November 21, 2011

Central New York Injury Lawyer: Hunters Beware!

Thumbnail image for hunter.jpgHunting season is once again upon us. Hunters, please be careful. I have blogged about hunting accidents before, so rather than repeat myself, I'll simply refer you to this prior blog post:

Central NY Hunting Accident Lawyer Reminds Hunters of Safety Rules

Our law firm has recovered several sizable settlements for injured hunters from the homeowners' insurance of their fellow hunters who accidentally fired at them. Maneuvering past the insurance issues can be tough, as I explain in this blog post:

Central New York Hunting Accident Lawyer Explains Unfairness of Insurance Rule

If any hunters out there have the bad luck of getting shot, give us a call for a free consultation.

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 Hunting Accident Lawyer
Michaels & Smolak, P.C.

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

November 20, 2011

Do New York Personal Injury Lawyers Favor Republicans Or Democrats?

obama.jpgAs the presidential election campaign heats up, I thought you might want to know where we New York personal injury lawyers stand. Do we favor democrats, like Obama, or Republican like _______ (fill in the blank)?

I won't give you a bunch of crap about us being impartial. We favor democrats hands down. Why? Among other reasons, because many republicans are in favor of tort reform (personal injury lawyers like me call it "tort deform").

But that's just one reason. Republicans, generally speaking, favor corporations and the rich at the expense of the down-trodden and the poor. Many of our clients are down on their luck. They are injured, out of work, dependent on social services, and have a legitimate personal injury claim against a corporation or an insurance company that they hope will help them get their life back on track. Many Republicans want to take away, or sharply curtail, their right to get justice. They belief people should just pull themselves up by their bootstraps, even if they have neither boots nor straps.

It's not that Republicans don't sometimes have good ideas and good motives. They do. And there are a lot of good Republicans out there. Hey, my mom, dad, and two of my five brothers are all Republicans, and they are some of the loveliest people I know.

But generally the philosophy of the Republican Party is inconsistent with the interests of the vast majority of our clients. So sure, we favor democrats, generally.

That being said, I voted for at least two Republicans in my local elections in Geneva, New York a few weeks ago. You have to look at the candidate, not just the party affiliation.

Will I vote for Obama or _____ (fill in the blank)? Uh hem. I haven't decided yet. Do you believe me?

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 Injury Lawyer
Michaels & Smolak, P.C.

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

November 13, 2011

Central NY Injury Lawyer Discusses New York Statute Of Limitations In Child Sexual Abuse Cases

Thumbnail image for sad teen silouette.jpgYesterday I blogged about whether a "governmental immunity " or "sovereign immunity" defense would bar a claim by child sex abuse victims against the State University of New York ("SUNY") if something like what happened at Penn State (State university football coach sexually abuses children on campus) happened in New York at SUNY Geneseo, or SUNY Albany, or SUNY Cortland, etc. I concluded that those defenses generally would not be applicable in New York. But unfortunately, unlike in Pennsylvania, another defense would likely prevail in New York: The statute of limitations.

Pennsylvania, unlike New York, has extended the statute of limitations for child sexual abuse victims until they reach age 30. From news reports, it seems that all the Penn State child sexual abuse victims are still under 30 years old. So they can, and probably will, be able to sue Penn State for compensation, though on the very same facts, they would not be able to do so in New York

In New York, there is no specific statute of limitations for civil cases based on child sexual abuse claims. The child victim must rely instead on traditional statutes of limitations for assault (by the perpetrator) and negligence (by the employer of the perpetrator or owner of the building where it happened). In New York, the statute of limitations for assault is one year, and for negligence it is three years.

But a child victim's statute of limitations is "tolled" (doesn't start to run) until he or she is 18 years old. That means that the statute of limitations against the perpetrator of the sexual abuse generally expires on the victim's 19th birthday, and against the employer/property owner, on the victim's 21st birthday.

But there are other --- and longer --- statutes of limitations that might apply. Under CPLR 213-b(2), if the sexual abuser is convicted of a criminal offense, the victim gets 10 years to sue him starting from the date of the crime. But this statute of limitations applies only to a lawsuit against the rapist/abuser who was convicted of the crime, not a lawsuit against his employer or others who may have negligently allowed the rape/abuse to occur. Thus, in a Penn State-like situation, the sexually abused child could not use this statute of limitations to extend his time to sue the State University.

What about CPLR 215(8)? That Statute gives the child victim of sexual assault in New York an additional five-year window to sue the perpetrator from the date the criminal action against the perpetrator terminates. But can a child sex abuse victim use this statute to extend his statute of limitations for suing not only the perpetrator, but also the negligent employer or premises owner or other culpable people who are not defendants in the criminal case? The courts in New York are divided on this issue, so this is far from a sure bet.

The bottom line is that most victims of child abuse in New York would probably be barred from suing SUNY (i.e., State Universities like Penn State) unless they did so before they turned 21. This is extremely unfair, because, as any psychologist will tell you, and as experience confirms, most victims of childhood sexual assault don't come to terms with what happened to them, or consider going to the police about it or making a claim for compensation, until they are closer to thirty years old. From what I have read, the victims of child sexual abuse at Penn State are now all over 21 years old, but younger than 30. Thus, their claims would likely be barred in New York, but not in Pennsylvania.

Why doesn't New York have a more fair law, like Pennsylvania's, that protects the rights of victims of child sexual abuse? Glad you asked. In 2009, the New York State Legislature considered a law that would have liberalized the statutes of limitations for child sex abuse cases. The "Child Victims Act" would have, among other things, extended the statute of limitations for filing civil suits for child sexual abuse to 10 years after a victim turns 18 (i.e., to age 28). But a very strong Catholic Church lobby defeated the bill.

There are some "loopholes" New York plaintiffs' lawyers might try to latch onto to avoid New York's harsh statute of limitations for child sexual abuse claims, such as "equitable estoppel". But those are very difficult arguments to make. For example, with an "equitable estoppel" claim, the once-child, now adult, victim must show that a defendant such as Penn State did more than merely cover up a crime; he must show that the defendant engaged in fraud, deception or misrepresentations that induced him to refrain from filing a timely action. This is almost never the case --- rather, usually the victim's own shame induced him to refrain from filing a timely action.

Maybe the Penn State drama will induce New York law makers to again attempt reforming New York's antiquated child sexual abuse law. Let's hope so.

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

November 12, 2011

Central New York Injury Lawyer Discusses Penn State Sexual Abuse Lawsuits

sad teen silouette.jpgLike everyone else, I have been following the "Happy Valley" Penn State child sexual assault scandal with disgust, awe, shock and dismay. But unlike everyone else, I am also thinking, as I read, who I would sue, for how much, and under what legal theories.

Although I am admitted to practice law in Pennsylvania, I have never handled a case there. My practice is limited to New York personal injury cases, and particularly to cases in Central and Western New York State. So I was surprised to read that some PA lawyers saw obstacles under Pennsylvania law to a lawsuit against Penn State because of the doctrine of "sovereign immunity". Penn State would, of course, be the principle target of my lawsuit because of its deep pockets. The lawsuits brought against the rapist/sexual predator, Sandusky, or any of the individual coaches, such as Joe Paterno, would quickly deplete all their assets, leaving the plaintiffs under-compensated. There are at least eight victims, and probably a lot more will be stepping forward, which in my mind equates to many, many millions of dollars in lawsuit recovery.

In New York, a suit against a State University for something like this would not trigger a viable sovereign or governmental immunity defense. That's because New York law distinguishes between the State's traditional governmental role (such as providing police protection) and non-traditional roles the State has assumed over time, such as owning and running a university. Generally, the State can raise the governmental immunity defense only against tort lawsuits for the former, not the latter.

If what happened at Penn State happened at one of New York's SUNY colleges, the only possible governmental immunity defense in New York would, in my opinion, be against allegations the campus police should have intervened. Since police protection is a traditional governmental function, a governmental immunity defense against that cause of action might prevail. But so many other causes of action abound for holding the State college or university liable here: Negligent hiring, supervision and retention of the football coaches; civil conspiracy; premises liability (knowingly allowing a dangerous condition to exist on their premises). And the government immunity defense would not bar these causes of action at all.

The problem in New York would not be governmental or sovereign immunity. Unlike in Pennsylvania, the problem would be the statute of limitations. I'll be discussing that tomorrow, so stay tuned . . .!

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

November 7, 2011

How Much Are The Mentally Disableds' Lives Worth In New York (Hint: ZERO!)

Thumbnail image for flowerongrave.jpgJust read a great article in the New York Times about developmentally disabled people in New York State care, or in the care of not-for-profit homes charged by the State to care for them, who die for "reasons other than natural causes". Check out the stats: One in six such deaths in the past decade have been chalked up to "unnatural" or "unknown" causes. Other states, like Connecticut and Massachusetts for example, count only 1 in 25 such deaths.

The Times, God bless their soul, undertook its own analysis of death records, to find out just what these poor folks were dying from. What they found is very disturbing: Many of these deaths result from errors and preventable deaths, such as drowning in bath tubs where the disabled were not supposed to be left alone in the tub, or choking on food when they were not supposed to be left alone with food; or falling down stairs when they were not supposed to be navigating stairs on their own. Some of the mentally disabled simply ran away, repeatedly, until they died out on their own.

The Times further found that these preventable deaths rarely resulted in measures being implemented to prevent the same mistakes from recurring.

Is this shocking? Yes. Surprising? Maybe for you, but not for me. Why? Well, you might think the State and these private homes would get the pants sued off of them for their deadly neglect, which would cause an about face. But I know better. As a New York personal injury lawyer, the most telling part of the article for me was this sentence: "Lawsuits are relatively rare after the deaths of developmentally disabled people in New York, in part because economic damages are difficult to prove, given that the victims are seldom employed".

The Times is absolutely right. Under New York's wrongful death law, a case can be brought to recover only the "economic loss" to the estate of the deceased. In other words, the family members who the deceased was supporting have a right to claim the "economic loss" of the support money they no longer receive because the bread-winner died. Most states, unlike New York, also allow surviving family members to sue for their grief, but New York does not.

Where does that leave New York victims of wrongful death who were not supporting anyone, such as children, the elderly, or the mentally or physically disabled? In the trash bin, that's where. Their lives are worth NOTHING under New York's antiquated, extremely unjust wrongful death law. I have blogged repeatedly about how unfair this rule is. See my prior blog posts below.

But this law is not just unfair. New York's wrongful death law is literally KILLING US. New York State and the not-for-profit homes that care for the disabled know they can, with impunity, neglect their charges, cause their death, and pay nothing to compensate the family. With no price to pay, why should they bother mending their ways?

To be fair, there is one kind of death claim involving disabled people that New York personal injury lawyers might find worth while pursuing. That's where there is proof of considerable conscious pain and suffering before death. The estate of the deceased, even a deceased disabled person, has a right to claim compensation for that pain and suffering. But since these poor souls often die alone, without witnesses, those cases must be rare.

Still, if you have a case where a mentally or physically disabled family member died from neglect while in New York State's care, or in a private home-for-the-disabled's care, call me. I would love to sue these guys to teach them a lesson! Lawsuits like that would make them think twice before neglecting their next victim.


Related blog posts:

New York Wrongful Death Law: A Travesty Of Justice For Elderly Victims Of New York Nursing Home Malpractice and their families

New York's Wrongful Death Law Is Wrongful

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 Wrongful Death Lawyer
Michaels & Smolak, P.C.

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

November 6, 2011

My Kid Got Hurt By Another Kid At School. Can I Bring A New York Personal Injury Claim Against The School District?

Thumbnail image for schoolhallway.jpgKids have a known propensity to fool around, sometimes dangerously. Some kids go beyond mere fooling around, and bully or hit other kids. All these childish behaviors are dangerous, which is why God invented adults. Yes, we adults were put here on earth to keep kids from killing and maiming each other! (Unfortunately, some adults are like children, but that's another story. . . )

When you, as a parent, turn your sweet little Johnny over to the school district to receive his education, you also hand over to the school, to a certain degree, parental responsibilities. The school, in the eyes of the law, steps into the shoes of a parent, which means the school has a duty to provide proper supervision and control of your child and all others. If the school does not properly supervise its students, the school district can be sued and held liable for the harm caused.

But not all harm that befalls your child at the hands of other kids at school can, in the eyes of the law, be blamed on the school. The school is not an insurer of your child's safety. The school must act responsibly in fashioning sound safety rules, and in supervising its students, and it must ensure that the rules are being implemented by teachers and other staff. But it cannot prevent all injuries caused by other kids, especially unexpected and unforeseeable injuries.

What kind of classmate-caused injuries can you bring a New York school injury case against the school district for? Here are some examples: If a teacher or aid leaves a group of students unsupervised for a period of time, and the students engage in horseplay, or a fight breaks out during that unsupervised period of time, the school might, depending on the circumstances, be held liable for failing to provide adequate supervision. Or if a child has a history of assaulting other kids at school, and the school does not properly discipline or control him, and he then hurts another child, the school district may be held liable. Or if a group of students is allowed to engage in dangerous horseplay, and an accident causes injury to a child, the school district may be held liable for negligent supervision.

On the other hand, if a student suddenly, spontaneously, and without warning, does some foolish act, or takes a swing at another kid, and an injury results, the school probably can't be held liable. That's because the law recognizes that no amount of supervision can prevent sudden, unexpected, spontaneous acts of violence or horseplay.

The legal analysis of whether a school district can be held liable for injuries caused by other kids at school is actually a very complex one. Many factors come into play. If your child is injured by another child at school, call an experienced New York school accident lawyer to find out whether you can hold the school liable.

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

November 5, 2011

Does Workers' Compensation Bar My New York Injury Lawsuit?

Thumbnail image for Thumbnail image for Thumbnail image for constructionworkeronroof.jpgI get calls from people all the time like this one: "I was injured at work, and I am getting comp, but it's not enough to pay the bills. Can I sue for more"?

But I need more info. So I start asking questions back. As I listen to how the accident happened, I am trying to see if anyone other than the employer or co-employees was partially at fault. Was some third-party, such as an outside contractor, partially responsible? If not, at least a little bit, then we can't sue anyone. That's because the employer and co-workers can't be sued, even though they were at fault, as long as the injured employee got comp. This is known in colloquial legalese as "the workers' comp bar".

Just to make sure we can't sue anyone, after I have all the facts, I usually ask the caller, "can you think of anyone who was at fault for this accident other than your employer or your co-workers"? If the answer is "no", then chances are the guy is stuck with just his comp, which sucks, because that pays, at most, 2/3 of his pay. If you are a member of the working class, and you are just barely getting by on full pay, imagine trying to pay those same bills on 2/3 pay. A lawsuit, on the other hand, could result in full payment of lost wages, plus pain and suffering compensation.

Sometimes an employee works for one company, but is sent to another company to work. For example, a temp employment agency might send a worker to an outside company for a day's work. If the worker gets hurt because of that company's, or it's employee's negligence, can he sue?

As usual, the answer is "depends". New York has a "special employment" a/k/a "borrowed servant" doctrine, which basically says that if you are employed by Company A, which lends you to Company B, and you are injured because of Company B's negligence, you can't sue Company B as long as Company A provided you with workers' compensation. Although the courts consider several factors in determining whether to apply this "special employment" doctrine, the main one is "control". If Company B "controlled" your work, i.e., supervised you, told you what to do and how to do it, then generally you are considered a "borrowed servant" and the "special employment" doctrine bars you from suing Company B, just as it would bar you from suing your true employer, Company A.

The only way to know for sure whether your lawsuit is barred by workers' compensation, or there is a way around the workers' comp bar, is to talk to a qualified New York personal injury lawyer. So call me!

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

October 31, 2011

Auburn New York Car Accident Lawyer Discusses Insurance Coverage Issues In Sennett NY Car Accident

Thumbnail image for deer crossing street.jpgNews reports say that a driver carrying 3 passengers in Sennett crashed after swerving to avoid a deer. A 27-year-old Auburn female passenger was killed and four others were injured in the collision. The car struck a culvert, rolled over several times, and ejected three of the passengers. It seems that all of the passengers suffered fairly serious injuries.

These were young people -- late teens and early twenties. As the father of several kids that age, I can say that the parents are living my worst nightmare.

Finding enough insurance to fully cover all the injuries will be a challenge. To have the best shot at getting sufficient coverage, the passengers or their families should promptly retain a New York car accident lawyer to fully represent their interests, which includes investigating all potential insurance coverage.

Here's a short-form summary of what these unfortunate car accident victims are entitled to: All the injured, including the driver, will be entitled to no-fault benefits (up to $50,000 in combined lost wages and medical bills). The no-fault applications should be filed with the insurance carrier of the car within 30 days of the accident.

In addition, the passengers will be entitled to bring a claim against the driver and owner of the vehicle for bodily injury compensation beyond no-fault, including any additional lost wages, medical expenses, and pain and suffering.

But there probably won't be enough insurance coverage to fully compensate the victims. That's why the passengers, through their New York car accident lawyer, should investigate whether there is any "hidden" insurance (called "supplemental underinsured motorist coverage) in their own motor vehicle insurance policies, or in those of relatives who reside with them.

The family of the deceased passenger can bring a claim for no-fault "death benefits", and may also want to consider a wrongful death action to recover for the conscious pain and suffering of their loved one before she died, and for any economic loss to those the decedent may have been supporting.

Car accidents like this one are sad, life-altering events. Nothing can undo the harm, but promptly seeking out the right insurance coverage can avoid making a very bad situation 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 Car Accident Lawyer
Michaels & Smolak, P.C.

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


October 30, 2011

Central NY Injury Lawyer On Whitesboro, Oneida County House Explosion

house_fire.jpgA house violently exploded in Whitesboro, Oneida County today, killing an elderly woman, and strewing house debris in all directions. Neighbors say they smelled gas before the explosion. State officials, and the National Grid, are investigating the cause of the explosion.

From my experience representing victims of house explosions caused by gas, including a 2005 house explosion in Oswego County that injured 9 and killed one resident, this appears to be a typical gas-fueled explosion. Gas explosions in homes are typically violent, demolishing the home and strewing debris many feet in all directions.

From a liability perspective, the gas provider, or those who installed the gas-fueled appliances, or, if the house is rented, the landlord, may be held liable for the explosion and resulting injuries or death. It all depends on what went wrong. Did the resident receive proper warnings about the smell of gas, what it meant and what to do? Was the gas-odor properly added and mixed into the gas? Where did the leak start, and how? Were the gas-fueled appliances installed correctly?

The only way to answer these questions, and thus to find the culpable party or parties, is through a thorough and early investigation by experienced experts. The evidence gets "cold" early in cases like this, so there is literally no time to waste.

Unfortunately, in many gas explosion cases, the investigation conducted by public officials proceeds without the victim's family having any representation by a lawyer or experts hired by that lawyer. These public officials often work hand in hand with the gas supplier, landlord, or other persons that might be interested in exonerating themselves. The result is that crucial evidence that could help the victim or her family prove her case is sometimes overlooked, or worse, destroyed or hidden. That's why a gas-explosion victim's family should retain a New York gas explosion injury lawyer immediately.

And by the way, if you smell gas in your home, get out of the house, and get others out, immediately. And don't light anything, turn on any switches, or even dial a phone from inside the home. The smallest spark could ignite the dangerous mix of oxygen and gas trapped in your home. Go to a neighbor's house and from there call the utility company or whoever supplies your gas.

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


October 27, 2011

Central NY Injury Lawyer: Bus Crack Down Will Avoid More NY Bus Crashes.

Thumbnail image for Thumbnail image for Thumbnail image for bus.jpgThe Syracuse Post Standard reports that, after the fatal series of New York bus accidents this year (see my prior blog posts below), New York State troopers, and Department of Transportation officials, started cracking down on bus safety violations using, as a weapon of choice, surprise roadside inspections. The result? 530 bus drivers and 460 non-compliant buses have been removed from our roads for safety violations. Twenty two buses were inspected within Onondaga County alone, of which three were removed. Two of these were Greyhound buses.

What kind of violations are we talking about? Minor things? Hell no. How about one bus with 20 percent of its brakes out of adjustment. Or a driver failing to keep a week's worth of driving records (these are required to show that the driver has taken legally mandated "times off" from driving, which avoids the risk falling asleep at the wheel).

Does this kind of law enforcement work? You bet. The crackdown costs the bus industry money. It becomes cheaper for them to simply comply with the safety rules. It no longer "pays" to cut safety corners. And you and your family are safer. Which of course means that New York motor vehicle accident lawyers like me get fewer bus accident cases, which is absolutely fine with me, thank you.

Prior related blog posts:

NY Bus Accident Lawyer Update on Whitney Point, NY Tour Bus Accident

Cortland NY Tour Bus Accident: NY Lawyer Comments

Central New York Bus Accident Lawyer On Seneca County New York Thruway Bus Accident

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 Motor Vehicle Accident Lawyer
Michaels & Smolak, P.C.

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

October 22, 2011

New York Legal Malpractice Insurance: Should It Be Required?

lawyer & client.jpgI ran across a fellow personal injury attorney's blog post pointing out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. When you think about it, it's amazing the other 49 states, including New York, do not require attorneys to carry malpractice insurance, especially personal injury lawyers who handle multi-million dollar claims for their severely injured clients. Can you imagine a surgeon not carrying malpractice insurance? Unheard of. Lawyers make mistakes, too, and their clients should be protected from that, just as doctors' patients are.

I am not sure whether we need a law requiring all New York lawyers to carry malpractice insurance. But I do think we need, at the very least, a law requiring full disclosure. I think all uninsured New York lawyers should be required to disclose, on their letterhead or in some other prominent place, "we do not carry legal malpractice insurance". Why? Because most clients see lawyers as "rich" professionals, and assume they have adequate insurance coverage, just like doctors do. If they knew the lawyer they were about to hire was "bare", they might decide to choose another lawyer who is covered.

Here at Michaels & Smolak we sue lawyers for legal malpractice in New York. From our experience, we know that it is tough to collect on a judgment against an uninsured lawyer. These lawyers have no insurance for a reason; they can't afford it because they are already in financial straits. Usually, they have multiple debts or judgments against them, little or nothing in the way of assets, and they may file for bankruptcy to protect themselves from their malpracticed clients' lawsuits. We have seen this happen many times.

This is just not fair to the client, who never suspected she had hired an uninsured lawyer. That's why I'm for full disclosure. My two cents!

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 Legal Malpractice Lawyer
Michaels & Smolak, P.C.

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

October 22, 2011

Syracuse University Newhouse Students Campaign To End Texting While Driving

thumb band.jpgKudos to SU's Public Relations students, who have launched a campaign to dissuade their fellow students from texting while driving. Imaginative campaign, too. They are distributing "thumb bands" (think those ubiquitous yellow "LiveStrong" bracelets, but thumb size), with the word "pause" imbedded on them, to remind students not to employ that digit, or any other, on the smart phone while driving.

The campaign will be featured at Friday night's Virginia v SU football game at the Carrier Dome, where the thumb bands will be distributed, and students will be invited to jump online with their smart phones where they can pledge not to text while driving.

As I have blogged about many times before, driving while texting is even more dangerous in many ways than drinking and driving. In my job as a Syracuse and Central New York car accident attorney, I personally have noticed a big increase in the number of cross-over and rear-end collisions due to young people texting while driving within the last few years. National statistics bear out my personal observations; according to the National Highway Traffic Safety Administration, about 20 percent of crashes involve distracted driving, including texting, and most of these are drivers under 20 years old.

And by the way, texting while driving is also against the law in New York!

Thanks Newhouse students for getting on this issue in such a creative, fun way.

Related blog posts:

Syracuse New York Car Accident Accident Lawyer --- "Texting While Driving Kills!"

Driver Distraction Caused Minetto NY Car-On-Mororcycle Crash

How To Minimize Your Injuries In A Rear-End Auto Collision

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 Car Accident Lawyer
Michaels & Smolak, P.C.

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


October 18, 2011

Can You Undo A New York Personal Injury Settlement If You Discover New Injuries?

money.jpgYou should never settle a New York personal injury case until you have let enough time go by so that you are fully aware of all your injuries, and the full extent of them. It is not uncommon for New York personal injury lawyers to wait a year or more before even making a settlement demand; they want to see where the injury "ends up" before they settle. That's because once you settle you generally can't go back for more money, so you have to be absolutely sure you know the full extent of your injuries before settling.

But let's say you were not so prudent. Let's say you got into a car accident and suffered a neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance adjuster for a small amount of money. As part of the settlement, you signed a "release" that said you were releasing the at-fault driver, and his insurance carrier, from any and all liability for all injuries "known and unknown" that were caused by the car accident.

After you sign, and after you get the settlement money, you start noticing pain in your lower back. The back pain gets worse and worse, and your doctor tells you it was probably caused by the car accident. The doctor is recommending surgery on your back.

You want to undo the settlement, because now you feel the small amount of settlement money is not nearly enough to compensate you for a severely injured back.

Can you undo the release ("rescind" it in legal terminology)?

The answer is a resounding . . . . maybe. The legal grounds for undoing it is called "mutual mistake". To undo the agreement, you will need to prove that both you and the insurance adjuster assumed the neck was all that was injured, and that you both meant to strike a deal only regarding that injury, no matter that the release speaks of both "known and unknown" injuries.

In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and not unknown injuries, like your back, a jury will be allowed to consider all of the facts and circumstances of the settlement, including the amount, the relationship of that amount to the your injuries, the language of the release, how long after the incident the release was signed, whether you were examined by your own doctor before you signed, whether you had been examined by a doctor on behalf of the insurance company, what the insurance adjuster said to you about your injuries and about the release, and several other factors, which are all set forth in New York Pattern Jury Instruction 4:11.

Undoing a release is hard. It is far from a sure bet. But it may be worth a try.

Think about this, though: You would never have gotten yourself into this mess if you had just hired me before you settled. Don't make the same mistake twice. Get a good lawyer to help you undo the settlement.

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


October 18, 2011

Can You Undo A New York Personal Injury Settlement If You Discover New Injuries?

You should never settle a New York personal injury case until you have let enough time go by so that you are fully aware of all your injuries, and the full extent of them. It is not uncommon for New York personal injury lawyers to wait a year or more before even making a settlement demand; they want to see where the injury "ends up" before they settle. Once you settle, you generally can't go back for more money, so you have to be absolutely sure you know the full extent of your injuries before settling.

But let's say you were not so prudent. Let's say you got into a car accident and suffer an insignificant neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance carrier for the at-fault driver for a small amount of money. As part of the settlement, you signed a "release" that said you were releasing the at-fault driver, and his insurance carrier, from any and all liability for all injuries "known and unknown" that were caused by the car accident. After you sign, and after you get the settlement money, you start noticing pain in your lower back. The back pain gets worse and worse, and your doctor tells you it was probably caused by the car accident. The doctor is recommending surgery on your back.

You want to undo the settlement, because now you feel the small amount of settlement money is not nearly enough to compensate you for a severely injured back. You re-read the release you signed. It clearly says you release the at-fault driver and his insurance carrier from liability for ALL injuries KNOWN AND UNKNOWN that stem from the car accident.

Can you undo the release?

The answer is a resounding . . . . maybe. The legal grounds for undoing the release under these circumstances is called "mutual mistake". Even if the release says you are releasing the defendant from liability for "all injuries" both "known and unknown", if both parties assumed that that the neck injury was the only injury, and they meant to strike a deal only regarding that injury, then there was a "mutual mistake" as to what the total injuries in fact were, and the release can be undone ("rescinded" in legal terms).

In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and was not intended to cover even unknown injuries, like your back injury, a jury will be allowed to consider all of the facts and circumstances existing at the time the release was signed, including the amount of the settlement, the relationship of that amount to the your injuries, the language of the release, how long after the incident the release was signed, whether you were examined by your own doctor before you signed, whether you had been examined by a doctor on behalf of the insurance company, what the insurance adjuster said to you about your injuries and about the release, and several other factors.

All these factors are set forth in the New York Pattern Jury Instruction 4:11. It's not a sure bet, but it might be worth a try. But, hey, you would never have gotten yourself into this mess if you had just hired me, or another good New York accident lawyer, before you settled. Don't make the same mistake twice. Get a good lawyer NOW.

October 16, 2011

Phoenix football player's death - Is a New York Wrongful Death Lawsuit Possible?

helmet.jpgSixteen-year old Phoenix football player Ridge Barden died from a massive subdural hematoma, or in laymen's terms, lots of blood on the brain. As the father of a 15-year old boy, the horror and grief of the Barden family is tangible to me. My deepest sympathies go out to his entire family, including his football family.

The damage was caused by helmet-to-helmet contact during a football game between Phoenix and Homer High School in Homer last Friday. The injury, and death, appears to have resulted from a single impact during the game.

This tragic death comes at a time when brain injuries and concussions suffered in youth sports, especially football, are under scrutiny. A lot of people are asking, "are we doing enough to protect our young athletes' heads"? Evidence is emerging to suggest that the helmets players use may not be enough to protect them from serious injuries, despite what some helmet manufacturers want you to believe. (I blogged last January about false claims made by helmet manufacturers that their latest models have reduced the risk of concussions).

Most high schools send their football helmets out to be reconditioned every year, and they have to pass a safety inspection before the season begins.

Is a lawsuit possible in a case like Ridge Barden's? Possible targets of a lawsuit would be: The high school; the helmet manufacturer and the helmet reconditioner.

Assuming the helmet was not defective, in my opinion as a New York personal injury lawyer, no one can, nor should, be sued (please, no one take this as legal advice --- all cases are unique and all facts must be examined before a binding legal opinion can be rendered). A lawsuit on these facts would generally be barred by a legal doctrine known as "primary assumption of the risk". This rule, as articulated repeatedly by New York courts, provides that "by engaging in a sport or recreational activity, a participant is deemed to have consented to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation".

Football players, and their parents, know, or should know, that there is a risk, however slight, that they may be seriously injured or die in a sport, such as football, that involves forceful head-on-head contact, albeit with helmet protection. They knowingly, and willingly, accept this risk. The sport has so many benefits --- character building, conditioning, learning to work as part of a team --- that we are willing to accept the risks.

And we should be thankful for this assumption of the risk rule. But for this rule of law, there would be no high school football at all --- lawsuits would shut down the whole sport.

Don't get me wrong --- lawsuits are warranted in some sporting accident cases. As I have explained in previous blog posts, not all sporting injuries are caused by the inherent and assumed risks of the sport (see my prior posts, "What Is A Good New York Sports Injury Case?" and "Assumption Of Risk Doctrine Won't Protect Ski Resort For Falling Chairlifts"). But where the injuries flow directly from one of the know, inherent, risk of the game, all we can, and should, do is grieve the loss of a beautiful young athlete, son, brother, friend and teammate.

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