Central New York Injury Lawyer Blog

Articles Posted in Municipal Liability

Picture of Michael Bersani
Tomorrow I head to Buffalo to give my annual “Municipal Liability” update lecture to a room full of lawyers there.  I have already given the same talk in Albany, Syracuse and Rochester earlier this month.  Buffalo is the “end of the road” for this year.

I’ve been giving the annual update on this topic to my fellow New York personal injury lawyers all around New York state every year since 2007.  To prepare the talk, I have to  read EVERY published case from all New York courts on the topic for the entire year, which amounts to hundreds of cases.  I then have to write an “outline” summarizing the most important hundred or so cases.

Lots of work?  Sure.  And it is UNPAID work.  Totally voluntary.  But still, I get more out of it than what I put in.  How?

shoulder injury.jpgteacher knocked out.jpgIn nearby Tioga County, NY, a 10-year-old boy was recently hospitalized after his math teacher caused this injury (see photo) to the boy’s shoulder. The kid’s mom posted the photo on her Facebook page. Mom and child have served a “notice of claim”, which is the precursor to a lawsuit, on the School District. The notice of claim alleges that the boy was working on a math question, when teacher overheard him say, “c’mon.” The teacher then confronted the boy, dragged and lifted the boy by his right arm from his seat, and pushed him out of the classroom. He has apparently suffered a separation of his clavicle bone. Ouch!

Meanwhile, in another part of New York State — down in Long Island — the mother of a middle school student received a call from her 12-year-old daughter complaining that her teacher had “put her hands on me.” The outraged mother raced to school and somehow got past security (that should not have happened) and into the school. She then made a beeline to the teacher’s classroom, attacked her, put her in a headlock, and then threw her to the floor where the teacher lost consciousness. That’s her lying on the floor in the photo. (It’s all captured on surveillance tape). But that’s not all. While lying on the ground unconscious, the teacher was beaten by several students, including the mother’s 14-year-old niece. Talk about being an unpopular teacher!

So why am I blogging about these two unrelated events? Well, first, they are somewhat related in that they suggest there must be something in New York State’s drinking water making people crazy at school.

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.

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.

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!

maze.jpgThe biggest single change for 2013 in New York personal injury law is, without a doubt, the Uniform Notice of Claim Act, which Governor Cuomo has signed into law on December 20.

It’s a real game changer. Let me explain.

Until now, New York public entities (counties, cities, towns, villages, school districts, public authorities, fire districts, water districts, public libraries, etc.) have enjoyed disseminating a jungle of inconsistent procedural rules and time limits for starting personal injury lawsuits against them.

Thumbnail image for sidewalk.jpgThis blog post is directed to my fellow New York personal injury lawyers who might have trip and fall cases from Buffalo, New York, but also it is worth reading if you have been injured by a defective sidewalk in the City of Buffalo, NY.

As my regular readers know, every year I cull through all the new cases involving “municipal liability” in New York State. I read all the reported decisions regarding lawsuits brought against cities, towns, counties, school districts, the State of New York and other governmental entities in New York. I then summarized the important new cases and travel around the State lecturing other New York personal injury lawyers about the new developments.

This year I noticed a new case from the Appellate Division, Fourth Department dealing with sidewalk defect cases in Buffalo, New York. Before I explain the case, you first have to understand that, in most cities in New York, trip-and-fall-on-sidewalk cases are very difficult because you have to sue the city and you also usually have to show that the city had “prior written notice” of the defect that made you trip and fall. And as a practical matter, there is almost never prior written notice of such defects because nobody goes around writing the City about sidewalk defects. At most, they might make a telephone call, but that is not enough to trigger liability for future falls; it must be prior written notice.

72x10007E1A2458-700x466.jpgI am going on tour again this fall. Tickets are still available to catch my show. Email me and I’ll make sure you get in. My itinerary? Buffalo, Rochester, Albany, Syracuse and New York.

Bruce Springsteen performed in all those places. But unlike Bruce, when I am done with my gig, I really don’t expect to see any lighters flick on.

No, no, I am not a rock n’ roll star like Bruce. Rather, I’m just a humble New York personal injury attorney dashing around the State to fill other New York accident lawyers in on the newest developments in “New York Municipal Liability” law.

firefighters.jpg.jpgJust before jury selection a few months ago, I tentatively settled a complex Syracuse New York wrongful death case I was about to try. For the settlement to be final, we needed Onondaga County’s legislature to approve it, and several layers of workers’ compensation approval, too. We finally got the last stamp of approval last week.

The case, which has bounced its way through the court system for more than 8 years, and went up on appeal twice, generated a lot of press, not only locally, but nationally, especially in firefighter publications. It is believed to be the only case where a court has ruled that a firefighter, and his or her employer, can be held liable for negligently issuing firefighting instructions or orders that end up killing or injuring another firefighter.

Yes, I am proud of this win. It took years of hard work, innovative legal arguments, the scaling of the high and thorny firefighter “red wall of silence”, untold hours of preparation (ask my wife and kids!) and, of course, a large dose good luck, too. This blog post is a kind of “scrape book” for the case, and that’s why I am listing below a few of the headlines this case generated over the years (you can read the full articles by clicking the headlines):

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.