Central New York Injury Lawyer Blog

Articles Posted in Municipal Liability

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In 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.

But I also am blogging to show you how different the two suits will be. The boy suing the teacher and school district for the shoulder injury has to show only that the teacher used unnecessary and careless force in removing him from the classroom. But if the beat-up teacher wants to sue someone for her injuries, she has got some big hurdles to overcome. Let’s talk about that.

Suing the out-of-control mother and the student assailants will likely be a worthless exercise because none of them are likely to have any assets to go after and, even if they have liability insurance in their homeowners’ policies, it won’t cover assaults.

Next, the teacher may consider a suit against the school district for negligence in allowing the enraged mother to get past the security system. That sure was a big breach of security! But here the teacher may run up against a workers’ compensation defense. You generally can’t sue your employer if your employer provides workers’ compensation. But in downstate NY many teachers have collective bargaining agreements in which workers’ compensation does not bar suit against the employer.

Even if there is no workers’ comp bar, however, the case will be nearly impossible to win. That’s because her suit is likely to be barred by the “governmental function immunity” defense. Since a school district is considered a governmental entity, most suits against it brought by anyone except a student are subject to the governmental immunity defense. To get past the defense, the teacher must show – among other things – that the school district had a “special duty” to her beyond the duty it had generally to other teachers and visitors at the school to protect them from attacks. That means the teacher will have to show – among other things – that the school made some kind of (at least tacit) promise directly to her to protect her from this kind of assault, and that she relied on that promise to let her guard down, which resulted in her allowing herself to be put in a vulnerable position where she was assaulted. All that is nearly impossible to prove.

But students injured at school don’t have to worry about this defense because the school has assumed a duty to the students by virtue of the doctrine of in loco parentis, which in Latin means “in the place of a parent”. It means the school district has legal responsibility for the well-being of the student while the student is in its custody, just as the parent does at home. There is no governmental immunity. The school district will be liable for its teacher dragging the student by the arm, thus dislocating or fracturing his clavicle, regardless of whether the student can establish any “special duty”. The duty from the school district to the child stems from the in loco parentis doctrine, not from any “special duty”.

I know, it’s all very complicated. That’s why you always need to consult with a lawyer experienced in suing school districts when someone you love – or you – are injured on school premises. And you need to get a lawyer quickly. Generally, you have to serve a “notice of claim” on the school district within 90 days of the incident to protect your rights. That’s not a lot of time!

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 School Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

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——————– 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

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

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

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.

For example, almost all New York public entities require an injured claimant to serve them with something called a “notice of claim” (a document designed to alert the public entity of an impending lawsuit). But while 90% or so of them required that it be served within 90 days, the other 10% or so required that it be done within 30 days, and some even 60 days. And while the statute of limitations for suing 90% or so of them was a year and ninety days, about 10% required you to sue them within a year. Further, the manner of serving the notice of claim, and the official upon whom it had to be served, varied from public entity to public entity. If you served the wrong official, in the wrong way, your goose was cooked!

This morass of hard-to-find, unpredictable procedural requirements led to a predictable result: Many lawyers, even very smart ones, were unaware of the shorter time limitations, and were thus missing them. Also, they were sometimes serving the required notices of claims on the wrong public official or in the wrong way. As a result, perfectly valid personal injury and wrongful death claims against at-fault public entities were being tossed out of court on arcane procedural grounds, which of course gave birth to new claims against the lawyers who inadvertently failed to comply with the labyrinthine rules.

Enter the Uniform Notice of Claim Act — a breath of fresh air! It establishes a uniform procedure, with uniform time limits, for claims against all New York public entities. A lawyer needs to know only one set of rules regarding how, and when, to serve the notice of claim and to file the lawsuit.

Highlights from the act are:

• A uniform manner of service of the notice of claim. The claimant simply serves the notice of claim upon the secretary of state. The secretary of state then sends a copy of the notice of claim to the public entity within 10 days.
• A uniform 90-day time limit for serving the notice of claim.
• A uniform one-year-and-90-day statute of limitations for injury cases and 2-year statute of limitations for wrongful death cases.
• A claimant (or lawyer) who inadvertently “screws up” by serving the wrong public entity within the 90-days can apply to the court for leave to serve the right one after the 90-day time limit, and the application should be granted unless the public entity can demonstrate that it suffered “substantial prejudice” in the investigation or defense of the claim.

If you like simplicity and fairness, this legislation is a welcome change. If you like convoluted laws that confound and trick even smart lawyers into making fatal mistakes, and that get governmental wrongdoers off the hook, it’s a bad change. In other words, if you are a public entity, you hate this law (and yes, they vigorously lobbied against it!), but if you are a neutral, fair-minded citizen (such as you, dear reader!) you should love it.

And of course we New York personal injury lawyers love it too. We can sleep easier, assured that we did not overlook some bizarre, arcane, hard-to-find time limit or procedural requirement for suing a public entity on behalf of our injured clients.

Keep safe!

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

Michael G. Bersani, Esq.
michaels-smolak.com Syracuse and Central NY Personal Injury Lawyers Michaels & Smolak, P.C.

1-315-253-3293

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.

In Buffalo, though, things are different, and in fact, similar to the rule in New York City. By a special local law in Buffalo (413-50[A] of the Code of the City of Buffalo), the abutting landowner is responsible for maintaining the city sidewalk abutting his property and is liable for injuries caused by his or her failure to maintain the sidewalk, and no prior written notice is needed.

The case is called Davison v. City of Buffalo, 96 A.D.3d 1516, 947 N.Y.S.2d 702 (4th Dep’t 2012). Prior to this case, the Court had concluded that the Buffalo local law did not make the abutting landowners liable for defects in the abutting city sidewalk, but this new case changes the law in this regard.

This rule, while it may make homeowner insurance more expensive in Buffalo, will help victims of poor sidewalk maintenance.

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

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.

What’s that? It’s a funky little area of the law strewn with wacky rules for suing New York State and its subdivisions such as towns, cities, counties, school districts, and other public entities in New York. These public entities have unique personal injury defenses unavailable to other defendants, such as very short time limits, complex pre-suit requirements, “governmental immunity” defenses, and “prior written notice” rules. And so on.

Believe me, you don’t want me to blog about all this strange stuff (unless you need a sure-fire insomnia fix). But if you’re weird enough to be interested in this kind of thing, you can check out my 2012 New York Municipal Liability publication. You can also read the chapter I wrote a few years ago on this subject for the New York State Bar Association’s treatise on New York personal injury law. Yes, I am considered a State-wide expert in this little niche. If you get hurt by a city, town, school, county, the police, the State, or anything in between, just call!

Would I rather be wailing on an electric guitar as thousands of beautiful young things jumped up and down and gyrated madly to my rock rhythms? Sure sounds like a better gig than staring out at a bunch of half-asleep lawyers! But so far Bruce has neglected to audition me for that lead guitar position on his team.

As another great rock n’ roller once said, “you can’t always get what you want, but if you try sometimes, you just might find . . . you get what you need”.

See ya in that room full of lawyers (zzzzzzzzzzzz . . . .)

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

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):

Lawsuit revived against fire departments in firefighter’s death in 2002 house fire

Firefighter line of duty death (2002) lawsuit reinstated (This article is of special interest to Fire Officers, and those that aspire to be)

Fire Department Officers Liable in Double Firefighter LODD

Trial in lawsuit over firefighter’s death in Pompey house fire set to begin today

$1.2 million goes to widow of Fayetteville Firefighter Timothy Lynch under proposed 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 and Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

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

Thumbnail image for photo__1501307_michael_bersani.jpgFinally, I’m done! I have finished preparing my 2010-2011 review of all New York State municipal and government liability cases. I am ready to go “on tour” around the State educating other New York personal injury lawyers about the new case law on suing New York State, cities, counties, villages, towns, school districts, public authorities, and other governmental entities for personal injuries. I started this project back in early July, and just now finished. This is my fourth consecutive year preparing the case review. I can say, without exaggeration, that I am probably the only New York personal injury lawyer, or even the only lawyer — or the only person — to have read almost every New York case on governmental liability for personal injuries for the last four years!

Why is that such a big deal? Well, it really isn’t – except for one thing: It gives me an edge on analyzing and preparing New York personal injury cases against New York State and its cities, counties, villages, towns, school districts, public authorities, and other such entities.

When I was in college, a professor once defined a “generalist” as someone who knew nothing about everything, and a “specialist” as someone who knew everything about nothing. Well, I guess I am a “specialist” in the very narrow field of New York governmental and municipal liability. Fortunately, I also know quite a bit about other areas of New York injury law, including New York car accidents, construction injuries, defective product cases, just to name a few. I guess that makes me a “generalist”, too. Bottom line: I am a generalist and a specialist! But I haven’t quite figured out whether that makes me a generalized specialist or a specialized generalist . . .

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