Central New York Injury Lawyer Blog

Articles Posted in Motor Vehicle Accidents

dogI have a love/hate relationship with dogs. I love my dog, but I hate dogs who chase me on my bike or who snarl at me on my runs. When I go bike riding out on the country roads near Geneva, NY where I live, I even carry a small pepper spray canister to defend myself from man’s best friend.

Yes, I protect myself from “unleashed” dogs.  But unfortunately, New York State negligence law does not.  Believe me.  As a NY personal injury lawyer who handles dog bite / attack cases, I know first hand!

The problem in New York – unlike in other states – is that to hold a dog owner liable for injuries, you need to show the owner knew or should have known the dog had “vicious propensities”. If you do, the owner is “strictly” liable to you for your injuries.  That’s all well and good where a dog with a history of biting or attacking bites you, but not much else.

For example, consider this situation: A nice, friendly dog, who has never bitten anyone, is negligently released by its owner onto a busy roadway and darts out into traffic or into a bicyclist, causing an accident. Shouldn’t the injured victim be able to sue the dog owner for his negligence?

Almost two years ago I blogged about a case called Doerr v. Goldsmith where a New York Appellate Court (the First Department) was confronted with those same facts. The five judges voted 3-to-2 that, even when a dog doesn’t have a “vicious” bone in his body, negligently releasing a dog near traffic can be grounds for liability.  I loved that ruling!  That’s why I blogged about it.

But that lovely case has now been undone. Just the other day, the Court of Appeals – the highest Court in New York State – reversed the Appellate Court’s ruling, holding that dog owners cannot be liable for negligently handling or releasing their dogs into traffic. To sue the dog owner, you must show the dog had vicious propensities the owner knew or should have known about, and that this viciousness caused your injuries.  Period!

This is a big disappointment for bicyclists, motorcyclists and even regular motorists. And the rule makes no sense, especially in light of a recent case from the same court (Court of Appeals), Hastings v. Sauve, which held that an owner of a cow – or other farm animal — can be liable for negligently allowing the cow to roam onto a road and cause an accident. Obviously, the cow is not vicious, but still the owner can be held liable. So why not the same rule for dogs? Why can’t a dog owner be held liable for allowing its dog – even a friendly non-vicious one — to run loose and cause a car or bike accident?

The rule just seems so unfair in so many ways. For example, if two people are playing “catch” with a ball near a busy street, and the ball strikes a cyclist, causing him to fall, the players can be held liable for negligence. But if those same players send their dog running across the street, and the dog causes an accident, they can’t be held liable. Does that make sense?  Of course not.

Our Court of Appeals usually gets it right, but this time they certainly did not.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com                   I’d love to hear from you!

Michael G. Bersani, Esq.

michaels-smolak.com
Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

pedestriancrossingI was glad to read in the news today that the condition of a 15-year-old girl who was struck on Monday by one car and then run over by another, in Auburn, New York, has improved. The girl’s condition has been upgraded from “life-threatening” to “fair” at Upstate University Hospital, according to police.

It doesn’t surprise me that this accident happened on Grant Ave, one of the busiest — and most accident prone – roads in all of Cayuga County. We have represented many car accident victims who were hit on that busy arterial.  The posted speed limit is rarely obeyed there — motorists are in a hurry, rushing between Auburn and Syracuse and all the places in between.

The girl was trying to cross Grant Ave in a rain storm shortly after 9 p.m., near the Metro Mattress store. She was apparently trying to reach the MacDonald’s on the other side of Grant Ave. A driver trying to make a left turn from Grant onto McIntosh Drive struck her. Then, to make matters much worse, a second car ran over her as she lay in the road.

Let’s pray for a complete and speedy recovery.

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

 

courtroom-thumb-300x199I read recently about the case of a man charged with attempting to murder his mom by ramming her with his SUV as she sat in her living room. He ran it right through the wall. Why? Apparently he had a financial dispute with her. In my humble opinion, that’s a pretty lame excuse for murdering your mother. And geez, the weapon he chose was pretty bizarre, too.

The guy obviously has a screw loose, or more likely a brain full of loose screws.

The mother, of Mamakating, in Sullivan County, NY, ended up in the hospital with severe injuries. The son/driver, of Bloomingburg, NY, was charged with several crimes, including second-degree attempted murder. (Shouldn’t there be a separate and more severe charge for attempted mom murder?)

Horrible story. But it brings up an interesting issue: Will the SUV’s auto insurance cover mom’s injuries? After all, auto insurance covers auto accidents, right? And this was one hell of an “accident”, right?

Wrong. It wasn’t an “accident”. It was an assault with a vehicle. Car insurance covers only “accidents”, not vehicular assault. If you deliberately cause an accident, that’s no accident, and you have no insurance.

So think twice before you try to run your mom over. You’ll go to jail, and you won’t have any insurance either.

Keep (mom) 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 Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

car accidentsWho says nothing in life is “free”? Here’s some free legal advice from your Central New York injury lawyer:

Do not — I repeat, do NOT – drop the F-bomb on a cop while he is arresting you for homicidal drunk driving after you have just killed a teenager.

That’s exactly what a Syracuse homicidal drunk driver did at Destiny USA. The crash happened at Hiawatha Boulevard and Solar Streets, at the entrance to Destiny USA. He had just gone through a red light and struck the side of a car carrying two teenagers. The teenage driver was killed and the passenger wounded. When the cops arrived on the scene, he explained the accident – in a drunken stupor – like this: “they pulled out in front of me, (f-bomb) them”. He also told the officer to “go (f-bomb) yourself” when asked to submit to a blood test for alcohol content. He is facing up to 25 years of prison if convicted, but I say they should tag on an extra ten for hubris. The guy has had three drunken driving charges in the past five years.

There was a hearing just the other day to see if the statements he made–including the F bombs — can be entered into evidence against him in his criminal trial. His lawyers argued that they should not because none of the officers read the defendant his rights before the sobriety test or in the ambulance. The judge decided the remarks can be used at trial. Can’t say I disagree with that ruling.

My heart goes out to the families of his many victims. As for the perpetrator? (F-bomb) him!

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 Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

lane splitting motorcycle.jpgIt’s motor cycle season again. While I don’t have the statistics for last year yet, I know that a total of 4,381 motorcyclists died in U.S. crashes in 2013. That’s about 30 times the number of people who died in car crashes, even though many more cars than bikes travel our roads.

Many of those deaths are not the bikers’ fault; four-wheel drivers just don’t see motorcycles. They then cut them off or come blasting out from stop signs into their right of way.

But of course many bikers cause their own death or serious injury, too. One way to do it is called “lane-splitting”. That’s where you ride through the space between cars in parallel traffic lanes. If a cop catches you, it’ll cost you 2-points on your license. If a car “catches” you, it could cost you your life.

The practice is outlawed for a reason. A motorist could change lanes into you, or open his door and hit you, or drift into you and strike you, all because your sudden presence between lanes is so unexpected. As you pass those slow or stopped vehicles, you will also pass thorough their blind spot, so when they want to change lanes, they may not see you.

Hey motorcyclist. Don’t lane-split. If you do, and you get clobbered, I’ll try to help you prove the automobile driver was at fault — at least partly. Yes, I’ll be your New York motorcycle accident lawyer. But it will be nearly impossible to get you a clean 100% victory in Court if you lane-split. Some of the fault will lie with you.

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

traffic ticket.jpgAs a recipient of more than a few speeding tickets within the last few decades, I took an interest in this NY Times article about a $58,000.00 speeding ticket in Finland.

The offender was clocked at 64 miles per hour in a 50 mile per hour zone. Doing the math, that works out to $4,143.00 for every mile per hour above the limit.

Why so high? What determined the high price was not so much the offense as the offender. The speedster was a multimillionaire in one of the few countries in the world where fines for traffic infractions are calculated based in large part on your income. The mindset in this Scandinavian country is that the sting of the fine should be felt equally by rich and poor. The sting of a $100 fine is felt by the street sweeper but not by the banking tycoon. Thus, in Finland Fine-land the government calculates your fine based on half your daily net income multiplied by the number of days of income you should lose according to the gravity of the offense. This particular $58,000 ticket represented a half-a-day’s income of the wealthy offender.

I wonder how Fine-land would handle the fine for a U.S. visitor like me caught speeding on its roadways? Would they subpoena my US income tax returns in order to calculate the “sting effect” of the fine?

I’m not anxious to find out. I think my next Scandinavian vacation will be in neighboring Norway.

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 auto accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

car upside down in river.jpgWarning: This is a sad story.

A man’s 16-year old daughter was killed when her car veered off a bridge, overturned, and flipped into a creek. After the accident, the authorities agreed to install a guardrail on the bridge to prevent similar tragedies.

Thirty days went by and still no guardrail. The grieving father – who could not stand the sight of the unprotected bridge – decided to take matters into his own hands. He began to build a temporary guardrail. As he was in the act of doing so, the authorities asked him to stop. He refused. He just could not stand to see another car go by unprotected.

He was arrested for “interfering with government property” and had to post $5,000 bail to stay out of jail. After posting bail, the father gave a brief interview to a TV camera. His statements are so poignant as bring tears to your eyes. He holds no grudge against the arresting officer: “The officer had to do his job, and as a father, I had to do mine”, the man said. “All I wanted to do was save lives. When you’re a grieving parent, when you’ve lost your child, you do what you’ve got to do.”

Who can blame him?

Hey you police officers, give the guy a break. Install that guardrail right away, give this grieving dad his bail money back, and drop all charges.

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

1-315-253-3293

car under truck.jpgThis is not easy to stomach. Not for you. Not for your teenager. But watch it. And then make sure your teenager watches it. The driver of the car in the photo was texting and did not see the tractor trailor stop to turn left. The video below is very graphic. Don’t text and drive!

video of texting while driving 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 & Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

snowy blizzard.jpgDid you see the recent article in the Syracuse Post Standard about weather-related motor vehicle death statistics? Statistics can be pretty boring. But I found this pretty interesting.

The new study shows that SNOW, SLEET AND FREEZING RAIN cause more than 800 vehicle-related deaths each year in the U.S. And one of the highest snow-related death areas was – you guessed it – Upstate New York’s “snow belt”. Hey, if Syracuse basketball can’t be number 1, at least Syracuse is number 1 at something . . . :)

Lake effect snow is literally deadly. Not surprisingly, the intensity of snowfall correlated strongly with the number of vehicle deaths. Also not surprisingly, New York City has a much lower rate of snow-related motor vehicle deaths than Upstate. Onondaga County and Oswego Counties had the highest rates in the state.

What about rain? It is deadly, too. In fact, it contributes to nearly four times as many vehicle crash deaths as snow and sleet do. But that’s because it rains a whole lot more than it snows and sleets. During the 2002-2012 study period, 2,876 people per year died in rain-related U.S. car accidents.

Actually, almost none of these deaths are caused by weather conditions alone. They are caused by drivers driving too fast for those conditions. Drivers often underestimate the slipperiness of roads in rainy and snowy conditions. They lose control of their vehicles or can’t brake fast enough when a hazard appears.

So slow down! Especially in snow, sleet and rain.

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

car accident.jpgLet’s say you get into a car accident in New York State and it was the other guy’s fault. But when the police officer shows up and “investigates” he determines it was your fault. And he says so in his accident report. You sue the at-fault driver for your injuries. Can the cop’s police report come into evidence against you? Can the cop testify it was your fault?

The answer generally is, no and no. Why not? The conclusions in his report that it was your fault are “hearsay”. Further, it’s for the jury to determine whose fault it was based on the evidence. Letting the cop testify about whose fault it was would unduly influence the jury. The cop can testify only about the evidence he found at the scene, for example skid marks, the damage to the cars. He can also generally testify about what the PARTIES said to him, but not about what non-party witnesses said to him. That would be hearsay, too. Those witnesses must be brought into court to tell the jury what they saw and must be subject to cross-examination. The cop can’t tell the jury what they said because then the right of the parties to cross-examine those witnesses would be lost.

Some of these concepts were explored in the recent case of Watch v. Gertsen. In that case, the cop determined, after talking to the participants in the accident, that two motorcyclists who collided into the back of a car were at fault for following too closely. In the personal injury trial, the trial judge let the cop testify about his conclusions in the report. The jury’s verdict aligned with the cop’s conclusions. But the appellate court reversed, finding that it was error to allow the police officer to testify about fault from the accident report. And rightly so. What good is a jury trial if a cop is allowed to say whose fault it was? That’s the job of the jury, not the cop.

The cop of course can issue a ticket to the party he believes is at fault, but even that ticket won’t get into evidence in the personal injury trial unless whoever got the ticket pleads guilty to it. Even if the driver is convicted of the traffic violation, it still won’t get into evidence unless he has pleaded guilty to the charge. Why not? Well, all these rules protect our jury system. Juries are to determine fault, and cops and other law enforcement officers – stay out of it!

Keep safe!
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 & Syracuse NY Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293