Central New York Injury Lawyer Blog

I read in the Syracuse Post Standard today a story about a Syracuse firefighter who fell into a 12-foot shaft while searching a smoke-filled, burning building on James Street yesterday. The firefighter had opened a door he assumed would lead to a stairwell, took a step in, and --- well he was wrong --- it did not lead to stairs, but rather to a shaft for a "wheelchair lift". He plunged to the floor 12 feet down and got injured.

Reading this story reminded me of the special rights New York firefighters and police officers have to bring New York personal injury claims against building owners who fail to follow building codes and other statutes and regulations. New York's General Municipal Law (GML) section 205-a (for firefighters) and 205-e (for police officers) basically say that if the officer or firefighter is injured on the job because a statute or regulation (usually a building or fire code) was violated, he or she can bring a claim against the building owner.

What makes GML 205-a and 205-e so special is that the building or homeowner who violated the regulation or statute can't use the defense of "comparative negligence" against firefighters or police officers in court. This means that even if the firefighter or police officer was partly at fault for the accident, he or she still gets 100% compensation for his or her injuries, medical expenses, lost wages, etc., from the code-violating building owner, with no reduction at all for his or her own comparative fault. All the officer or firefighter has to show is that the building owner was negligent in violating the building or fire code, and that this violation was at least "indirectly" a cause of the injuries he or she suffered.

So, in this Syracuse firefighter's case, the building owner might be tempted to blame the firefighter for having "assumed" that the door led to a stairway without verifying this first. But if the owner violated a building code by failing to lock the door to the shaft (so that innocent visitors would not accidently walk into the shaft), then the firefighter has a solid GML 205-a case, even if he was partly to blame for the accident.

Why did our law makers pass these special laws to help firefighters and cops? Because they put their lives on the line every day to save our lives and our property from loss by fire or crime. The least we can do for them is pave the way for their full compensation from culpable building owners. These are good and just laws. And I am honored to have represented several of "New York's Best" and their families in firefighter and police injury and death cases.

I just settled a Syracuse New York workplace injury case today for $1,000,000. It was a fair settlement. Because of some Labor Law violations, my client fell off a scaffold at a construction project in Syracuse. He landed on his feet, and his lower back suffered what is known in the medical community as a "spondylolysis" (a small fracture in the pars of the vertebrae) which later developed into a "spondylolystheisis" (the small fractures caused one of the discs to slide relative to the disc below, narrowing the spinal canal, and causing impingement).

Like I said, the settlement was fair. We used a mediator in Rochester. It took just about all day to hammer out the settlement. But in the end my clients were happy with it.

The case was scheduled for an Onondaga County personal injury jury trial in just a little over two weeks. For me that means that I was already prepared to try the case. I knew the case backward and forwards, and had my arguments all set to present to the jury.

When a case settles this close to trial, I always have mixed emotions. On the one hand, I am glad to have the case settled. On the other hand, I regret not being able to present the case to the jury.

Smart lawyers tell me that the best case is a settled case. It means there is no longer any risk of losing, or getting a bad result. Sure, there is always a chance you could have done better at trial. But trial is often a crap shoot.

Most of my clients don't like crap shoots. They like the sure thing. Most my clients prefer to settle. They want certainty. They are risk-adverse. And who can blame them? Usually they are already strapped for money because their injury has put at least a dent in their earning capacity. Once a decent amount of money is on the table, it is hard for them not to grab it and call it a day.

The pot of money my client got was not only adequate, it was fair. So today was a good day. I made my client happy. I got a fair result. Now on to the next case!

Syracuse New York personal injury jury trials are fewer and farther between than only a decade ago. The same can be said for all Central New York personal injury jury trials. In fact, the same trend is being noted throughout the entire State, as well as the other 49 States. Read about it for yourself, but clicking here and here. All civil jury trials are down in numbers, everywhere.

Let's be clear; although the number of lawsuits filed has remained steady over the last decade, fewer and fewer of those lawsuits are going to trial. Here's a vivid demonstration of the trend: In 1962, more than 11 percent filed civil lawsuits in federal court went to trial. By last year, however, that percentage had dropped to 1.8.

If almost 98% of personal injury lawsuits are not going to trial, what is happening to them? Many of them are being resolved by "alternative dispute resolution", (known as "ADR"). In some areas, ADR has overtaken trials as the predominant way to resolve personal injury lawsuits as well as other types of civil disputes. ADR consists mainly of "mediation" and "arbitration". "Mediation" is a non-binding settlement procedure where a neutral "mediator", usually a lawyer or a retired judge, tries to bring the parties to a reasonable settlement that is acceptable to both sides. "Arbitration" is an informal hearing where a lawyer or retired judge hears the case, and decides it, but the formal rules of evidence, such as the bar against hearsay, don't usually apply.

What has changed since the 1960's? Why are cases being resolved by ADR rather than jury trial? Here's my take on it; juries were more plaintiff-friendly back in the 1960's. In the 1960's, many New York injury lawyers would rather take their chance at trial than settle out of Court. But with all the negative publicity personal injury lawyers and cases have gotten since then (the "MacDonald's case", etc.), the jury pool is now biased against personal injury victims and their lawyers. More and more Syracuse New York personal injury cases, as well as such cases everywhere else, are tossed out by cynical juries. This makes Central New York accident lawyers, and such lawyers across the nation, more willing to consider ADR.

Also, ADR was hardly even heard of back in the 60's. It really wasn't an option. Now it is a fast-growing method of resolving New York accident cases, as well as other civil cases, principally because, compared to trial by jury, both the costs and the risks are greatly diminished.

The costs are reduced because the parties usually don't have to pay experts to give testimony; their reports can be submitted informally. At trial, the formal rules of evidence would not allow for this. Experts are expensive. For example, I am trying a case next month where the medical doctors I am putting on the stand are charging me a total of about $4,000 each, and since I have 4 of them, that will cost us $16,000. Mediating or arbitrating the case would probably save me, and my client, that money.

The risks are diminished in ADR, at least in mediation, because the injury victim is almost sure to walk away with some money, whereas a jury trial is a roll of the dice; we could win big, we could get a goose egg verdict, or we could get anything in between.

Most of my clients would prefer to take a little less than they feel they are entitled to rather than risk getting a thumbs-down verdict by a jury of strangers who might not understand their case or injury. In the end, resolving a case by trial is a gamble - and an expensive one - that most clients would prefer to avoid.

A good New York trial lawyer has to be prepared to jury-try his cases. But if he is truly representing his clients' interest, he will be open to ADR and consult his client about this option as well.

Being a New York personal injury lawyer has its perks! A client took me out to dinner the other night. It was a fine meal at a great Geneva New York restaurant, Port's Café. The restaurant is only about a mile and a half from where my client's tragedy happened 3 summers ago --- his wife was hit and killed by a tractor trailer as she crossed routes 5 and 20 on foot, in a crosswalk, in the City of Geneva.

The dinner was a kind of celebration. We had settled his Geneva New York wrongful death case after almost three years of intense litigation, which included the filing of two lawsuits, and the taking of many depositions. And although no amount of money could ever replace the loving wife he lost, he had finally found peace. He felt that at least a measure of justice had been done. We had made them pay! To him, the money meant they had finally accepted responsibility for the accident after years of denial.

Because the wrongful death settlement was for a substantial sum of money, and my client does not need the money at this time (he has a good job and no children to support), I suggested he should consider a "structured settlement". A "structured settlement" is an insurance or financial agreement in which the plaintiff does not take the entire settlement from the insurance carrier in "a lump sum payment" right away, but instead forgoes immediate payment of at least some of the money, which he will receive later in "periodic payments" (usually monthly). A structured settlement is usually created through the purchase of an "annuity", which guaranties future periodic payments at a fixed amount over a fixed period of time, with interest added in so that you end up with more money.

Example: If you "structure" $500,000 to be paid out over a 10 year period, with monthly payments starting in the year 2020 and extending through 2030, you will end up getting paid far more than $500,000, because the money will have earned interest. You might end up with $800,000 or more, depending on the interest rate of the structure.

And you won't pay a dime of income tax on the money that is earned from the structure until you actual receive the payments. If the client took that same $500,000 as a lump sum, and invested it, he would in most cases have to pay income tax on the money earned from his investments as they are earned. Not so with structured settlements.

When we help a client find the right "structured settlement" for his or her financial needs, we always carefully research structures offered by various insurance carriers and financial institutions to get the client the very best return on his or her money, i.e., the best interest rate, with a secure triple "A" rated institution.

My client was very happy with how I handled his case, and his settlement. That's why he was taking me out to dinner. He even got a gift for my wife!

Yes -- being a New York personal injury and medical malpractice lawyer has its perks --- but the best perk of all is a happy client!

Not much to write about here, just watch the video below:

Insurance companies love to snoop. They want to dig up all the dirt they can on you. They think that if they know everything about you, they will eventually unearth something they can use to torpedo your case.

For example, both federal and New York State law give you a right to medical privacy. Just because you are injured in an accident caused by someone else's negligence, and you sue them, doesn't mean you give up that right. But many insurance companies act as if this gives them a right to find out everything about your medical history. Whether my client is the victim of New York medical malpractice, a slip-and-fall case, a car accident, or other type of New York personal injury case, the insurance company lawyer will almost invariably ask me for "unrestricted" medical authorization, which, when signed by my client, will give the insurance company lawyer the right to access any and all medical records regarding any and all treatment my client may have gotten from any medical provider from the beginning of the world to the end of the world!

But New York personal injury and medical malpractice law doesn't give them a right to such broad authorizations. They can't snoop! They have a right only to the medical records that are relevant to the parts of the body you are claiming were injured. For example, if you are suing for a broken arm, they have a right to see all medical records, both pre-and post-accident, for treatment for that arm. They can't find out about your C-section, or your hemorrhoids, or about that depression you were treated for years ago!

A couple of years ago, in a case known as Mayer v. Cusyck, a trial judge gave me a bad ruling. He ordered me to supply the insurance company lawyer with unrestricted medical authorizations. I refused, appealed the Order, won, and the defense attorney ended up getting only those records relevant to the part of the body we were claiming was injured.

Every time a defense attorney asks me for "unrestricted" medical authorizations, I write them back and ask them to read Mayer v. Cusyck. But even when they read it, they don't always give up. I just finished battling this issue out in a case. The defense attorney made a motion to force me to turn over unrestricted medical authorizations. At first the judge appeared to agree with the defense attorney, but then I asked the him to read Mayer v. Cusyck. He did, he "got it", and then did the right thing: He gave the defense attorney ONLY the records relevant to the part of the body my client injured (her mouth and teeth).

It always surprises me how many New York personal injury lawyers allow their clients to sign unrestricted medical authorizations. They don't seem to care, or know, about their clients' right to privacy. They should care, and they should know! And so should you. If your New York personal injury lawyer asks you to sign unrestricted medical authorizations, have him or her read this blog post. Then have them call me if they want some legal briefs on this issue.

Today I got a call from a fellow New York personal injury lawyer in Buffalo, New York. He is representing the widow of a firefighter who died while fighting a fire. The case he is building revolves around some code violations by the homeowner and some firefighting rules not heeded by fellow firefighters. The widow is obviously furious that her husband had to die because of other people's mistakes, and she wants justice.

The widow's lawyer had read about a case I had won on appeal a few years ago. News of that case , Prince v Onondaga County, had spread like wildfire when I won it because, I was told, it was the first time in the nation that a Court had ruled that an emergency responder could been held liable for failure to follow the "incident command system". The incident command system is what emergency responders, such as firefighters, are supposed to follow when they arrive to an emergency scene. The command system is headed by an "incident commander", usually the first officer-level firefighter who arrives on the scene. All orders and information flow from the incident commander out to the various units of the firefighter team. If individual firefighters start acting on their own without following this system, it can lead to disaster. The left hand does not know what the right hand is doing. That's what we allege happened in Prince v. Onondaga County.

Coincidentally, in both my case, and in the Buffalo case, the firefighter died after a floor, which had been compromised by the fire, gave way, causing the firefighters to drop down into the basement where they were trapped in the fire and smoke with no escape. I can hardly imagine a worse death!

I haven't gotten to trial yet on that case, but I hope to get there sometime next year.

One of the great things about being a New York accident lawyer is the camaraderie and good will among fellow injury lawyers. We help each other out anytime, and in any way, we can. I think I helped out my (now) friend from Buffalo today. He was very grateful, and I was glad to help him.

What is a "Loss-of-Consortium" Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.

Wew, that was a mouthful! Let me try to break that down.

Although the uninjured spouse of a New York accident victim has not suffered any "physical" injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal "services" that the injured spouse would have continued to provide but for his or her injury. The "services" lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of "loss of consortium" is rooted in traditional principles of "man and wife", it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.

The "loss-of-consortium" claim is also called a "derivative" claim because the uninjured spouse's claim depends on, and derives from, the injured spouses claim. The two claims are always brought together.

What Is a Loss-of-Consortium Claim Worth? Frankly, juries don't usually award much for New York "loss of consortium" claims, and therefore, their "settlement value" is low, too. Although jury awards for loss-of-consortium claims vary, if you look at a lot of cases, and average them out, you will see (as I have) that they amount to, on average, about 10% of the injured spouse's award. Big loss-of-consortium awards usually ride on the coat-tails of big awards for catastrophic or very significant long-term injuries such as brain damage, paralysis, incontinence, or loss of sexual function.

How Do Loss-of-Consortium Claims Lead to Trouble? One thing that can throw a monkey wrench into a New York personal injury lawsuit is when married couples divorce or separate while their injury and loss-of-consortium claims are pending. Sometimes the separating or divorcing spouses fight about how to spit up any settlement money, or whether to even settle at all. A New York personal injury lawyer can't ethically represent one spouse against the other, so the lawyer's hands are tied! The spouses have to work it out between themselves, or hire separate lawyers to represent their interests.

If the case goes to trial during or after a separation, it wreaks even more havoc. The separation or divorce saps the jury of any desire to compensate the loss of marital services, so the claim tanks! Even if the non-injured spouse refuses to drop the loss-of-consortium claim, and we usually recommend they do, the jury can award loss-of-consortium compensation only for the period before the separation.

Bottom Line: Is there a lesson to be learned from all this? Yes: Let your New York personal injury lawyer bring your loss-of-consortium claim with your injured spouse's claim, but don't expect too much from it, and, please, stay married, at least till the end of the case!

I recently read a blog post by a New York criminal defense attorney, Nicole Black, about a juror's misconduct in a criminal case. The juror had sent a Facebook "friend" request to a witness while the trial was pending. (Jurors are supposed to remain absolutely objective and not communicate with any witnesses or parties during trial). The witness later testified that he had no idea who this "friend" was, and ignored the request. The Court ruled "no harm, no foul" and refused to reverse the verdict based on the misconduct.

But the story makes an important point about today's juries. Social media, including Facebook, are a relatively new phenomena and courts, and lawyers, continue to struggle with how to deal with them. While I know that the judge will instruct the jurors that they are not to google or use social media or any outside sources too "look up" the witnesses and parties, I am convinced that many jurors disobey these orders.

That's one reason why the New York personal injury lawyers at Michaels & Smolak make sure our clients are aware of their "exposure" on Facebook and other social media. What would a jury think if they saw your Facebook page? Would the jury see that photo of you dancing and think it was taken AFTER your injury, when in fact it was taken before? Would the jury see that photo of you partying with your friends and draw negative inferences about you? These are serious concerns to a personal injury lawyer who wants to present his client in the best possible light to the jury.

And although some jurors may disobey the judge's instructions and look you up on Facebook, it is almost a certainty that the insurance company and its lawyers, who are trying to torpedo your case, will do so. And don't assume the "security" features can keep anyone out, especially someone as intent on getting in as an insurance company lawyer. They will look for every possible photo or statement in your Facebook page and try to contort its meaning to undermine your claim. They may even confront you with your Facebook page in Court!

Moral of the story? Look carefully at your Facebook page. And talk to your New York personal injury lawyer about it

Fourth of July, Independence Day, or whatever you want to call it. It's here! And in New York, where private fireworks are illegal, many citizens are pitted against the law. I personally spend the evening of the Third on Otisco Lake, which is illuminated like a roman candle by private fireworks displays, though I don't buy or handle fireworks myself (sounds kinda corny, but I like to obey the law!)

If you ARE going to "do" fireworks, here some fireworks safety tips from your Central New York injury lawyer:

Use fireworks outdoors only.

Keep water handy (a hose or bucket).

Don't try to alter fireworks or combine them. Use them as they were meant to be used.

Never try to relight a "dud" firework. Wait a half an hour, and then put it under water.

Keep a safe distance from the "shooter".

If you are the shooter, wear safety glasses.

Don't drink if you are the shooter.

Be at least 13 years old if you are the shooter.

Hand-held sparklers are a common cause of injury, especially among toddlers, who may trip and fall on a sparkler and burn themselves, including in the eye. A child who falls on his sparkler has fallen on a welding torch!

Never let young children handle fireworks.

Most Fourth of July fires are caused by throwing fireworks from moving vehicles. Don't!

Do not use fireworks while under the influence of drugs or alcohol.

No getting around it; Americans love their fireworks for the Fourth, legal or not. But if you are going to engage in this (illicit) joy, follow the above safety tips to avoid accidental fires, explosion injuries, burn injuries, and other personal injury.

Believe me, New York personal injury lawyers need their stress relief. And for me that means lots of vigorous exercise. Mostly I run and bike. I am training for a few short triathlons (swim-bike-run) this summer. I am participating in the Geneva, New York "Musselman" sprint triathlon as well as the Skaneateles, New York "Skinnyman triathlon race.

I wish I had time to train for the longer, "half-iron" triathlons, but with a wife, two kids, and a very busy personal injury law and medical malpractice New York law practice, I just don't. I can get out for those 30-mile rides during the week, and for those 40 or 50 mile rides on the weekend (and I slip in a few 6-mile runs a week, and an occasional swim, too), but I just don't have time for more. My family is important to me, so, gosh, I want to spend time with them, too!

This training has been eating into my blogging time, though. So far, I am happy to report (I think) that none of my readers is experiencing withdrawal symptoms!

Besides the blogging and the training, guess what --- I have law work to do at the office! I am preparing for two trials this fall (yes - I start that far ahead of the trial date!). I am also keeping on top of my other accident cases, and am preparing my annual "New York Municipal Liability" update --- a yearly presentation I give to other New York personal injury lawyers around the State to fill them in on changes in the law regarding suits against New York cities, counties, villages, towns and the State of New York itself.

So if my blogging falls short a bit this summer, I hope my readers will forgive me (and that they don't thank me!).

As a mere local Central New York personal injury attorney, I really didn't want to get into commenting on the national disaster that is the ongoing Gulf of Mexico BP oil "spill". (I put "spill" in quotes because this word, bantered about by BP and echoed by news media, hardly seems appropriate. It is more like an underwater oil "volcano". Take a look at the video of it here).

I don't even want to comment about the "perfect storm" combination of cascading mistakes that led to the "spill" itself. After all, as an accident lawyer, I know all too well that big-company accidents, even cascading series of them, are all too common (because corporate cost-cutting carelessness is all too common). Nothing new here. BP, join the club of about a zillion other big corporations who have injured countless Americans with their crappy defective products!

And, heck, I don't even feel like commenting about BP's deliberately underestimating the extent of the "spill". Corporate lies are just too common to push my buttons.

So what do I want to comment about? Glad you asked. Excuse my French, but what really pisses me off, what has my fingers pounding on this key board right now, is that BP HAD NO PLAN TO DEAL WITH THIS KIND OF A LEAK, NO PLAN AT ALL TO STOP IT IF IT HAPPENED!!! This hole they created at the bottom of the sea, which is spewing death to the Gulf, apparently can't be plugged! The latest brilliant idea?: Throw "heavy mud" at it, and if that doesn't work, knotted rope, pieces of tires and golf balls,

Golf balls? Come on! Do you think if BP had put as much money into designing a "what-if" safety device for dealing with this leak as they spent on designing drilling techniques for reaching deep sea oil they could have developed a stop-gap? Of course! But spending the money to GET the oil made them a buck, while spending the money to STOP the oil from reaping an environmental disaster didn't. It's that simple.

So how do we motivate corporations to develop safety devices if the profit motive isn't there? Two answers: (1) better and stronger government regulation and (2) lawsuits. Lawsuits make them "pay" for accidents, and therefore motivate them to be safe.

And I would just love to sue these guys. Come on, somebody, bring me a case against BP! Punitive damages? No question. Maybe as the oily mess makes its way up the east coast (as some are now predicting, via the Keys), there will be some mom-and-pop beach hotel (I love representing the little guy) on the shores of Long Island that will go bust and want to bring a New York lawsuit to recover their losses.

There are many common misperceptions about New York personal injury lawsuits. I will be discussing these in my blog posts over the next few days. One of the most common mistaken ideas is that if you "are almost killed" by someone's negligence, you must have a case. This is usually wrong. Usually, when a client says to me "I almost died in that accident", my response is, "then you ALMOST had a case"! Let me explain by way of examples.

Let's say you were the victim of a medical mistake during surgery. Your rushed surgeon inadvertently and unknowingly cut an artery and, as a result, you bled internally for quite a while before anyone at that hospital realized it. As you were on death's door, they figured it out, opened you up, and stymied the bleeding. End result: You spent and extra week in the hospital, but otherwise suffered no additional harm.

You call up a Central New York medical malpractice lawyer (hopefully this one!) and tell him you want to bring a New York medical malpractice lawsuit. You are angry that the doctor was so careless that he almost killed you. Besides, he never even apologized! Do you have a case? No, at least not one worth bringing. In New York (and in every other State as far as I know), "almost dying" because of medical malpractice or other negligence is not worth a dime in court, or in settlement. You are only allowed compensation for what you ACTUALLY SUFFERED, not for what you "almost" suffered. Since you were completely unaware you were "dying" at the time, you did not suffer even from the fear of death, much less from death itself.

Now let's take another example. Let's say you are on a motorcycle and a tractor trailer tries to pass another car as it comes straight at you. The last thing you remember before waking up in the hospital is the terror, the pure animal fear, of death. Now, is that worth something in court?

Yes. Fear is a type of emotional suffering that is, in fact, compensable in New York (and in all other states as far as I know) if accompanied by physical harm. But it is worth a lot less than you might think. Most juries won't give much for fear. They prefer to compensate injuries they can actually SEE (and they will probably have plenty to see in a tractor-trailer-motorcycle crash case like this one).

There is at least one type of case where juries are sometimes very generous in compensating fear of death. That is where you actually die, but had no or little other suffering before death other than fear. In car crash cases, New York personal injury lawyers call this a "pre-impact terror" case. In the motorcycle example above, if you had never woken up, a jury might give your surviving family a lot of money for your "pre-impact terror". Why? Because you experienced no other pain or suffering, and they sure want to give your family something for what you went through.

So remember, if you "almost died", and are not otherwise injured, you probably have no case. But you have something much more valuable. Your life! So count your blessings.

When I tell them, they don't like what they hear. I try my best to explain, and usually they do understand, but they are never happy about it. Sometimes (thankfully not often) they even become angry.

What am I talking about? Turning a case down. You see I, like all other Central New York personal injury and medical malpractice lawyers, must sometimes tell potential clients that I am declining to take their personal injury or medical malpractice case. Many factors come into play in deciding whether to accept a personal injury or medical malpractice case. In the end, we lawyers need to make a business decision, based on a cost-benefit analysis.

What goes into that analysis? Since we are paid on a contingency fee basis (generally 1/3 of whatever we recover for the client) we need some reasonable assurance that: (1) we can win the case; (2) the injury is significant enough to warrant a jury verdict high enough so that 1/3 of it will "pay" for our time litigating it; and (3) the at-fault party has either enough insurance coverage or a "deep pocket" so we can collect on a judgment.

But the analysis is really more complicated than that. For example, if the injury is extremely horrific (examples: quadriplegia, amputations, severe brain damage), and there is plenty of insurance, or a deep pocket, then we might very well accept even a tough case where we only have a small chance of winning at trial. The potential payoff, even if unlikely, makes it worth the risk. Conversely, if the injury is minor, we usually want to see a very strong case, one we know we can win, before we accept the case. A small injury where we have only 10% chance of winning makes no business sense.

There is a saying in our business that goes like this: "You make money on the cases you turn down". What that means is that sometimes the decision NOT to take a case actually saves you money and makes your bottom line positive so you can stay in business. To survive, we have to make sure we don't get overburdened with a lot cases that have a poor potential for success and take a lot of our resources.

We wish we could help everyone. We can't. Some cases were just not meant to be. It is a good thing, really, too. Imagine if every injury were a case. Then our court system would be overwhelmed. There are many accidents and injuries, but only some of them have the necessary ingredients to make a good personal injury or medical malpractice lawsuit. Call or email us to find out if your case makes the grade.

Tort law works! I blogged about the Boy Scout case a few weeks ago, but I need to revisit it here. The jury has sent the Boy Scouts of America a powerful messge! This Friday, the jury, who heard and carefully considered all the evidence, slammed the Boy Scouts of America with an $18.5 million punitive damages verdict for having allowed a former assistant Scoutmaster to sexually abuse him as a boy. The jury had already found, in the first stage of the trial, that the Boy Scouts conduct in allowing a known sex abuser to be an assistant Scoutmaster was outrageous and reckless.

How reckless? Consider this: After the molester admitted to a Boy Scouts official that he had already molested 17 boys, the Boy Scouts of America kept him on as Scoutmaster, and kept him in contact (to say the least!) with the boys, where he went on to molest, among others, the plaintiff in this case.

This $18.5 verdict was in addition to the $1.4 million in compensatory damages the jury already awarded to the sex abuse victim earlier this month. Compensatory damages are meant to compensate the pain and suffering, medical expenses, lost wages and other direct losses to the plaintiff. With punitive damages, however, the focus is not on compensating the victim, but on the behavior of the defendant. Punitive damages do what their name suggests; they PUNISH the wrongdoer, here the Boy Scouts of America, for very wrongful, reckless or deliberately harmful conduct. In New York the way we describe the kind of behavior that calls for punitive damages (also known as "exemplary damages") is "conduct that evinces utter indifference or conscious disregard for the safety of others." Punitive damages are meant to deter similar behavior in the future.

Although many "tort reformers" criticize punitive damages as being bad for business, cases like this one show how useful they are to society. The punitive damages verdict here sends a powerful message to those who knowingly keep child sex abusers in contact with children. Whether the corporation is the Catholic Church, the Boy Scouts of America, or any other corporation, they will have to pay, and pay BIG, if they willfully or with gross indifference fail to protect our children from such harm. In other words,the message is this: "Either change your ways, or be prepared to get knocked down to your knees with these large verdicts". Bravo for punitive damages!