March 2012 Archives

March 31, 2012

Brain Injured Snowmobile Accident Victim Paints For CNY Injury Lawyer.

20120331_145723.jpgSome of our former Central and Syracuse New York personal injury clients become lifelong friends. One example is Mary. Even six years or so after we settled her case, she keeps in touch, stops by the office, and emails us regularly.

Mary suffered a terrible traumatic brain injury ("TBI").. She was a passenger in a snowmobile that collided with another snowmobile. About 6 years ago, my partner, David Kalabanka, got her a 7 figure settlement against the responsible party's insurance carrier and worked out a structured settlement that will pay her several millions of dollars, in monthly installments, over the rest of her life. David did an awesome job representing her.

Mary can't work a conventional job. No one would hire her. Her brain injury has left her noticeably "different". She talks with an unsettling voice and intonation. She speaks whatever she thinks, and this, of course, is not socially acceptable. She sees double, too.

It's easy to take advantage of Mary, and many people do. Why? She has a big heart, a good monthly income (from the structured settlement), likes helping, is lonely, and wants friends. Her brain injury has left her without a healthy skepticism about people's selfishness. It's easy to talk her into buying you stuff. And doing free work. She'll clean your house, or paint it, for free, just to be your friend.

Mary likes to paint. My wife and I needed our bathroom and kitchen repainted. So we invited her over. Here she is, in the photo, removing the wallpaper from our bathroom. She offered to do the job for free, which will take about a week, but I of course insisted on paying her the going rate. I just hope she spends it on herself and not on what others talk her into buying them.

By the way, "Mary" is not her real name. I am so afraid people will take advantage of her that I have changed her name and used a photo that does not show her face.

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 Traumatic Brain Injury Lawyers
Michaels & Smolak, P.C.

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

March 27, 2012

Cornell University Student Suicides - Can Cornell Be Held Liable?

Anyone familiar with Ithaca is also familiar with the ubiquitous bumper sticker and City slogan "Ithaca Is Gorges". Bridges span those gorges, right on or near Cornell University's campus, and students traverse those bridges by foot on their way to and from classes and town. When you combine Ithaca's gloomy climate with the Ivy League pressure cooker, it's no surprise that many of those students (a Cornell study says about 15%) frequently contemplate suicide, including jumping from the bridges. And over the years, many have! More specifically, from 1990 to 2010, there were 29 suicide attempts, 27 of which were successful, on the seven bridges located on or near campus.

Cornell was concerned enough about the bridges' magnet-like pull on suicide contemplators so as to undertake anti-suicide bridge renovations in 2006 or so. At that time a virtually suicide-proof alteration --- the installation of nets under the bridge -- was rejected apparently because it would tarnish the scenery. Instead Cornell took half-measures, like building the parapets of the bridges a bit higher, and curving them somewhat. When several more kids threw themselves to their death from those same bridges, Cornell did an about face and is now implementing the net concept.

But in the meantime, the parents of one of those recent suicides have brought a New York wrongful death case against Cornell, and the City of Ithaca as owner of the bridge in question, alleging, basically, that they should have gotten it right the first time.

Cornell and Ithaca moved to dismiss the lawsuit, but a Federal Court judge, himself a Cornell graduate, denied the motion, holding that Cornell and the City had a "duty to maintain the . . . bridge in a reasonably safe condition [so] as to prevent suicides". The case will probably get to a jury eventually.

I know it might be hard for some people to wrap their brain around the concept of holding a University liable for a student's self-inflicted death, but there is another way to look at it. Cornell's failure to suicide-proof those bridges, when it knew their deadly history, and knew that hundreds of impressionable, depressed and stressed young people, whom they invited to live on their campus, would continue to traverse those bridges day in and day out, was equivalent to leaving a loaded gun on each students' dormitory night table. If a student were to pick the gun up off the table, stick it in his mouth, and ends his life, would you blame Cornell, at least a little? Think about it!

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

March 26, 2012

Syracuse NY Personal Injury Lawyer Wins More Than $3 Million For Security Guard Shot in Rochester Convenience Store Holdup

armed robber.jpg.jpgMy fellow Syracuse personal injury lawyer, Joseph Cote, who besides being a great lawyer, is a really nice guy, recently won a nearly $3.4 million Rochester NY personal injury verdict for a security guard shot in the face during a robbery at a Wilson Farms convenience store in Rochester.

The jury held the chain-convenience store's corporate owner 50% responsible and the robber (who was never caught) 50% liable. How could the store be held liable, even half liable, for an armed robber shooting its security guard? Well, Joe argued that the convenience store should have required its employees to move cash from the store to the bank more often. Instead, Wilson Farms became a favorite piggy bank for armed robbers because they knew there was likely to be a big payday inside. In the past decade, armed robbers targeted the Rochester area Wilson Farms stores a grand total of 126 times, which included six shootings and one death.

Joe's argument reminds me of what Jesse James said when asked why he robbed banks: "Because that's where the money is", he quipped.

The 50% finding probably means the Store will have to pay out only half of the pain-and-suffering portion of the verdict. Under New York CPLR Article 16, subject to certain exceptions, a defendant who is 50% or less at fault has to pay the injured plaintiff only its own proportionate share of the pain and suffering compensation. If the jury had found the store 51% liable, the store would likely have had to pay 100% of the pain and suffering compensation, with a right to sue the robber for his 49% share (good luck!).

Congratulations to Joe Cote on a great win.

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 and Syracuse NY Personal Injury Lawyer
Michaels & Smolak, P.C.

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

March 25, 2012

Is A New York Driver Who Has A Seizure And Causes An Accident Liable For The Injuries And Death He May Cause?

scared driver.jpgLast week in Auburn, NY, on Lake Avenue, not too far from the New York personal injury and auto accident law firm of Michaels & Smolak, P.C., a 24-year old driver had a seizure and crashed his car into a house porch. No one, except the driver, was injured, but what if they were? What if someone was on the porch and got hurt? Could that person sue the driver for the injuries?

You might think, "gee, it wasn't really the kid's fault that he had a seizure, so how can you blame him"? You might be right. Or not.

All 50 states require drivers with a seizure history to report this in their application for a driver's license or license renewal. All 50 states deny drivers' licenses to those who suffer frequent seizures that cannot be controlled by medication. All 50 states have rules regarding when and how a license may be acquired for those with seizures that can be controlled by medication.

In New York, in order to get, or renew, a driver's license, anyone who has experienced loss of consciousness or seizures is generally required to produce, on a scheduled basis, a doctor's statement that the seizures are actively controlled by medication, unless the applicant has been seizure-free without medication for at least one year, in which case this is not required (see, 15 NYCRR 9.5).

As you can see, the law attempts to strike a balance between the interests of those unfortunate enough to suffer from seizures with the interest of the rest of us in being protected from seizure-induced accidents.

In general, seizure-related traffic accidents are unlikely when the driver has been seizure-free for a year. People who experience an "aura" before a seizure are also at reduced risk; the aura is nature's warning to pull over before the seizure begins.

Obviously, not taking antiepileptic medication, or even missing one dose, can increase the risk of a seizure-induced accident.

Getting back to this Auburn case, if the driver had obtained, or renewed, his a license without reporting past seizures, he will most likely be held liable. If he was supposed to take anti-seizure medicine, but did not, he will most likely be held liable. If he was denied a license because of seizures, but drove anyway, he will most likely be held liable.

Bottom line: If you suffer from seizures, be honest. Report them when you apply for, or renew, your driver's license. If you are on seizure-controlling meds, take them, always. If you follow these rules, but nevertheless end up killing or hurting someone after a seizure, you should be alright from a liability perspective. After all, you really do have to drive to make a living and get around in most parts of the United States. The law will be on your side as long as you are on the right side of the law!

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
Syracuse & Central NY Car Accident Lawyers
Michaels & Smolak, P.C.

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

March 23, 2012

Can You Sue Drug Manufacturers For Failure to Warn? It May Depend On Whether You Purchased Generic Or Name-Brand Drugs

pills.jpgThe New York Times just reported on a problem I blogged about many months ago: Brand-name drug producers can be sued for failing to provide adequate warnings of prescription drug dangers while the producers of the generic form of the drug cannot. Why? Because the Supreme Court says so. I refer you to the Times article as well as to my previous blog post.

The Times article demonstrates the stark unfairness of this state of the law with a "tale of two cities". In the first case, a woman had to have her hand amputated after an emergency room nurse injected her with an anti-nausea drug, causing gangrene. The drug happened to be a generic drug. She sued for the manufacturer for failure to warn about the risks of injecting it, and her case was dismissed. Another woman with the same injury who was injected with the same drug, but of the brand-name variety, sued on the same facts, and won big ($6.8 million). A $6.8 million dollar difference due solely to the "luck of the draw" in that the hospital in the first case used a generic drug and in the second case used a brand name.

Justice? Go figure.

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

March 22, 2012

Cyclists Get Riled Up About Police Unfairness, Central NY Bicycle Accident Lawyer Reports

bicyclists racing.jpgThe first automobile accident in the United States was in New York City in 1896, when a motor vehicle collided with a bicyclist, causing the cyclist to break a leg. And that was just the beginning. From there, it was downhill for cyclists.

When a motorist and cyclist collide, the cyclist invariably bears the brunt of the damage. But the truth is that's just the beginning. After the cyclist is injured or killed because of some distracted motorist's negligence, the police often find some way to ride roughshod over the cyclist in their accident reports. From my experience representing injured bicyclists throughout the Syracuse and Central New York area, I can say that the police often seem to find a way to blame the cyclist and pardon the motorist. Forget about the forensic evidence at the scene --- the police are likely to sympathize with, and believe, the motorist's excuse that the cyclist "just came out of nowhere".

Like most people who drive cars but don't ride bikes, police tend to have subconscious biases in favor of motorists and against cyclists. And unless you have a good New York bicycle accident lawyer who knows how to carefully screen juries for anti-cyclist or anti-motorcyclist prejudice, the jury will likely do you in, too.

But let's just talk about those biased police reports for a minute. The New York Times reports that cyclists and their allies are taking a stand against them. Enough is enough, they say. The galvanizing force for this uprising is the NYPD's handling of the death of cyclist Mathieu LeFevre, who bit the dust when a flatbed truck crushed him. The driver, who appears to have clearly been at fault, was not charged with any crime.

The cyclist's family, outraged, "foiled" (made a freedom of information law request for) the police file, but were denied access. The family then sued the police, which spurred them to hand over some, but clearly not all, the file materials. How do we know? Because the materials contained no accident scene photos, which is unheard of in a fatal motor vehicle accident. But wait --- the police had a good excuse ---- the investigator's camera was broken! Gee, that was sure bad luck, right?

Well, not really. During a later hearing, the NYPD released the accident scene photos it claimed not to have had! Guess the camera wasn't so broken after all.

Enough is enough already. Let's level the playing field for bicyclists. I believe that, just as police should be educated about their own racial and ethnic biases, and trained to overcome them, so too should they be trained and educated about their pro-motorist and anti-cyclist biases, so that they can overcome them. Hey, maybe they should all have to do 100 hours on a bike per year, just to see the world from a cyclist's perspective.

See this related blog post:

Upstate NY Bike Accident Lawyer On Anti-Bicyclist Bias

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 Bicycle Accident Lawyers
Michaels & Smolak, P.C.

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


March 19, 2012

Central NY Motorcycle Lawyer Spring Motorcycling Tip; Think "They All Want To Murder Me"!

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for motorcycle riders.jpgIn this balmy Central New York May, with the little snow that ever fell a distant memory, the biker's feel that call of the wild --- that desire to feel the wind in your face and hear the roar between your butt and the road. Motorcyclists all over Central New York are dusting off their bikes, revving up their motors, and checking their tire pressure.

But special dangers lurk on the roads in spring. Residual salt and sand might be found at corners, intersections and even on the main roads and highways. Stopping or turning too fast on sand can make you slide, fall, lose control or cross over into the oncoming lane.

Here's another danger: Over the long winter, those four-wheeled drivers have forgotten what a two-wheel vehicle looks like. Or at least lost the habit of looking out for them. Wise advice: Ride as if every motorist is out to murder you. Just believe it! You will thus avoid them at every opportunity, and you will be doubly happy if they turn out to have no such murderous intent.

One more piece of advice: Look out for novice bikers. With gas prices through the roof, some four-wheeled drivers will be learning to move on two --- kind of like tadpoles crawling from the pond and growing lungs, or baby robins taking their first flight. Those first few hops, or flaps, can be clumsy and --- well --- dangerous for them and those around them (you!).

In sum, when you hit the road this spring, don't let it hit you. Live on the edge -- the scared, defensive, they're-all-out-to-get-me edge--- and it just might save your life.

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 and Syracuse NY Motorcycle Accident Lawyer
Michaels & Smolak, P.C.

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

March 18, 2012

Central New York Injury Lawyer Gets Lucky Break On A Dog Bite Case

vicious dog.jpgI just got a lucky break on a Geneva NY dog bite case. I'll tell you about it in a minute. But first let me tell you about an article I just read about animal attack cases in the New York Law Journal, which concluded that "New York is perhaps the toughest jurisdiction in the nation to be in" for dog bite (or any animal attack) cases. Why?

There is kind of a paradox in New York. On the one hand, New York is a "strict liability" state for animal attack (including dog bite) cases. That means that you don't even have to prove that the animal's owner was "negligent" or careless. If the dog bit you, or the animal attacked you, and you are injured, the owner is strictly (automatically) liable, BUT ONLY IF _______ (I'll fill in the blank later). In other words, even if the owner was very careful in, for example, tying up the dog, but some neighborhood kids let him lose as a kind of gag, and the dog then bites someone, the owner is still liable BUT ONLY IF _____. The law is generous to animal attack or dog bit victims, BUT ONLY IF _____.

OK, enough already. Only if what? Only if the owner "KNEW OR SHOULD HAVE KNOWN OF THE ANIMAL'S VICIOUS PROPENSITIES".

And there lies the problem for New York dog bite victims. This is easy to prove if the dog had bitten someone before it bit you, but a lot harder to prove otherwise. You can try to show knowledge of "vicious propensities" by proving the dog tended to growl, snap or bare its teeth, or that the owner tied him up, or referred to him as a "guard dog". But even these facts might not do the trick. While there may be some neutral witnesses (e.g., the mail deliverer, neighbors) to help you prove how nasty the dog was, you are often stuck trying to prove all this alleged "viciousness" through the owner's own testimony. And guess what; he won't help you.

But as I said at the start, I just got lucky on a dog bite case. My client is a mail carrier. As the dog owner opened her door to get her mail, the dog charged out and bit him. The only evidence we had of vicious propensities was that the dog always growled at the mail carrier from behind the door.

But here is the lucky break: After canvassing the neighborhood, we found one neighbor who says the owner told him long ago that her mom "gifted" her the dog after the dog HAD BITTEN SOMEONE.

Bingo.

Other blog posts about New york dog bite cases:

Pit Bull Dog Attacks; Will Victims Get Compensation?

Beware Of Dog (Exclusion): Central And Syracuse NY Personal Injury Lawyer Explains.

Is a Dog Owner Who Violates a New York Leash Law Liable For Injuries Suffered in a New York Dog-on-Bicyclist or Dog-on-Pedestrian Attack?

Syracuse New York Dog Bite Lawyer Explains How to Prove a New York Dog Bite Case

Auburn New York Dog Bite Case Perfect Example of New York Dog Bit Liability

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

March 15, 2012

Central and Syracuse NY Personal Injury Lawyer -- "Good Staff Makes For Good Results"!

RebeccaKinney.jpgI blogged last time about a seven-and-a-half year Syracuse NY wrongful death case I settled on the first day of trial this week. Today I want to blog about the "behind the scenes" preparations for trial. It sounds boring, and it sure ain't "LA Law" stuff, but in a trial, preparation is 90% of the battle.

I knew from the get-go that the trial would involve about 25 witnesses as well as complex legal issues, so I didn't mess around. Three months before trial, I started fashioning an electronic file, with separate folders for pleadings, orders, exhibits, witnesses, depositions, affidavits, law, summation, opening, jury selection. I organized everything logically. For example, each discovery demand was set in a separate folder with its corresponding response, and each set of demand-responses was set into a file labeled "discovery".

About 2 weeks before trial, I finally had an electronic file so well organized that I could click to any of the hundreds of pages of documents I wanted within 5 seconds. I also had all my witness deposition summaries, and witness questions, set out in separate witness folders along with each witness's deposition and affidavit.

But electronic files alone aren't enough. Even though trials have become somewhat more computer-friendly, you still need to be able to reach for a "real" document. You have to mark real paper exhibits. You have to offer the paper exhibits into evidence.

So about 2 weeks before the jury trial I sent an email to one of our secretaries, Becky Kinney. The email said, "Becky, please create 'hard copy' trial notebooks that replicate my electronic ones". Her heart must have sunk, but she rose to the task without batting an eye. She had the office printer churning out the documents, the hole-puncher spitting out little round discs of paper, and she surely sucked Auburn's three-ring binder supply dry.

The Friday before trial, she produced three banker boxes full of beautifully prepared and organized trial notebooks, all clearly marked, with tables of contents and handy color-coded tabs. They were so well done that I could find any paper document I wanted in 5 seconds, just like in the electronic version.

Before I left for trial, Becky said, "Mike, you had better not settle, because if you do, all that hard work will have been for nothing".

When I came back from court, case settled, I told Becky, "when the defendants saw your notebooks, they panicked and settled with me".

This was, of course, not literally true. But trial lawyers can sense their opponents' lack of preparation. They are unlikely to make a good settlement offer if they smell blood. In this case, my opponents were confronted with a confident, well prepared, well organized lawyer, who was clearly ready, even excited, about trying the case. I believe this brought their offer up, and caused the case to settle. And that is in large part because of Becky.

Never underestimate the impact good staff has on your case results.

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

March 14, 2012

In Memorium

Thumbnail image for Thumbnail image for frank face.jpgWhen you're a personal injury lawyer, you need lawyer-friends to bounce ideas off of, friends who will listen, critique you, play devil's advocate, and just plain tell you when you are wrong. This profession is more of an art than a science, and to get it right, you need feedback, advice, and sometimes just a pep talk.

Here's a good example of a case you need friends on, one of the toughest my career. The case was full of legal and factual intricacies that befuddled and confounded not only the lawyers, but judges and their clerks. The trial judge at one point dismissed the case because he felt it was not "actionable" (the law did not allow it), but I appealed, the appellate court agreed with me, and allowed the case to stand, even though it was the first of its kind to be brought (you can read the decision here).

Then the trial judge dismissed another piece of the case, and I again appealed, and again the appellate court ruled in my favor, though a dissenting justice would have affirmed the trial judge (you can read the decision here).

Meanwhile, the four sets of defense attorneys working against me kept bringing "motions" (legal requests to the judge) to my detriment that I had to fend off. By the time we got to trial this past Monday, I had been working on the case for SEVEN AND A HALF YEARS! Do you think I might have reached out to a few lawyer friends for advice and feedback during those seven and a half years? You betcha.

There was one lawyer in particular I often reached out to on this case (and other cases). He was "there" for me every inch of the way. In fact, he had been my main confident ever since I first got out of law school. He always had time to listen, and to counsel, and usually for a joke or two. Whenever I got a big win, he would be thrilled for me. Whenever I suffered a loss, he would console me. I trusted him like no one else. He was a great lawyer, a great friend, and a great man.

On February 11, that lawyer, my brother Frank Bersani, suddenly died. He was only 57 years young, not even a year older than me.

On Monday, my seven-and-a-half year case settled, favorably, as I was about to pick a jury. On my way back to the office, I picked up my phone to call Frank to tell him the good news.

Then I put it down.

Not having Frank to call about my cases will take some getting used to . . .

Appreciate the friends, and brothers, who help you along the path of life, and don't forget to tell them once in a while how much they mean to you.

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