September 14, 2013

Lessons For New York Personal Injury Lawyers From Obama's Syria Debacle: Careful With That "Line In The Sand"!

line in sand.jpgPresident Obama reportedly told Syria, in sum or substance, "if you use chemical weapons on your people, we will use punish you militarily".

Then Syria used chemical weapons on its people. But instead of inflicting military damage on Damascus, as promised, Obama hemmed, hawed, asked his allies what they thought, asked Congress what it thought, etc.

So what happens the next time the U.S. says to a dictator, "if you do x, we will do y"? What does an empty threat do to our credibility for future negotiations?

The Syria debacle offers a lesson to my fellow New York personal injury lawyers. Some of you sometimes tell adjusters or defense lawyers, "we won't accept a dime less than X amount of dollars" and then, when the case is close to trial, take less than X amount of dollars. What happens the next time you negotiate with that adjuster or lawyer? What credibility do you have?

The lesson is clear: If you draw a "line in the sand", stick to it. But there is a second, and perhaps more important lesson: Except in rare instances, don't draw lines in the sand! Instead of drawing a line, say something like, "my client refuses your offer of X amount of dollars and instead demands Y amount of dollars". Don't say, "my client will never accept a penny less than Y amount of dollars". The reason is that, although your client might tell you she won't take less, and she might mean it, when push comes to shove and you are at the courthouse doors, and there is a decent offer on the table, your client might change her mind, which she or he has a perfect right to do.

Sometimes I do draw a line in the sand. But that's when I am 100% sure my client will stick to it. For example, in a recent case I knew my client could not take less than $400,000 because the first $400,000 of any settlement was earmarked for "liens" and "offsets" owed to a workers' compensation carrier. A $400,000 settlement was the same as $0 to my client. So in that case I could clearly tell the adjuster "we won't ever settle for less than $400,000 and in fact we need quite a bit more".

Credibility once lost is tough to regain. Don't lose 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 and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

September 2, 2013

Drunken Student's Dash Into The Gorge Will Go To Trial

gorge in ithaca.jpgI came across an article recently in the New York Law Journal titled "Drunken Run Could Leave Cornell Liable for Fatal Fall". It's about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named "Fall Creek Gorge trail".)

Cornell moved for summary judgment (to have the case dismissed) based in part on New York's General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.

Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not "hiking". The judge relied on a definition of "hiking" in the Department of Environmental Conservation's regulations, which says hiking is "walking through trees for pleasure or exercise". Here the kid was not "walking for pleasure", the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.

I am sure there will be an appeal, and who knows where the Appellate Division will land on this issue. It seems incongruous, and unfair, that the law would bar a hiker's claims but not those of a nocturnal barrier-hurdling drunk.

The judge also rejected defense arguments that Cornell had no duty to warn of the danger of falling into the gorge because it was "open and obvious". That's because the photos in evidence showed vegetation that appeared to obscure the lip of the gorge and, remember, it was nighttime.

This is the kind of case that makes folks on the street shake their heads and exclaim, "you can sue for anything in this country!". But keep in mind that this unfortunate kids parents' are not saying, "our kid was blameless". Rather they are saying, "what about you, Cornell"? You knew of five prior falls into your gorge involving alcohol. You knew your students liked to "let their hair down" on the weekends to escape your ivy-league pressure cooker. Given all you knew, shouldn't you have replaced that flimsy split-rail barrier with a real fence?

Will a jury buy the argument? 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 and Syracuse Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


August 31, 2013

Judge Admits He Is Wrong!

judge.jpg.jpgJudges, like most people, have a hard time admitting they're wrong. Well, maybe even a harder time than most people. That black robe is an ego-inflater. A lowly lawyer gets elected, dons the robe and -- voila! -- he is suddenly addressed as "your honor". People stand up when he walks into a room. You get the picture.

That's why an article in the New York Law Journal -- titled "Judge Admits Mistake and Slashes Damages" caught my eye. The article is about a judge who admitted he was wrong without having to be told so by an appellate court. He said his original decision - which awarded $1 million to the children of a deceased medical malpractice victim as compensation for their lost future financial support and parental guidance - was "misinformed", and then slashed the award down to $150,000.

Ouch kids!

The judge explained that a re-read of the trial testimony made him realize the father was kind of a creep (ok so I'm paraphrasing). His financial support was on-again-off-again, and his "parental guidance" barely had a pulse (there I go again . . .). The same sad trickle (more poetic license on my part) of fatherly love and support demonstrated before dad's death was likely to have continued had he not died. In other words, he wasn't worth much as a father before he died, so why should we think he would have been worth much at all had he lived?

This about-face is a double whammy for the kids. They got screwed by having a creep for a dad and now that he's dead they're getting their money award slashed because -- well -- their dad was a creep.

Would have been much better if the judge had gotten it right the first time instead of lifting the kids' hopes up with Decision number 1 just to smash them to the ground with Decision number 2. I can't help felling sorry for these kids. . .

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


August 27, 2013

No Tort Law = Sidewalk Hell (CNY Injury Lawyer Explains . . .)

IMG_0242.JPGIMG_0243.JPGIMG_0245.JPGIMG_0248.JPGIMG_0250.JPGIMG_0262.JPGIMG_0261.JPGIMG_0257.JPG



-------------------- As my regular readers know, I was in Guatemala for the last few days taking deposition testimony. Why so far away to take testimony? I blogged about that here.

I love Guatemala. Beautiful country, weather and people. But some things are definitely better in the U.S. For example, the sidewalks in Guatemala City are treacherous. How treacherous? Take a look at these photos I took all within a few blocks of my hotel. And that's the best section of Guatemala City!

Traveling to a country like Guatemala makes me appreciate U.S. "tort laws", that is, the laws that allow us to sue for money damages if we are injured. These laws are necessary to keep us safe. If the laws are stripped from the books (as "tort reformers" would have it), there is no financial incentive for companies and others to keep things safe.

In Guatemala, unlike in the U.S., there is hardly any tort law. For example, you can't sue your local municipality (city, town, village, etc.) for poor maintenance of sidewalks or for creating defects there. If they leave a gaping hole in the sidewalk and you trip or fall in, tough bananas!

Still think tort law is a bad thing? Still want "tort reform"? Take a good look at these photos and think again . . .

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

August 23, 2013

CNY Injury Lawyer Posts From Guatemala . . .

1236746_10201899072505171_1829587463_n.jpgI'm posting this blog from my hotel here in Guatemala City where I am hanging out with my two clients, Hugo and Lucio, shown in the photo with me. You guessed it, I'm the tall one.

I already blogged about why this Central NY injury lawyer had to come all the way to Guatemala to take their testimony. Today's blog is about how much I admire these guys. Why? They are outstanding fathers.

Several years ago they realized the three dollars a day they were earning working the corn fields in their pueblo wasn't ever going to fill the hungry little mouths at home. So they did something about it. They "went north", as they call the trek to the United States around here.

Yes, they broke a few immigration rules along the way. I am not going to tell you that was "right". But letting your little ones go hungry ain't right either. What would you have done in that situation? You'll never know, will you?

So yes, they "went north". "Up north" they worked their asses off for five years or so, sending almost every sweat-soaked peso back home to those hungry little mouths. Meanwhile, they didn't see their wives or kids for all those years.

Then they got blown up in a propane gas explosion. Now they are having trouble feeding those little mouths again. You can't see it in the photo, but they have burn scars all over their bodies.

I won't go into who is to blame for that explosion. A jury will hear the full story one day. I hope the lawsuit I filed on their behalf will one day help them feed those mouths again.

I like to think of myself as a good dad. Heck, I take my kids to Disney World and save up for college, don't I? But that seems to pale in comparison to what these guys have done for their kids: moving to a country where they don't understand the language or culture, working their asses off in a brutal job under a hot sun for 12 hours a day, sometimes 7 days a week, missing seeing their kids grow up, all so they could give their kids a decent meal every day.

Let's face it; as a dad, I'm a slacker compared to these guys.

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


August 18, 2013

Central NY Injury Lawyer Invited to Speak to NY Judges about His Recent Article

Seal_of_New_York.svg.pngThis Auburn New York personal injury lawyer has a new feather in his cap. I have been invited to speak at a state-wide meeting of New York Court of Claims judges in Cooperstown, NY on September 26. It appears that several judges read my recent article, which recently appeared in the New York Bar Law Journal, on the topic of "governmental immunity", and want to hear me talk on the subject.

Governmental immunity is hot button topic for New York personal injury lawyers and judges. The "governmental immunity defense" can be raised by any governmental agency that is sued for personal injuries, including the State.

The Court of Appeals (New York's highest Court) has recently come down with a series of rulings that tilts the playing field of this defense in favor of the government at the expense of victims of the government's negligence. (That's what I wrote about). Since Court of Claims judges preside over all personal injury claims brought against the State of New York, it is easy to see why the judges want to hear from me.

There are three adjectives that describe New York's governmental immunity law: convoluted, byzantine and labyrinthine (I couldn't decide which one of those adjectives to use so I used them all!). In my article, I try to simplify and clarify the law while explaining the new Court of Appeals rulings.

So how will I feel telling a room full of New York judges (some of whom I will be appearing before on my personal injury cases) what the law is and how to apply it in their Court rulings? This time I have only one adjective:

SCARED!!!

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


August 17, 2013

"Beam Me Up Scotty" -- Central NY Injury Lawyer Discusses Courtrooms of the Future

beam me up.jpgNext Tuesday I'll be jumping on a plane to Central America. But I won't be on vacation. I'll be representing my Guatemalan clients as they get deposed, remotely, by video, from Syracuse, NY. There'll be an interpreter with us.

How did I end up in Guatemala on a case? That story made the front page of the New York Law Journal and the Syracuse Post Standard. I blogged about that here.

Technology has changed every aspect of law practice. A few decades ago, what is about to transpire would have been impossible. Your Central NY injury lawyer will be sitting next to his clients in Guatemala City while insurance defense lawyers in Syracuse New York ask them questions by video. We will see those lawyers on the screen, and they will see my clients. They will be face to face. It's kind of like Star Trek. "Beam me up, Scotty"! The video of my clients will later be presented to the jury.

I wonder if the "courthouse of the future" will be completely digital and remote. A "virtual" courthouse. Instead of appearing physically in the Courtroom, witnesses will pop up on a large courtroom screen from whatever city or town they reside in. Lawyers, too. Perhaps brick-and-mortar "courthouses" will be totally replaced by virtual ones.

The sticking point for us lawyers is that we believe, perhaps incorrectly, that a witness' credibility is easier to judge live. Live testimony allows for better viewing of moist foreheads, blinks, twitches, stray glances, and body shifting. Those witnesses could be just nervous, or lying.

But with the pace of technological advances, who can doubt that, within the next 100 years, we will be able to project a 3D-high-definition image of a witness that almost exactly duplicates the live person? Then what? Will I be able to try my personal injury lawsuits from my living room? How about from a vacation home in Fort Lauderdale?

Sound incredible? Too sci-fi for you? Well what do you think attorney Abraham Lincoln would have said if someone had told him that lawyers in the future would be taking live depositions from 1,000 miles away (Syracuse to Guatemala) through something called a "screen" . . . ??!!

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


July 31, 2013

There's Something About Mary . . .

Mary.JPGI recently blogged about our paralegal Ellen Williams' retirement after twenty eight years of outstanding service. Although Ellen is, in our view, irreplaceable, we nevertheless did our best in trying to replace her.

We believe we hit the mark with Mary Jones. In the photograph above she is at the Zonta Club of Auburn Women's Golf Tournament (which this law firm sponsored).

Mary comes to us with a long history in the "justice business". She was a paralegal in real estate law for seven years, in bankruptcy law for 5 years, and at the Cayuga County District Attorney's Office for twelve years. She was also clerk for the Cayuga County Legislature for five years.

We didn't just plop Mary down in Ellen's still-warm chair. Mary "shadowed" Ellen for a few months before Ellen retired. Yes, she is still "learning the ropes", but she's a fast learner, a self-starter, and we expect her to be fully operational in no time at all.

She's ahead of the learning curve so far. For example, she worked tirelessly and with great skill to help get me ready for a recent personal injury jury trial I had in Onondaga County.

So, dear clients, you will be hearing from Mary instead of from Ellen from now on. Please welcome her to our team - and to your case. If you have any questions about your case, you can email her at mary@michaels-smolak.com, or call her at the number below.

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

July 29, 2013

Michaels & Smolak Honors "Hometown Heroes" All Summer Long At Auburn Doubledays' Home Games

Thumbnail image for Thumbnail image for united way.jpgThumbnail image for Thumbnail image for doubledays.jpgGiving back to those who make Cayuga County strong is a priority for the Auburn New York personal injury lawyers at Michaels & Smolak. That's why Michaels & Smolak is honoring United Way of Cayuga County volunteers as "hometown heroes" at all Auburn Doubledays home games this summer.

How does this Michaels & Smolak charitable program work? We asked the United Way of Cayuga County to nominate volunteer "heroes". They chose dozens of volunteers who work with their 23 partner agencies and 41 programs throughout Cayuga County. At each home game, one United Way volunteer is publicly recognized and honored as a "hometown hero" and receives six game tickets and food vouchers for his or her family and friends. A different volunteer is honored at each home game, with a total of 38 volunteers honored. Michaels & Smolak funds the program, including the free tickets and food for the "hometown heroes".

What's really cool about this program is how it recognizes that volunteering is not just an individual effort, but a family, community one. If family and friends aren't right next to the volunteers while they are giving of their time and talents, then they are often helping them balance things at home and work so that they can volunteer. That's why we at Michaels & Smolak are treating not only the volunteers, but their family and friends as well. We are proud to "take them out to the ballgame"!

We hope being publicly honored and treated will be an exciting reward for United Way's hard-working volunteers, and will inspire others in the audience to "step up to the plate" as volunteers as well.

The United Way of Cayuga County is committed to improving lives in our community by advancing the common good. It focuses on creating long-lasting changes that will better our community today, tomorrow and in generations to come. Donations to the United Way help fund 41 programs that assist thousands of people throughout Cayuga County. To learn more about the United Way, or to make a donation go to www.unitedwayofcayugacounty.org or call 315-253-9741.

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
Auburn NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


July 28, 2013

Why Life In The Country Is More Dangerous Than In The City: Central NY Injury Lawyer Explains

fear.jpgSome things we think we know, even things we feel certain are true, turn out not to be, on closer examination, false. I have come across a recent example of this. I do not believe I have been alone in having assumed, all my life, that it is safer to live in the country than in a big city. Haven't you, too, always assumed life up here in peaceful Central New York is safer than in those dangerous big cities like New York?

Well, your assumption (and mine) was wrong! A recent study shows that cities are in fact safer than the country. If you think about it, I'll bet you can guess why. Here's a hint: It has to do mostly with cars and guns.

Give up?

Ok, I'll tell you. First, you have to understand that the most common causes of death-by-injury are car crashes and gun accidents. And guess where there are more guns? Yup, in rural areas like upstate New York. Sure, you hear about the gun violence in the big cities. But gun accidents are much more prevalent, per capita, in the country because guns are just so much more numerous there.

And death by car accidents is three times more frequent in rural areas than in cities. That's because city folks mostly get around by subway or bus and, even if they use cars or taxis, speed limits are a lot lower in the city, so accidents are less deadly than on our country roads.

True, the risk of death by homicide is higher in cities, but not enough to make up for all those car and gun-accident deaths in the country.

Add all this to the fact that, if you are injured, you can get to a good hospital faster in the city than out the country, and you can see why it makes sense that life in big cities is in fact safer than in rural places.

So am I packing up my suitcase and moving to the City where I'll be safer? No way! I'll take my chances up here in this dangerous Central New York rural area, where I'll continue to represent victims of our dangerous way of life, especially car accident victims.

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


July 20, 2013

The Travon Martin Effect In Central New York Personal Injury Cases

images.jpgThe jury probably did the right thing in the George Zimmerman case. Given the absence of good evidence about what happened between him and Travon Martin during those last five minutes, the defense established reasonable doubt about whether a crime, under Florida law, had been committed.

That doesn't mean Mr. Zimmerman is innocent (just not guilty "beyond a reasonable doubt") and it doesn't mean he was right for tailing a young man simply because he was black.

But what does this have to do with my Central New York personal injury cases? A lot, actually. Every time we represent an African American in a Central New York courtroom, we have to wonder --- will the jury treat him or her fairly? Will the jury harbor prejudices?

There is no question that a jury emphasizes more with victims who look, act and talk like they do. This is human nature. The more "different" someone is from you, the easier it is to distance yourself from their situation, from their suffering. And when that victim is black, the problem is magnified.

Example: I represent a young black man who was stabbed and sliced up in a Syracuse night club. We allege the night club was negligent in allowing the violent felon who assaulted him to circumvent the metal detector and security check and enter with a sharp metal instrument. Will the jury (which is predominantly white in all Central New York courtrooms) prejudge our client based on his race? Will they assume that since he is black he himself must be violent (he is not!), that he somehow provoked the attack (he did not!) or willingly participated in it (not!)? Would the jury harbor the same suspicions if our client looked like their (white) son or brother?

These are all questions we personal injury lawyers must address in "jury selection", the first part of the trial where lawyers get a chance to talk to prospective jury members about their possible prejudices. But the real problem is not the prejudices the jury will admit to - those we can deal with by removing jurors who admit they can't overcome their biases. The real problem is the prejudices that the jurors either won't admit to or don't even recognize in themselves. Those jurors will probably remain in the jury box - and their hidden prejudices may percolate into their decision making.

Be honest. You've got prejudices. If you are a fair-minded person, you do your best to overcome them, to judge people, in the words of Martin Luther King, by the "content of their character and not by the color of their skin". But that doesn't mean those prejudices aren't there, where they've remained imbedded deep in your subconscious since early childhood. Can you overcome them in the jury deliberation room? If you happen to be in my jury pool on this case, that's what I'll be trying to figure out . . ..

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

July 20, 2013

Ellen Retires!

20130529_145511.jpg20130529_145427.jpgTwenty eight years ago a smart, hard-working mother-of-two from Elbridge, NY -- Ellen Williams -- sent a resume and cover letter into the law offices of Lee S. and George M. Michaels (our predecessor firm) . Her two daughters were now old enough so she felt she could go back to work. She had just graduated with an associate's degree in paralegal studies from Cayuga Community College in Auburn, NY. Now she wanted to realize her career goal - a job as a paralegal at a local law firm.

Meanwhile, Lee S. Michaels (our senior partner) was on the hunt for a smart, ambitious paralegal. His personal injury practice was growing by leaps and bounds. He wasn't finding the time to draft all his own pleadings, review and summarize the hundreds of pages of medical records that landed on his desk every month, set up and calendar his depositions, and reach out to his clients for additional information he might need.

Lee received Ellen's application, met her, and hired her on the spot.

Twenty eight years later this past May, Ellen drafted her last pleading, fielded her last phone call, and summarized her last medical record. By that time, she was paralegal to four busy lawyers. Yes, she left us - for retirement - and headed off on a whirlwind tour of the USA with her husband of almost four decades - Tom.

One of the amazing things about Ellen was her steel-trap mind. You could buzz her at any time and ask her, "Ellen, what's going on with the Jones case", and she would be able to tell you, without referring to our computer database, exactly what was going on, what we were waiting to receive, what needed to be done, and, to boot, what she thought of the case.

More amazing still, you could buzz her and say, "Ellen, remember that case about 12 years ago where I briefed that legal issue of strict liability for scaffold accidents -- I could really use that brief" - and she would tell me the case -- usually without pause.

She had an uncanny ability to read a file, meet a client, and know exactly what the issues were going to be.

We aren't the only ones who miss Ellen. Clients loved her, too.

To celebrate her many years of outstanding service, we regaled Ellen -- and all our staff - with a meal at a fine Finger Lakes eating establishment - The Elderberry Pond -- overlooking the orchards and vineyards that make our little corner of the world so special. We also tucked a gift away in her travel suitcase!

In the first photo above, Ellen is sandwiched by me (on left) and partner Jan Smolak on right. The next photo shows Ellen's husband -- Tom -- and our whole staff. Partners Lee Michaels and Dave Kalabanka partook in the festivities, too, but somehow escaped the camera's lens.

Ellen is still "on the road" with Tom, so she probably won't be reading my blog posts for a while. Ellen, wherever you are, bon voyage, and by the way, could you tell me the name of that case about 7 years ago where I briefed the issue of liability for rear-end collisions?. . . I could really use that brief!

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293


July 12, 2013

Central NY Injury Lawyer's New Article on Municipal Liabilty

Picture of Michael Bersani .jpgFolks, it's been a while since I have had the time to blog --- been in trial! But now that I am out of trial - and have some breathing space - I wanted to post an article of mine that was recently published in the New York State Bar Association Journal. It's titled "The Government Function Immunity Defense in Personal Injury Cases in the Post-McLean World".

This article is for my fellow-lawyer readers. It walks you through the most recent legal requirements for getting past the "governmental immunity defense", which is often raised when you sue governmental entities such as the State, counties, cities, towns, villages, school districts, etc. I hope this article helps my fellow lawyers navigate the rough seas of municipal liability.

And I will be traveling throughout the State, once again this fall, to present to my fellow lawyers my municipal liability update ---- a compendium of new case law on the subject. It will be great to see old friends from all around the State. Hope to see you then!

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 Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

June 2, 2013

New York Ratchets Up Penalty For Texting While Driving

Thumbnail image for Thumbnail image for texting and driving.jpegHey text-a-maniacs, you just got a raise! Starting yesterday, your habit will cost you five points on your license instead of three. Of course it could also cost you your life, and the lives of others.

To put this into perspective, texting while driving will now cost you as many points as driving past a stopped school bus or speeding 30 miles per hour more than the posted speed limit. It is now at the top echelon of driving offenses.

And for good reasons. Gov. Cuomo justified the new law (not that he needed to) by stating the obvious: Texting while driving is a growing problem, especially among young drivers.

How do we know? The number of texting-while-driving tickets issued has soared, from about 3,500 in 2011 to 30,000 in 2012. And those are just the ones who got caught! The average age of the drivers caught is only 26.

How else do we know? Just ask me. Among my New York personal injury case load, texting-while-driving cases are growing. Rear-enders are prominent. Most offenders are young. The texting offender never suspects the guy he is following is going to stop in the middle of the road to turn into a driveway.

Cuomo has also proposed a law suspending new drivers' licenses for 60 days if they are convicted only once of texting while driving.

We at Michaels & Smolak applaud governor Cuomo for ratcheting up the penalties for texting while driving. Texters -- kill your habit because your habit kills.

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 Lawyers

Michaels & Smolak, P.C.

1-315-253-3293

May 5, 2013

Suing For Injuries Caused By Stray Farm Animals In New York

cow in road.jpg-thumb-300x208-39572.jpgYou're driving along a country highway, rounding a curve, when ---- bam --- you run into a cow. Yes, a cow! Why? Farmer Brown left a gaping hole in his fencing, and the big dumb animal wandered out. Can you sue the farmer for this obvious negligence?

Until just the other day, the answer was, surprisingly, "no", at least not in New York. The rule in New York (which I blogged about last year) was that you could sue the owner of an animal which harms you ONLY if the owner knew or should have known the animal had "VICIOUS PROPENSITIES".

This "vicious propensities" rule grew out of dog bite case law. The courts reasoned that it wouldn't be fair to hold a dog owner liable for his dog's first bite unless he knew his dog was a problem. This was sometimes referred to - though not very accurately - as the "one free bite rule".

But the "vicious propensities" rule never made any sense with stray cows or other farm animals. Since cows are never "vicious", farmer Brown could let Bessie out onto the roadway innumerable times and cause innumerable accidents but suit would always be barred because the animal was not "vicious".

The law in New York, as it stood, was an outrage.

No longer. Just the other day, the Court of Appeals changed the law with the case of Hastings v Suave. In that case, the Court ruled that "a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept" even when the animal did not display "vicious propensities".

But what happens if a (non-vicious) dog or cat strays out into the roadway and causes a collision? Can you sue the owner then? The Court left that question open for another day, stating "we do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case".

That "different case" should not take too long to go up to the Court of Appeals. Cats and dogs running into the road and causing accidents is fairly common.

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 Lawyers

Michaels & Smolak, P.C.

1-315-253-3293