Central New York Injury Lawyer Blog

As a Central New York auto accident lawyer, I know first hand what kind of automobile insurance people should buy, but don't. Yesterday I blogged about the BIGGEST MISTAKE people make when choosing auto insurance. Today I am addressing the SECOND BIGGEST mistake they make. What is it? They don't buy "spousal liability coverage". What's that? Let me explain.

Let's say you are taking a road trip with your wife (or husband), your child and a friend. That makes you and three passengers. You make a mistake and cause a car crash (for example, you failed to see a stop sign, or you dosed off at the wheel). Everyone in your car is seriously injured. Of course, everyone is entitled to basic "no-fault" coverage for basic medical costs and lost wages, but that is very limited and can run out quickly when serious injuries occur. But your "liability" auto insurance should pay to compensate everyone in your car for their losses beyond no-fault, including pain and suffering (at least to the policy limit), right? Wrong! Everyone gets compensated EXCEPT YOUR SPOUSE.

Holy mackerel! How come? Because you didn't buy SPOUSAL LIABILITY COVERAGE. You see, traditionally New York barred spouse-against-spouse liability claims. The idea was that a marriage makes one person out of two, so a spouse-on-spouse claim was like suing yourself, which was not acceptable. When that notion fell by the wayside, and New York began allowing spouse-against-spouse personal injury lawsuits, including car accident lawsuits, the auto insurance industry in New York did not keep pace. Automobile insurance policies universally continued to provide an exclusion of coverage for claims brought by one spouse against the other.

Then, a few years ago, New York State passed a law that REQUIRES automobile insurance companies to offer their policyholders the opportunity to purchase spousal liability coverage. But you must REQUEST this additional coverage --- it is not automatically offered. That is because insurance companies don't make a profit off of this coverage. They don't really want you to buy it, which is why you should buy it. It's a great deal: Important protection for the person you love most at low cost. How can you beat that?

Why would anyone want to own car insurance that provides full liability coverage for complete strangers they accidentally injure in a car crash, but zero coverage to one's spouse? Not buying spousal liability insurance is therefore, in my book, the second biggest mistake you can make when you buy motor vehicle insurance.

My advice? Call your insurance agent or broker today and ask about spousal liability insurance.

Most people I represent in Central New York auto accident cases have made a big mistake. (No, it's not hiring me, really!). They did not buy the right insurance. I blog on this subject in the hopes that some of my readers will avoid this mistake. Let me explain.

I represent victims of car, truck and motorcycle accidents in Syracuse and Central New York every day. One of the first things I do when I am hired is to carefully examine all the relevant insurance policies. In a typical two-car accident, with no passengers, where my client was not at fault and the other guy was, I look principally at two insurance policies: my client's and the other guy's (there could be more policies applicable, but let's keep this simple).

What am I looking for? In the other guy's policy, I am looking for the liability (also called "bodily injury") policy limit. This tells me the maximum amount of money the other guy's insurance will pay to my injured client for his injuries. The minimum liability coverage in New York is $25,000 per injury and $50,000 per accident. Thus, in a minimum policy, my client would be entitled to a maximum of $25,000. It doesn't matter how hurt he is --- paralyzed, dead, whatever -- $25,000 is the most he can get from that insurer.

So why do I look at my own client's policy? Because this might get us beyond the limit I just talked about. In my client's policy, I am looking principally for SUM (Supplemental Underinsured Motorist) coverage. (I am also looking for something called "APIP" and other insurance coverage, too, but let's keep this simple). What is SUM? It is easiest to explain by way of an example. Say you are struck by a guy with a $25,000 liability policy and you have a $100,000 SUM policy. You get the $25,000 from the other guy and $75,000 from your own insurer, for a total of $100,000. Get it? Sure beats getting stuck with only $25,000, WHICH IS EXACTLY WHAT HAPPENS TO MOST MY CLIENTS. Why? Because they did not purchase SUM coverage above the minimum $25,000.

So that leads to this question: Why don't they buy more SUM coverage? BECAUSE THEY DON'T KNOW ABOUT IT. Their insurance brokers and agents just don't bother telling them about it. Why not? Perhaps because it is very cheap, and insurers don't make a lot of profit selling it. This also explains why you should definitely buy it! Call your insurance agent today and demand it! They have to sell you SUM up to the limit of your own liability policy if you ask for it (e.g., if you have a $100,000 liability policy, you can purchase up to $100,000 in SUM coverage). Protect yourself, and your family (your injured passengers can make a SUM claim on your policy, too). Don't make the biggest mistake most my clients make.

Cover-ups. Personal injury lawyers here in Syracuse, Central New York, and everywhere, love them. We play them for all they are worth. Think about those big tobacco lawsuits. Would those smokers have rung the bell with those big pain and suffering verdicts without evidence that the tobacco industry had covered up what they knew about smoking and cancer? Nothing makes a jury madder than a cover up. And nothing pushes the size of a personal injury verdict up more than raw anger.

This blog post is about the Toyota defective pedal dilemma. But first, let me digress (again!).

In a Syracuse New York personal injury lawsuit I handled a few years ago, the insurance company hired an expert witness, an orthopedic doctor, to testify that my client's lower back injury was pre-existing and therefore not caused by her slip and fall on the defendant-restaurant's wet floor. He based this opinion in part on the fact that my client had not complained about lower back pain until two weeks after the fall. He was wrong and I knew it. My client had reported back pain at the emergency room. I noticed, when I looked at the list of records the doctor claimed to have reviewed in reaching his opinion, that a key record was missing --- the emergency room records. So my cross-examination of the doctor was all about a "cover up". I insinuated that the insurance company had "covered up" this ER report, that they had deliberately hidden it from the doctor. Maybe they didn't. Maybe it was an innocent mistake. But the cross-examination was brutal, and the insurance company lawyer knew it. A large personal injury settlement soon resulted.

My point: Cover-ups piss juries off!

Now back to Toyota (finally!). Congress has apparently gotten its hands on "secret" Toyota documents from a turncoat former Toyota lawyer. Apparently, these secrete documents show that Toyota's own investigators had knowledge of the sticking pedal defect yet covered it up.

A cover-up is a game-changer for a personal injury case. The main issue becomes, what did they know and when did they know it? If Toyota can show it made efforts to investigate the sticking-pedal problem, and then to resolve it, and did not drag its feet, and especially that it did not cover up its findings, it will fair much better in court. But if the jury smells a cover up, all bets are off. Toyota can expect a string of large verdicts against it, maybe with punitive damages to boot. So, Toyota, if you have "covered up", get ready to "pay up"!

Yesterday, as I have done just about every Wednesday this winter (and for the past few winters), I took a van full of Boys & Girls Club kids to the Geneva, New York municipal ice rink for a skate. I pick them up at the Boys & Girls Club of Geneva at 6:30, we skate till 8:15, and then I drive them home. I finish up about 9:00. I can pack about 11 kids in the large van. The kids, ages 5 through about 11, love it. These are kids who otherwise would never get a chance to skate. Most of them don't have transportation to the rink. When Spring comes along, I take the same kids to the YMCA swimming pool. Otherwise, they wouldn't learn to swim.

Here's my law blog question for the day: What is my liability exposure as a volunteer? Does the law cut me any slack for being a good guy, or am I just as liable as anyone else if I accidently crash the van, or fail to properly supervise the kids, and cause them to get injured? If some of these kids and their parents were to bring a New York personal injury lawsuit against me for negligent driving or negligent supervision, what would happen to me?

I hate to admit it, but I am exposing myself to a lawsuit. The law in New York cuts me no slack at all. If I voluntarily agree to take these kids out and I negligently allow harm to befall them, their personal injury lawsuits against me will be valid. The fact that I was trying to give these kids a better life won't count for squat!

So how do I protect myself? Two ways: First, I try to be very careful. I drive carefully, and when I am with them on the ice or at the pool, I try to watch them carefully. Second, I buy lots of insurance, just in case.

Sometimes it can be scary, though. On the trip home, some of the kids can get a little rowdy. I am never 100% sure they are keeping their seat belts on. And when I drop them off at their home, I insist on watching them actually get inside there homes before I drive off because many of them live in "iffy" neighborhoods.

The scariest thing that happened was two years ago. A 6 year-old girl, named Jacqui, who had never swum before, jumped right into the deep end of the pool. She then began flailing around, going under, and taking in water. One of the life guards was able to pull her out. When she finally spit out enough water, and calmed down enough for me to talk to her, I asked her, "Jacqui, why did you jump into the deep end if you did not know how to swim"? Her answer: "But Mr. Bersani, you don't understand, I thought I DID know how to swim. I was so excited about going swimming for my first time that I had been practicing all week - IN MY MOTHER'S BED".

My resonse: "The same mother who would have sued me if you drown, Jacqui!"

The Syracuse Post-Standard reports that a Syracuse University student was driving home to Albany in the dark hours of the morning (about 4:30 a.m.) when her car slid off the Thruway and onto the median. She then apparently got out of her car and tried to cross the westbound Thruway to make her way to the onramp in Herkimera a couple of miles west. Unfortunately, a westbound hit-and-run vehicle struck and killed her as she crossed.

When I read this report, the pressing question I had was, "where was her cell phone?"

The nearly ubiquitous cell phone has caused alarm among many, including myself, because of an epidemic of cell-phone distracted driving wreaking havoc on our roadways. I have personally brought several Central New York car accident lawsuits against drivers too busy yapping on their cell phone to pay attention to traffic signals, stop signs, or cars stopped in front of them.

But this recent Central New York car accident reminds us that cell phones are both a blessing and a curse; if this student had a cell phone, would she have needed to exit her car and cross the Thruway to get help? No! She would have just called for help on her cell phone.

And don't forget that emergency responders arrive faster to accident scenes these days, and save more lives, because cell phone users are able report accidents as they happen. Remember the days when you had to run to the nearest house and ask the residents to call the police when you saw an accident?

Finally, don't forget that cell phones are handy for real-time reporting of erratic or road-rage driving..

Just like most human inventions, cell phones are both a blessing and a curse. If used properly, cell phone save lives and avoid accidents. But if used improperly, they reap misery and destruction. How will you use your cell phone?

I abhor frivolous lawsuits. I try to bring my New York personal injury lawsuits only against companies and people whom I feel are truly liable for my clients' injuries. But once in a while I am forced to sue "iffy" claims against those who probably are not responsible for my clients' injuries. Why? Because of insurance companies and their lawyers, that's why. Let me explain by way of example.

My client is a passenger in her boyfriend's motor vehicle. On a snowy night, they come upon a car stopped in the middle of the road, which apparently stopped because of the snowy conditions. It appears, though, that the driver of that car could have done a better job pulling over onto the shoulder of the road. Nevertheless, my client's boyfriend is able to stop in time. Moments later, a tractor trailer comes from behind and hits the rear of my client's car, propelling it into the car stopped in front. That tractor trailer driver was clearly going too fast for the snowy conditions. My client suffers serious injuries, can never work again, and no-fault insurance is quickly exhausted.

So who do I sue to get her the compensation she needs and deserves? After all, she was an innocent passenger.

I think it was mostly the tractor trailer driver's fault, but perhaps also the driver of the first car, for stopping completely or for not pulling far enough over onto the shoulder. I think my client's boyfriend is without fault. All he did was stop to avoid hitting the car stopped in front of him.

But as the 3-year statute of limitations approaches, I know I have to sue not only the two drivers whom I think may be responsible, but also my client's boyfriend, whom I think is not responsible. Why? Because I know from experience that, if I don't sue him, the insurance company lawyers for the other two drivers will point the finger at "the empty chair" in the courtroom, that is, my client's boyfriend whom I did not sue. They will try to pass all the blame onto the one person I did not sue on any number of theories, for example, for not putting his flashers on, for not pulling over enough, for not passing around the stopped car --- who knows! I will only find out AFTER the statute of limitations expires, and then I will be in a jam. If somehow these insurance company lawyers convince a jury it was entirely my client's boyfriend's fault, then the jury will return a big goose-egg verdict for my client.

My client will not be left without recourse, though --- she can still file a New York legal malpractice lawsuit against me for failing to sue her boyfriend! So there you have it --- sometimes I have to sue people who probably aren't to blame.

Legend has it that, during the crusades, when a Christian army was invading a middle-eastern city whose residents were mostly Muslim, but which contained a significant minority of Christians, a soldier asked his military commander, "sir, how do I know which ones are Muslims, and which Christian", to which the commander replied, "kill them all, and let god sort them out".

So there you have it. Sometimes you have to "sue them all, and let the jury sort them out".

Yesterday New York's Appellate Division, Fourth Department handed one of our clients, a motorcycle accident victim, a great victory. Here's the story: Our client was riding his motorcycle in a rural area of Ontario County when a farmer in a pickup truck failed to see him, failed to yield to him, and caused a car/motorcycle collision that ended up costing our client a leg and a life-time of excruciating pain.

The pickup truck was insured by an auto policy to the tune of $300,000, but that wasn't nearly enough to cover the medical expenses, lost wages and permanent, unremitting pain and suffering. After a little hunting, we discovered that the farmer, in addition to the $300,000 auto insurance policy, had a $ 1 million farm insurance policy. Since the farmer was actually conducting farm business when the accident happened (had been checking on some crops and picking up a part for farm machinery) we figured the farm policy should be on the table.

Of course the insurance company disagreed. After all, insurance companies make their profit by disclaiming coverage whenever they can. Yes, I mean it; hanging their insured clients out to dry is how they grow their bottom line.

In this case, the insurance company's main argument was that the insurance policy they had issued to the farmer covered only accidents caused by vehicles registered as "farm vehicles", but the farmer's pickup truck was not registered as a "farm vehicle" but rather as an "agricultural vehicle". Say what? Don't "farm vehicle" and "agricultural vehicle" mean the same thing? Hell no! Welcome to the hairsplitting world of insurance disclaimers!

So, since the insurance company wouldn't pony up, we took a judgment against the poor farmer for the $1.3 Million, collected on his $300,000 auto policy, and went to Court to collect on the $1 million farm policy. The trial Court handed us a victor, the insurance company appealed (of course), and yesterday the appellate court out of Rochester -- surprise, surprise -- found no significant difference between a "farm vehicle" and an "agricultural vehicle" and thus affirmed our trial court victory.

So now they have to pay up. But there is frosting on this cake: During the years that the insurance company was refusing to pay, making us take a judgment against its insured, making us sue them for failure to pay on that judgment, and making us fight an appeal, 9% annual INTEREST WAS RUNNING on the $1 million judgment pursuant to New York State law. As a result, the insurance company, who could have settled for the $1 million policy limit early on, now owes our client the $1 million plus interest, which amounts to a whopping $1.4 million.

So we at Michaels & Smolak would like to thank the insurance company (which will remain unnamed) for having provided our severely injured client with an extra $400,000.

The Syracuse Post Standard today reported that a sleepy tractor trailer driver on the Thruway, near Bethlehem, was dozing at the wheel when he crashed into the back of a second big rig at 1:20 a.m. Only twenty minutes later, when police and rescue workers were on the scene to respond to the tractor trailer crash, a car, whose driver had also dozed off, slammed into the rear of the line of traffic stopped for the first accident, creating in the most literal sense a "double whammy". Several injuries were reported.

So here's our legal quiz question for the day: If you prove that the driver that struck your car had fallen asleep at the wheel, do you automatically win your case? The answer? . . . .(drum roll --- Jeopardy music -- whatever) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . ..

The answer is "NO", but almost. Here's how the rule works in New York:
While New York courts don't consider falling asleep while driving "negligence as a matter of law" (in other words, the driver is not automatically liable for falling asleep), evidence that the driver fell asleep at the wheel and caused an accident creates what we lawyers call a "rebuttable presumption" of negligence.

What does that mean? It means that once you show in court that the driver fell asleep, you have made out a "prima facie" case, which means you have proved your case subject to the driver getting a chance to explain why it wasn't his fault he fell asleep. (As the old Saturday Night Live skit put it, the driver has "got some splaining to do"). But even though the driver gets a chance to "explain", you will almost always win your case, and the sleepy driver will almost always lose. Why?

Think about it. How does the asleep-at-the-wheel driver show that it was "not his fault" that he fell asleep? People just don't suddenly fall asleep. Before sleep sets in, there is a warning sign --- called "sleepiness" or "drowsiness" --- which almost always comes on before actual sleep. That is when the driver should have pulled over and stopped driving and gotten some rest ---- but no, he decided to risk it, and to keep driving, despite his sleepiness.

I am telling you these cases are just about slam dunks. While they are not "automatic" wins, they are damn close.

So to those injured victims of the double whammy on the New York State Thruway --- get a good car accident lawyer, or even a not-so-good one, and you will almost certainly end up getting compensated for your pain, suffering, and other loses.

New York car accident lawyers like me are taking in more and more car crash cases where our clients were struck by a "texting" driver.

Why is texting while driving so dangerous? Research shows that texters take their eyes off the road for an average of 4.6 seconds out of every 6 seconds. At 55 miles per hour, that means a driver is traveling the length of a football field without looking at the road! Studies show that drivers who text while driving get into 20 times more accidents than non-distracted drivers.

Sure it's dangerous for a car driver to text while driving, but think how much more damage a distracted tractor trailer driver can do while texting from his big rig. And that's precisely why today U.S Transportation Secretary Ray LaHood announced a regulatory guidance that expressly outlaws "texting" by drivers of commercial vehicles such as tractor trailers and buses. The prohibition is effective immediately. Under the new rule, truck and bus drivers who text while driving commercial vehicles can get slammed for up to $2,750 in civil or criminal penalties.

This won't be the last measure the federal government takes to combat distracted driving. During a September 2009 "Distracted Driving Summit", Secretary LaHood announced his goal of reducing the risks posed by distracted driving. President Obama has also recently signed an Executive Order directing federal employees not to text while driving government-owned vehicles. More to come. You can follow the progress of the U.S. Department of Transportation in combating distracted driving www.distraction.gov.

The Syracuse Post Standard reports that eight people were injured in a two-car crash last Friday night in Eaton, Madison County, New York. That's a lot of injured people for one accident! It's unusual, too, because nowadays most vehicles on the road have NO passengers. Look around next time you are driving and you will see what I mean!

One of the two cars was headed northbound on Route 46, failed to stop at a stop sign at Route 20, and was struck by the other car heading east on Route 20. The car that failed to stop at the stop sign was carrying three passengers, all whom were injured, though apparently not seriously. The driver traveling on Route 20, who had the right of way, suffered neck injuries, but one of his three passengers suffered a serious leg injury, so serious that she was taken by helicopter to Upstate University Hospital in Syracuse.

In this blog post I want to discuss how insurance will cover all these injuries, minor and serious alike.

Under New York State car accident law, everyone's medical expenses and lost wages up to $50,000 will be paid out of the "no-fault" insurance for the car they were traveling in. There might be additional insurance in the policy, but $50,000 is the standard, and the minimum. In addition, if any passenger owns his or her own car, or if a family member they live with does, they ought to check those auto insurance policies for additional no-fault insurance, known as "APIP" (additional personal injury protection).

So that's it for the basic medical expenses and lost wages. But what if the passengers and innocent driver have MORE medical expenses and lost wages than no-fault insurance covers? What then? And what about compensation for their pain and suffering?

That's where "liability", also known as "bodily injury", insurance kicks in. The insurance policies for the at-fault vehicle (the one who blew the stop sign) will have to pay for any "excess economic loss", meaning medical expenses and lost wages beyond what no-fault paid. In addition, it will have to pay pain and suffering compensation for any "serious injuries". I discussed what a "serious injury" is in an earlier blog.

But there might not be enough "bodily injury" insurance here to cover all the injuries, so everyone needs to seek out additional, hidden insurance, called "SUM" (supplemental underinsured motorist) coverage, which I wrote about on our website. Such additional insurance might be found in the insurance policy for the vehicle they were traveling in, or in the auto insurance policy for the vehicle each victim owns, or is owned by a family member who resides with them.

I wish luck and a speedy recover to all the victims of this unfortunate auto crash. I also hope they all have lawyers who know how to track down all available insurance to help them cover their costs and compensate them.

When I look back over the past month or so (December and January), I see that I have been blogging quite a bit about car and snowmobile accidents. It is no coincidence. This time of year, these kinds of accidents fill up the newspapers and tie up my phone line.

Car accidents happen with greater frequency in winter for two reasons: (1) the slippery conditions and (2) the shorter days (People are driving in the dark more often, with more limited visibility, both on the way to work and back). And do I need to explain why snowmobile accidents happen with greater frequency in winter? I think not!

A few days ago I blogged that car accidents are sometimes the "road's fault", that is, that a government entity (New York State, or a town, city or county) negligently designed the road or its signage, traffic control devices, drainage ditches, shoulders, etc. I explained that, in such cases, motor vehicle accident victims may have a valid claim against whatever government entity designed and maintained the roadway.

The same can be said for snowmobile accidents. Sometimes the government or a private party owns and maintains snowmobile trails. Sometimes snowmobile accidents are caused by the poor maintenance, planning, or design of those trails.

But hold on! These are not easy cases. Even though the landowner may be at fault, there is a special statute in New York that protects them in many cases. It is called General Obligations Law section 9-103. This law provides that landowners "have no duty to keep the premises safe for entry or use by others for (among other things) snowmobile operation" and that they have no duty to "give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes". In other words, generally you can't sue the landowner for dangerous snowmobiling conditions, or even for failing to warn you about them.

The law's purpose is laudable; it encourages landowners to open up their property for snowmobiling and other recreational use by the public. Many landowners would be reluctant to do so if they thought they could be sued for accidents that happen on their property.

But there are many exceptions to the blanket protection provided by Obligations Law section 9-103. By way of example only, a government entity such as a County, that opens up its land for snowmobile use, and maintains snowmobile trails, may be held liable under a "public parks" exception to the rule. In fact, Michaels & Smolak is currently litigating such a case against Oswego County. There are many other such exceptions, too.

Make no mistake; the number one cause of snowmobile accidents is unsafe driving.But if you or a loved one is injured in a snowmobile accident and you believe it might have been at least partly "the trail's fault", call a New York snowmobile accident lawyer to discuss the case.

The New York State Trooper dutifully pulled his patrol car over for a distressed vehicle on the shoulder of the New York State Thruway in the Town of Brutus, Cayuga County, New York. He then got out, approached the car, and----- was struck be a flying wheel. A flying wheel? Yes, one that had apparently fallen off a passing vehicle.

Rendered unconscious by the giant frisbee, he was airlifted to SUNY (Upstate) hospital in Syracuse. Yesterday the New York State Troopers released a photo of the guilty tire (a kind of tire mug shot - shown here at left) in the hopes that someone will recognize it and blow its owner in. Judging from its size, and its rust, it appears to be the spare for some kind of small truck.

What if they find the tire's owner? Will he be legally liable to the Trooper in a New York personal injury lawsuit for medical expenses, lost income and pain and suffering? Probably. Here's how the law works.

Assume the tire's owner says, "gee, I have no idea how that tire came flying off of my truck. I secured it down real good just last week". Oh yeah? The fact that it flew off the truck shows that he did NOT secure it well enough.

Recently I blogged about the legal doctrine of "res ipsa loquitur." When a tire or other object comes flying off a vehicle for no good reason, that makes for a classic "res ipsa loquitur" case, which means the owner is liable. In fact, there are several New York personal injury cases just about exactly on point: Pollock v. Rapid Indus. Plastics Co., Inc.113 A.D.2d 520, Spica v. Connor, 56 Misc.2d 364, Polk v. Roger Sherman Transfer Co., 3 A.D.2d 882.

But wait a minute. Why should this Trooper be able to bring a New York accident lawsuit for medical expenses and lost wages? Won't his workers' compensation cover that?

Yes, it will (all his meds, and most his lost wages). But if the trooper decides to sue the guy responsible for the loose tire for pain and suffering compensation, he had better also sue for the lost wages and medical expenses. Why? Because workers' comp has a "lien" on any recovery he gets from his lawsuit against that guy. In other words, comp gets to take back from the Trooper's lawsuit award (be it from a settlement or verdict) all of the comp payments it made for the Trooper's medical treatment and lost wages. So if the Trooper doesn't sue for the lost wages and medical expenses, comp will take its comp payments back out of his pain and suffering award. But if he includes in his lawsuit a claim for the lost wages and the medical expenses, then he will be able to pay comp back with the money from those awards, and will be able to keep 100% of his pain and suffering compensation, plus whatever lost wages were not covered by comp.

In the end, the innocent trooper acts as a kind of "pass through" between the guilty tire/truck owner who actually caused the injury, and the innocent workers' compensation insurer. The innocent injured trooper gets to keep his pain and suffering award, but the medical expenses and lost wages "pass through" him from the guilty guy (or his auto insurer) to the innocent workers' compensation insurer. Sound fair? I think so.

The Syracuse Post Standard reports on a Cayuga County car accident last Thursday, in Sennett, New York. On a snow-covered Hidden Valley Road (near Route 5, a/k/a Grant Ave), a motorist drove his SUV into the side of a Finger Lakes Railroad train, which was traveling at only about 9 miles per hour. Fortunately, the motorist sustained only minor injuries.

Someone once said that the difference between a wise man and a fool is that the former learns from others' mistakes and the latter learns only from his own. So be wise, and learn from this accident before it happens to you. Learn what? Two things:

First, wake up! In case you haven't noticed, it's winter (and a very snowy one) in Central New York. The roads are slippery, icy and snow-covered. Drive prudently. For tips on how to minimize your risks of car accidents in winter, read my prior blog on this subject.

Second, railroad crossing are hazardous! This train/auto collision was unusual in that the car hit the train; usually it is the other way around. When a train meets the side of a car, it is almost never a happy encounter. You are 30 times more likely to die in a collision with a train than with another car, and for obvious reasons (well, just in case they are not so obvious, it is because trains weigh a lot more and can't slow down quickly). It happens more often than you think; a train collides with a motor vehicle in America every 90 minutes. According to the Federal Railroad Administration, approximately 2,000 Americans die or are and injured at rail crossings every year.

In appropriate cases, Michaels & Smolak represents motor vehicle drivers and their passengers in their claims against railroad companies for injuries sustained in train/motor vehicle collisions. Sometimes the crossing was not set up right, or the signals failed, or the train conductor did not sound his whistle or bell properly. To be honest, though, these collisions are usually the car driver's fault.

Here are some tips on safety at railroad crossings:
• Be aware that trains usually move faster than they appear to be moving. Don't be fooled!
• Don't pass a vehicle within 100 feet of a railroad crossing.
• Before crossing the tracks, roll down your windows, turn off the radio, air and other noise sources, and listen for whistles, bells or other sounds indicative of a train coming.
• Keep in mind that New York State Law (Vehicle & Traffic Law 1171) requires certain vehicles to stop at railroad crossing (buses, trucks carrying hazardous materials, etc.).
• Always yield to flashing lights, closing gates, whistles, etc.
• When you stop before the tracks, keep a distance of 15 to 50 feet from them. (The tracks are 4-feet, 8 ½ inches wide, and the train's width extends 3 feet past the rails on either side).
• Cross the tracks only at designated railroad crossing.
• Don't get stuck in a railroad crossing. Cross only if you are sure you can clear the tracks. Once you have started to cross the tracks, keep going --- this is no time to change your mind!
• If your vehicle stalls on the tracks and a train is coming, get out, and get your passengers out. Don't waste time trying to restart your car.

Learn from others' tragedies, not your own. Be careful at railroad crossings.

The Buffalo News reports today a fatal Western New York car accident in the Town of Perry, Wyoming County, New York at about 8 a.m on Route 20A, near Smith Road. Driver number 1 was heading west on 20A when she lost control of her pickup, police said. Her vehicle crossed over into the oncoming lane of traffic. While this driver suffered injuries, the passenger of the oncoming car was killed. The driver of the oncoming car was also injured. Both were sent to Erie County Medical Center. A passenger in the back seat of one of cars was taken to Wyoming County Community Hospital.

This is a unusually sad accident. So many lives affected! Everyone involved is injured, and one is dead.

As an upstate New York auto accident lawyer who has represented victims of snow and ice-related car crashes in the Syracuse, Buffalo, Oswego and the entire upstate "snow belt", I have personal involvement with such accidents on a regular basis. While it is easy to blame such accidents on the weather, New York car accident law does not see it that way. Every driver in New York has an obligation to maintain control of his or her vehicle. This means that motorists must adjust their driving to the weather conditions. In icy, slippery conditions, a driver must drive slowly, at a speed prudent for the conditions. Other adjustments must be made as well, for example, braking earlier and following other vehicles at a greater distance. Having good snow tires helps, too. In a previous blog post, I gave some other tips about how to drive in icy conditions.

While insurance company lawyers representing drivers who failed to maintain control of their car in slippery conditions will often argue to the jury that their clients were blameless, and that the accident was "an act of God" (after all, God made it snow), in my experience this defense does not often work. When all the facts are carefully presented, it is hard to completely exonerate a driver who, for example, crosses over into the oncoming lane, even in icy conditions. In almost all such cases, a good New York auto accident attorney can prove that the driver knew, or should have known, that the roads were slippery, and that he was simply driving too fast for the conditions.

The proof is in the pudding. If you lose control of your car, then this proves you were driving too fast for the conditions. So slow down on that snowy, icy road.

A recent motorcycle accident in Farmington, Ontario County, New York provides food for legal thought. The Geneva Finger Lakes Times reports that on Monday a motorcyclist, James W. Evans of Victor, drove his motorcycle into the rear of a van that was attempting to make a left-hand turn into a driveway. The motorcycle driver was charged and arraigned on both DWI charges and for not having a valid license. The Finger Lakes Times reports that a passenger on the motorcycle sustained serious physical injuries from the accident.

Here's our legal query: What are Evans' passenger's legal rights to compensation for her injuries? Since the van driver was not at-fault, and Evans clearly was, she must look to suing Evans for his negligent, and drunk, operation of the motorcycle. Surely he is liable to her and, if he had liability insurance on his bike (not likely since he was driving it without a license), she can look to his insurance for compensation for her pain and suffering, lost wages, medical expenses and other loses.

If she brings such a claim, though, she can expect Evans' motorcycle accident lawyer to argue that she herself was at least somewhat to blame for her own injuries because she assumed the risk of climbing on a motorcycle with an intoxicated driver. Whether this argument prevails (and it usually doesn't) will depend in large part on what the passenger knew about Evans' alcohol consumption that day. Was she drinking with him? Did she see how much he drank? Or did he merely pick her up after he had already been drinking? Did he look or act drunk? In sum, did she or did she not know or suspect that he was intoxicated? If a jury decides to blame her somewhat, her case will not get "nixed". Instead, the judge will instruct the jury to "apportion" the blame between her and Evans. For example, if the jury determines that her injuries should be compensated to the tune of $1 Million, but the jury says she was 30% responsible and Evans 70% responsible, then she will get a verdict of 70% of $1 Million, that is, $700,000.

In any event, I think we can all agree it is not a good idea to get into a car whose driver has been drinking. This is even more true for motorcycles, since even minor collisions easily produce major injuries where the passenger is on a motorcycle..