Central New York Injury Lawyer Blog

One of New York's appellate courts (Second Department) recently held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If they don't, a heart attack victim can sue them for failing to act. You can read the case here.

Since I am both a Central New York personal injury and wrongful death lawyer, and am on the Board of the Auburn, New York YMCA (former president of the board), I took a keen interest in this ruling. I also immediately informed the Y's CEO about this case. After all, it's one thing to require that health clubs have such devices available, but quite another to require that staff actually make a judgment call about when and whether to actually use them, and to be subject to wrongful death lawsuits if they fail to act properly.

Here are the facts of the case before the court: A racquetball player at a fitness club collapsed, a fellow player reported it promptly to the front desk, and the front desk immediately called 911. While they waited for the ambulance, several employees, with AED in hand, hovered over the stricken player, checking his pulse, but they never actually used the AED. The ambulance arrived in only a few minutes later, which may explain why they never used the AED. But the guy died at the hospital, and his family blamed the fitness club for not using the defibrillator.

While the Court noted that the Statute on the books (Business Law 627-a) requires only that AEDs be "on-site" at New York health clubs, and does not specifically mandate that Club employees use them, the Court read between the lines, holding that it was "illogical to conclude that no such duty exists".

Makes sense. By the way, the use of an AED is simple and clear and requires no significant training.

Health Clubs beware! Let's hope this requirement saves lives (it probably will!).

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

Fellow New York Bicycle accident attorney Jim Read reports in his blog that a Bill making its way through congress would, if made law, remove bicycling from the federal transportation program. As Jim notes, it would set us bicyclists back many years in our efforts to get government roadway designers and planners to consider bicyclist safety when designing and upgrading roadways.

The Bill is called "the American Energy and Infrastructure Jobs Act". Among other things, the proposed law would allow states to build bridges without safe access for pedestrians and bicycles and eliminate bicyclists' status and standing in the planning and design of our transportation system. This heavily auto-biased program would also endanger funding for our safe paths, bike lanes and bikeways.

If you are a bicyclist and want to stand up for your rights, go here to find your local representative and send them an urgent message.

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 read in the Pop Tort that Erin Brockovich appeared on HLN's Dr. Drew Show to talk about the cluster of Tourette's like symptoms hitting teenagers in Leroy, NY. It turns out that in 1971 a train derailed and dumped tons of cyanide and TCE, which was never cleaned up, in the area where these kids have gone to school all these years. Brockovich's skeptics are saying, hey, if this spill happened all the way back in 1971, why are kids turning out with these symptoms only now? Her response is that there have been similar symptoms in the past, but back then these kinds of ailments were not consistently reported or diagnosed, and also back in the early days of the spill, many parents told their kids not to drink the water around the school area.

This brings to light one of the main hurdles New York toxic tort lawyers face: Proving "causation". It is often easy to prove negligence in causing the spill, or in failing to properly clean it, but how do you prove that exposure to the toxic substance caused your client's cancer, or Tourette's syndrome, or other ailment, when those diseases or syndromes appeared many years later? You will probably find experts in the field who will hold that opinion, but many times the evidence they rely on is not firmly established, and defendants' experts will say, hey, wait a minute, lots of other stuff can cause cancer or Tourette's-like symptoms, and your proof that this spill caused it is merely speculative! Many judges will toss the case before it ever gets to a jury.

But that doesn't mean you can't win one of these cases, and it especially doesn't mean that the toxins emitted by corporate America are not killing us and making us sick. They are, and we known, and they know it. The only question is, can we prove it in court. . . .

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