairs mostly on Riddell, whose ads claim that that its "Revolution" helmets decrease the risk of concussions by as much as 31 percent. This 31 percent figure is deemed deceptive because the "Revolution" helmets were compared with second-hand helmets in unknown condition and with unknown manufacture date.

The advertising is clearly aimed at cashing in on parents' increasing worries about the long-term effects of concussions on their child-athletes
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Deceptive safety claims in advertising are not new. The truth is that unsafe products are often marketed and sold as safe. Think about the tobacco industry and how they continued to claim that their cigarettes were safe even years after the entire medical community had determined they were not.

Let's face it; companies often fail to give full and proper warnings about the dangers of their products. Why? In a word, "money". They can sell more products by keeping their customers in the dark about the dangers that lurk beneath the smooth veneer of their products.

How can we dissuade companies from deceptive safety claims? Two ways: Strict government oversight, with heavy fines for deceptive practices (thank you Senator Tom Udall!) and product liability lawsuits (my job!).

When weighing the pros and cons of making exaggerated safety claims, companies place increased sales earnings on the "let's do it" side of the scale. New York product liability lawyers like me sit on the other side of the scale, the "you'd better not" side. And I'm pretty proud to be sitting here.

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

You have probably heard or read about the recent tragic accident on Sugarloaf Mountain in Maine. A chairlift cable derailed sending several skiers plunging into the snow-covered slope below. Luckily, a generous snowfall had recently blanketed the Mountain, and that helped pad the landing. Still, several skiers are recovering in local hospitals. We wish them well.

What caused the derailment? We still don't know. But one thing I can tell you as a New York personal injury lawyer; the Sugarloaf folks are almost certainly liable (unless the chairlift system was defectively built or designed, in which case the manufacturer would be liable). An "accident" like this does not happen without some negligence. My very educated guess is that the Sugarloaf folks failed to properly inspect or maintain the chairlift, or they allowed it to operate in unsafe weather conditions (winds of 40 miles per hour were reported).

This accident demonstrates an important principle in New York sports injury law: While those who voluntarily participates in a sport such as skiing are deemed to have "assumed the inherent risks" of the sport, and therefore can't sue for injuries caused by those risks (see my prior blog post about this here), when the risk that caused the accident is not one of those inherent in the sport, they can sue.

For example, if you are skiing and hit a patch of ice, or a tree, or another skier skies into you, you would, in most cases, be barred from suing the Ski Resort. Those are all dangers inherent in the sport of skiing, and if you don't want to "assume" those risks, well, put those skis back in the attic!

On the other hand, you have a right to assume that the mechanical lifts that bring you to the top of the mountain are safe, well maintained, and aren't going to derail and send you hurling to the ground. A derailing ski lift is not one of the risks inherent in the sport of skiing. Rather it is a risk caused by the Ski Resort not fulfilling its duty of maintaining and operating safe machinery!

If you or a loved one has a possible New York sports injury case, you should consult with a New York sports injury lawyer to see if New York law will deem you to have "assumed the risks" of the injury or not.

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

One of the advantages/disadvantages of my job as a Central New York and Syracuse personal injury lawyer is that I am acutely aware of all the dangers lurking out there. The "advantage" is that I avoid some dangers most people don't even think about. The "disadvantage" is that I worry too much! For example, when the weather is getting warmer, and I see icicles, I am careful to avoid walking under them. If I have to pass under them, I do so quickly, and I keep an eye on them.

With the weather freezing and then warming in Central New York, icicles can be dangerous. The warming weather can loosen them. They can then fall like heavy spears on your head. Icicles can weigh as much as 500 pounds. Back in 1978, a block of ice weighing several hundred pounds fell off the Cathedral of the Immaculate Conception in Syracuse, and killed a young woman who just happened to be walking along the sidewalk.

You may be wondering about liability for falling icicles. New York falling-icicle liability law is really the same as for any New York premises liability case. An owner of a property has a duty to maintain the property in a reasonably safe condition, and to correct unsafe conditions he or she is or should be aware of. This includes posting reasonable warnings.

The first step to avoid falling ice liability is take reasonable measures to avoid icicle formation. No icicles, no liability! It's that simple. Icicles usually form because of improper ventilation or insulation in the attic, which causes some areas of the roof to warm. The warm roof melts snow, which then turns to water and runs down the roof until it reaches the edge or gutter, which is usually colder, causing the water to freeze. And, voila! An icicle is born.

But if you already have icicles, it is too late to try to prevent them from forming. In that case, if they are particularly large and heavy, and located above areas where people walk, the right thing to do (and to avoid liability) is to hire a good contractor to remove them. (Don't try this yourself if you don't have the proper equipment and experience -- it's too dangerous!). In the meantime, you should post large, visible warning signs and, if possible, tape off or block the areas around the building where icicles are at risk of falling on pedestrians.

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