Central New York Injury Lawyer Blog

Wednesday, on Route 5 in Elbridge, a tractor trailer rear-ended a stopped car so hard that the car, a Kia, burst into flames, killing its driver and passenger. The Onondaga County deputy sheriff's office says the tractor trailer left no skid marks at all, which means its driver did not apply the brakes. And what does that mean? That the driver did not even see the stopped car. And what does that mean? One of two things: Either he was sleeping, or he was distracted.

Most likely distracted. I have blogged about this before: distracted driving is become a HUGE problem on our roadways. More and more Central New York car accident lawsuits against distracted drivers are being filed. As a Syracuse car accident lawyer, the volume of car accidents cases I handle where the at-fault driver was distracted because he was using a cell phone, texting, and using some other electronic device has increased dramatically over the years.

Typically, distracted driving causes crossover accidents (the texting or dialing driver slowly drifts across the centerline without noticing) and rear-end collisions (the distracted driver does not notice that the vehicle in front of him has stopped). But distracted drivers also tend to run red lights, blow past stop signs, and run into utility poles or other roadside structures.

Combine distracted driving with tractor trailer driving and what do you get? A bad situation made worse. Tractor trailers are so heavy compared to cars that a collision between the two is no contest; the car's driver and passengers are more often than not killed (as they were in this accident) or seriously injured. That's why commercial trucks and drivers are subject to so many State and Federal safety regulations. By the way, these regulations come in handy in preparing a New York commercial truck accident lawsuit.

Don't get distracted while you drive. If you are the victim of New York disctracted driving accident, call or email me for free information on what to do about it.

I have blogged about New York texting while driving car crash cases more than once. You can read my prior posts here and here. But this video --- oh my god --- if you can watch it more than once, you did better than I did. As painful as it is to watch, we should REQUIRE all drivers - especially inexperienced ones -- to watch it repeatedly! I have saved the video so I can show it to my oldest son -- Sebastian -- when he starts driving (only three years from now!).

The Syracuse Post Standard reported the other day that an SUV struck a Syracuse man "on purpose" after an argument on Westcott Street Tuesday morning. Fortunately, the injuries do not appear serious; the victim suffered only cuts to his arm and leg and was taken to Upstate University Hospital.

Here's my blog topic for today: Will a New York State car accident insurance policy cover the man's medical expenses or anything else for that matter? Answer: No! Why not? Because this is not a New York motor vehicle "accident" case. It is a New York motor vehicle ASSAULT case. An accident is a mistake. This was no mistake. It was deliberate. No liability or car insurance on God's earth covers for motor vehicle assaults. The reason is simple: Insurance companies don't want people buying insurance policies so they can go out and deliberately bowl people over, and force the insurance company to pay!

Even if the victim owns his own car, his own SUM (supplemental uninsured motorist) coverage won't cover his injuries here, again because it was an "assault", not an "accident". To summarize: He can forget about auto insurance coverage of any kind!

So how will this poor guy get his medical bills paid? Hopefully, he has private health insurance, but if not, he will have to pay himself, or if he can't, he will have to apply for Medicaid. If he is of a certain age, or if he is already disabled, perhaps Medicare will pick up the tab.

This reminds me of a New York car-strikes-pedestrian case I tried in front of a Cayuga County jury several years ago. My client was a "meter man" in Auburn, New York As he was writing a car up for an expired parking meter, the car's owner showed up, got angry about it, and deliberately backed up into my client while he was copying down the license plate number. My client ended up with a knee injury. I was afraid the guy's auto insurer would disclaim coverage based on "assault" or "intentional act", but fortunately, the angry man claimed it was an accident (yeah, right . . . ), and told his insurance carrier so (because he wanted insurance coverage). My client lucked out on that one, because if the driver had admitted he had backed up to "get even" with my client, insurance coverage would have been denied.

Doesn't look like this car assault victim in Syracuse will be so lucky.

Yesterday the New York Times reported that, while drunken-driving deaths are dropping, car-accident deaths caused by drivers who have taken legally prescribed narcotics, such as painkillers, sleeping pills, anti-anxiety medications, and other potent drugs, are increasing. Unlike with alcohol, no firm studies or guidelines exist determining what blood level of these drugs impairs driving. Yet the drugs, in many cases, clearly cause driving to deteriorate. They can impair motor skills, slow reaction time, and undermine judgment. For example, anti-anxiety drugs can make a driver less alert, and slower to react. Stimulants, on the other hand, can lead to risk-taking and diminished judgment. Drivers "on drugs" (albeit legal ones) often have many of the symptoms of drunk drivers --- bloodshot eyes, slurred speech, or erratic driving.

So here's my blog topic of the day: What happens, in a New York car accident lawsuit, if the defendant driver who you claim is at fault for the car accident, was "on drugs" (albeit legally prescribed ones) at the time of the collision? Can the fact that he or she took prescription drugs before the crash be used in Court to make out your case?

Answer: Yes, of course! Most prescription drugs that can affect driving have clear indications on them that they should not be ingested before driving or using machinery. And besides, common sense dictates the same. The motorist who struck your car should have known better, and had a duty to either refrain from using the drugs or refrain from driving. So it is no excuse that the drugs taken by the driver, who, say, swerved into your lane, were "legal".

In Court, your New York auto accident lawyer may need to hire an expert pharmacologist to explain to the jury the affect the drugs likely had on the driver. But probably not --- in most cases it will be clear that the drugged motorist is responsible for the collision because he or she crossed into your lane, blew the stop sign, failed to yield --- or whatever. Only in cases where the driver's fault is more subtle --- for example, delayed reaction time --- will such expert testimony be needed.

One more thing --- read your prescriptions before driving! If they are likely to affect your driving, they should tell you how long to wait after ingesting the drug before driving. Thanks for being safe!

The Cayuga County Sheriff reports that yesterday afternoon a car crossed over into the oncoming lane of traffic and collided into a bus carrying disabled people on Route 34 in Fleming, New York (just a few miles south of the Central New York personal injury llaw office of Michaels & Smolak, P.C., on Route 34 in Auburn, New York). A 73-year-old female passenger was killed, and 15 others were taken to hospitals. The collision flipped the bus over onto its side, causing lots of injury to the passengers.

From my years of experience as a Central New York car accident lawyer handling head-on collision cases, I know that this type of car accident, more than t-bones, or rear-end collisions, is especially terrifying. The seconds before the collision seem like an eternity because you can SO see it coming! Perhaps the bus passengers here were lucky enough to have avoided this terrifying scene. But the impact also is usually horrific; twice as bad as with any other kind of automobile collision. That's because the combined speed of the two vehicles hurling against each other doubles the force exerted against the vehicles, and the people inside them..

Another anomoly of cross-over collisions is that the vehicles don't usually meet exactly at center point, but rather the left sides of the front of each vehicle tend to meet. And since the left side is where the drivers are located, this makes impact even worse for the drivers. Also, the off-center impact can cause a vehicle to spin or flip, which might explain why the bus flipped in this Flemming, New York accident.

I guess I should finally state the obvious: The driver who crosses over is at fault. Duh! The other driver has no fault, unless he had lots of time to react and avoid the collision and just did not (a very rare occurrence). Excuses that work for the cross-over driver in court are rare. For example, the driver that crossed over may claim he experienced unexpected icy conditions, or was forced to cross-over to avoid striking a pedestrian or to avoid some other danger, or that he was the victim of a sudden and unexpected failure in the steering of the car, or of a sudden seizure, stroke or other medical condition. But these defenses almost always fail.

Proving that the car driver was liable here won't be tough. The tough issue will be insurance coverage. I can almost guaranty you there won't be enough insurance money to go around! And the victim with the best, most aggressive, New York motor vehicle accident attorney has a better shot and taking what little insurance money there is!

The Syracuse Post Standard reports that a Baldwinsville man got a one-to-three year jail sentence for seriously injuring two motorcyclists last fall in a Syracuse, New York car-on-motorcycle collision. He was driving through the intersection of Hiawatha Boulevard and State Fair Boulevard in Syracuse with a .08 blood-alcohol count when he turned left into an oncoming motorcycle. The driver of the motorcycle ended up having the lower part a leg amputated. The motorcyclist's passenger also suffered leg and back injuries in the crash, and still walks with a cane.

From my experience as a Syracuse New York motorcycle accident lawyer, I can tell you this is an all too common car-on-motorcycle crash in three ways: (1) the car turned left in front of the bike, violating his right-of-way (a very common cause of car-on-bike crashes); (2) the motorist clearly failed to see the motorcycle (also very common); (3) the motorcyclist lost a leg (a common injury in motorcycle accident cases - we represented a cyclist last year who had to have a leg amputated as well); and (4) alcohol was involved (again, far too common).

What are these New York motorcycle accident victims' rights (besides seeing this guy go to jail)? They both have a strong claim under New York motor vehicle accident law for compensation from the driver, and from his insurer. The problem is this: I can almost guaranty you that his insurance policy won't have a high enough limit to fully compensate these horrific injuries. And the motorist himself, now in jail and with no income, won't be able to contribute a dime. So these Syracuse motorcycle accident victims will probably just remain under-compensated (unless they have something known as "SUM" coverage in their own motorcycle insurance policy, which I will discuss in a later blog). Unfortunately, this too is all too common.

True heroism is rare. Strictly speaking, sports figures are not "heroes". In order to be a true "heroe", you must risk your own life to save someone else's.

This past June 10th, two true local heroes saved a life, all while risking their own. Joseph and Anna Buttaccio of Newark were just passing by on Route 31 in the Town of Palmyra when they saw a head-on collision between two cars. One of the cars then left the roadway and burst into flames. Disregarding risk to their own lives, the two heroes reached into the burning wreck and dragged the driver to safety. They suffered burn injuries themselves, but, fortunately, they don't appear to be serious.

The driver whose life they saved was air-lifted to Strong Hospital, where he remains in guarded condition. He suffered not only severe burn injuries, but also a traumatic head injury, including a fractured skull. Although this driver appears to have been at fault for the collision (he had crossed over into the oncoming car's lane of travel), and may have to answer to criminal charges (the driver of the other car is very seriously injured, too), and will almost certainly be a defendant in a New York motor vehicle accident lawsuit, for now he should simply be grateful to be alive. And that he owes to the Buttaccios of Newark.

That's why the Central New York personal injury and car accident lawyers of Michaels & Smolak salute the Buttaccios of Newark for their true heroism..

O.K., the headline is funny, but the story is very sad. How sad? How about a one- and two- year old who are now motherless.

Today news sources report that the driver of a tractor trailer, who was streaming porn on his laptop while he drove his rig into the back of a disabled car on the New York State Thruway (near Pembroke, about 20 miles east of Buffalo), pleaded guilty to second-degree manslaughter. The disabled vehicle had run into a deer, and was waiting for a tow truck. Its driver, a mother of the one- and three- year olds, was killed by the impact from the tractor trailer.

Sure, watching porn while driving is what made the headlines. (Sex sells, even when it kills!). But this driver was guilty of other important violations as well. 395.3 of the Federal Motor Carrier Safety Administration regulations mandates a driving/rest ratio for "commercial carriers" (essentially, tractor trailer drivers). The hours a commercial driver can drive within periods of time are strictly limited. Here, the driver didn't get the required rest. He had only 4 hours of sleep in a 27-hour period. Worse still, the driver had "cooked the books" (actually, his driver's "log") in an attempt to dupe the authorities into believing he had followed the required rest/drive ratios. The authorities unearthed his lies by looking beyond his self-recorded "log", and into his E-ZPass records and the GPS tracking for his 18-wheeler.

The commercial carrier driver's log I mentioned above is mandated by §395.8 of the Federal Motor Carrier Safety Administration regulations. And it is often a treasure-trove of important information for people like me who sue commercial truck drivers and their commercial carrier employers for truck accidents causing personal injuries in New York State. In the log, the driver has to state whether he was "on" or "off" duty, whether he was driving, whether he was in the "sleeper booth", etc., as well as the name of the city, town or village, etc. where he started, stopped or rested. The total miles during each leg of the trip are also recorded. I personally have spent hours scouring these log entries - not exciting work, but very revealing --- in my New York tractor-trailer accident cases.

So far I have never found an entry that says, "driving while watching porn". No one's that honest, and let's hope none (except this one) is stupid enough to try that.

I have written several blog posts about "distracted driving" - motorists driving while texting and driving while talking on their cell phones. (See those posts by clicking here, here, here and here). As I said in those blog posts, distracted driving is quickly becoming a leading cause of motor vehicle accidents, and of auto injury lawsuits, not only in Central New York and Syracuse, but all over the U.S. But this latest story brings "distracted driving" to a new level:

Last Wednesday, an expecting Minnesota mother felt labor pains, jumped in her car, picked up the father (who does not drive because he is prone to seizures) at work, and was heading straight to the hospital when the baby --- well ---- just "slipped out". She GAVE BIRTH while driving herself to the hospital! The baby's father helped by steering the car from the passenger's seat. After birth, the mother had the father steer the car, again from the passenger seat, to the hospital. It appears that mom and newborn both checked out fine.

Now that's what I call distracted driving -- both by mom and dad!

When I read the Syracuse Post Standard's report of this recent Central New York motorcycle accident, I thought perhaps I had accidentally jumped to the movie review section of the paper and was reading about a slapstick comedy. The accident happened on Route 31 in Lakeport, New York. The motorcyclist collided into the back of a Chevrolet Cavalier convertible stopped and waiting to turn left at the intersection with Coulter Cove Road. Upon impact, the motorcyclist flew off his bike and landed in the backseat of the convertible. The driver of the convertible was quoted as saying, "the next thing you know there was this big crash, and I felt something on the back of my head". Her daughter, the passenger, then said, "mom, there's something in the backseat". When the driver turned around, she saw the motorcyclist lying in the back seat with his feet on her head.

I have handled a lot of Central New York motorcycle accident cases, but never one like that! Sounds more like a cartoon than an actual accident. I guess you can find humor in anything, even in motorcycle accidents, as long as no one is seriously injured.

What caused the motorcycle to rear-end the car? The biker was adjusting his bike's mirror and didn't notice the stopped vehicle. Lesson to be learned: Adjust your mirror BEFORE you start driving your motorcycle. Never be distracted behind the wheel of a car, or the handlebars of your bike.

Being hurt in a New York car accident when it's not your fault doesn't necessarily mean you have a good case. You have to be "seriously injured" to get compensation from the at-fault driver's insurance. Otherwise, all you get is your no-fault benefits (up to a maximum of $50,000 in medical bills and lost wages combined), which comes from your own insurance, even if you were not at fault. (That's why it's called "no-fault"!)

My many years of representing Central New York car accident victims have taught me one simple lesson: New York No-Fault Law sucks! It's unfair and outdated and ends up screwing way too many Syracuse and Central New York auto accident victims. My partners and I can get around the limitations of the No-Fault Law as well as any New York auto injury attorneys, but sometimes even the best lawyers can't lawyer-their-way-past the worst laws. Read what blogger Eric Turkewitz has to say about New York's unfair No-Fault Law.

Bad, yes, but it's the law (hopefully not for too much longer - there is a bill in the works to change it). Although you might think you are very hurt, and I might think you are very hurt, and you ARE by almost anyone's definition very hurt, you still might not qualify as "seriously injured" under New York's strict No-Fault Law. This is especially true for "soft tissue" and "whiplash" type injuries. Unless you are out of work for more than 90 days, these kinds of injuries usually have to be permanent to qualify as "serious", and you still might lose your case if your doctor can't point to any "objective medical findings" proving that the car accident caused the serious injury, and that it causes a significant limitation in the use of your neck, back, etc. (Even though the No-Fault Statute itself says nothing about "objective findings", New York's courts have added that requirement.)

This "objective finding" requirement is problematic. Often car collisions cause pre-existing "degenerative" (caused by the aging process) spine conditions, that were totally pain free, to become painful. In other words the "injury" was, in a sense, already there, in your spine, due to the natural aging process, but was causing no pain. The car crash "activates" the disc condition, causing pain, sometimes permanent pain. But how do you prove the car crash, rather than the pre-existing condition, caused your pain syndrome with "objective medical findings"? Sometimes there is no visible or other objective thing a doctor can point to. The only difference between your pre-accident spine and your post-accident spine is PAIN, and pain is SUBJECTIVE, not OBJECTIVE.

A good motor vehicle accident lawyer will try like hell to get the doctor to show him some "objective finding" that the collision caused the injury, but it can't always be done.

Long story short: If you are only a little hurt, you probably have no car accident case against the at-fault driver, but even if you are very hurt, you may have no case under New York's car accident laws. See a New York car accident lawyer to find out whether you may qualify.

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.

As a Syracuse and Central New York accident lawyer, I have had loads of experience dealing with car insurance companies and their lawyers. Here's another example of how insurance companies and their lawyers take frivolous positions in Court that cost you, the taxpayer, money.

My client hired me to bring a Central New York car accident claim on his behalf. Here's how his Cayuga County car accident happened: He was a passenger in his friend's car. The friend had stopped at an intersection and was waiting for on-coming traffic to clear so he could turn left. His left blinker was on. Then, -- BAM - the car was struck from behind. The driver who rear-ended them admitted to the police right on the scene that he was reading a map while driving so he did not see the stopped car.

After the insurance company refused to settle for a fair amount, I sued the rear-ending driver and his employer (he was on the job when this happened, so the employer is vicariously liable for his negligence). Since the only real disputed issue was what my clients' extensive injuries were worth (no question about whose fault it was, right?), I made a "summary judgment motion", that is, I asked the judge to decide, without the need for a jury trial, that the rear-ending driver was solely responsible for the collision. I made this request to the judge right after I sued the case out, and before any "depositions". Depositions are where the lawyers get to ask the parties questions under oath about how the accident happened so they can try to prove their case, or their defense to the case. But I figured, why should we bother with all that when there was so clearly no issue of whose fault it was?

But the insurance company lawyers did what they do far too often. They responded to my motion by taking a frivolous position. They argued that my request should be denied because they needed "discovery" first. Specifically, they claimed they needed to depose my client (ask him questions under oath) to see if he might have done something to cause the rear-end collision.

Now let's get this straight: My client, a passenger in a stopped car waiting to turn left, might have done something to cause the map-reading driver to ram his car into the car my client was seated in? Yup, that was their position, I kid you not!

Fortunately, I found several cases to support my request for the judge to rule in my client's favor, even at such an early stage of the case. The judges in those other cases realized that conducting depositions was a waste of time when the defendant was so clearly at fault. The judge in my case followed those other cases, and ruled in my client's favor. But I could not help but think of the waste of the judge's time, his clerk's time, his secretary's time, in considering and deciding an issue that the insurance company and its lawyers should have just stipulated to.

So when people talk about "frivolous lawsuits" clogging our courts and costing taxpayers money, yes, it makes me mad, because I know from my years of experience as a Central New York personal injury lawyer that it is more often the insurance companies and their lawyers that clog our court system with frivolous defenses.

It's to be expected. With the good weather comes bicycling, and with bicycling comes bike accidents. Today Syracuse police are investigating an accident at the intersection of Sumner and Euclid avenues (not far from where I grew up!) between a bicyclist and, of all people, a Syracuse City cop driving a police car. Thankfully, the bicyclist, a Syracuse University student, suffered only minor injuries. She was treated and promptly released from Upstate University Hospital.

This accident demonstrates some interesting principles. Statistically, most bike-on-car collisions are the motorist's fault. Do you think this accident might have been the police officer's fault? Let's see what happened here, and then you decide.

The police officer was heading west on Euclid Ave, and was waiting to turn left on Sumner, when a Centro bus heading in the opposite direction stopped and waved the officer through the intersection. The officer started his turn, but neither he, nor the bus driver, had observed the bicyclist traveling alongside the bus just to its right in a bike path. As the bike entered the intersection, the bike hit the police car's passenger side as the car made its left turn in front of the bike.

So who's at fault? I believe it was the cop's. He violated the bicycle rider's right-of-way. She was going straight through the intersection, as she had every right to do, and the cop was turing left, and thus was obliged to wait for her to pass.

This case demonstrates the most common cause of bike-on-car accidents; motorists failing to observe bicyclists. As a Syracuse New York bicycle accident attorney, I handle a lot of these kinds of bike-on-car collisions, and from my experience I can tell you this: There is usually no good excuse for a driver of a car failing to observe a bicyclist. A motorist is duty-bound to observe other vehicles, including bicycles, and to avoid crashing into them. Here, the cop had a duty to yield to the bike, and it is generally no excuse that he failed to she her.

He might argue, though, that the bus blocked his view of the bike until it was too late. Maybe a jury would buy that, depending on the evidence. But I doubt it.

Now here's the $10,000 question: Think that cop will issue himself a ticket?

I recently blogged about an upcoming federally funded crackdown on cell-phoning and texting while driving that was to take place in Syracuse. Well, the first stage of the crackdown happened, and many motorists were caught in the police net.

The Syracuse Post Standard reports that local law enforcement agents issued a total of more than 2,000 tickets during the 10-day (April 8 through 18) texting-and-phoning-while-driving ticket-issuing spree. The penalty if you plead guilty? Up to a $150 fine plus an $80 surcharge, for a grand total of $230.

Watch out! There are two more texting and phoning-while driving crackdowns scheduled for the last week of July and starting October 7.

And by the way, if you are driving while texting or using your cell phone, and the worst thing that happens to you is a ticket with a fine, you are pretty lucky. Imagine the guilt, shame, and possible financial peril you will suffer if you end up striking a pedestrian or crashing into another vehicle and causing serious injury or death while using your phone or while texting? I can almost guaranty you this: You will be sued by a Syracuse New York car accident lawyer. And guess what? That lawyer will likely have a slam dunk case against you! You'd better check your insurance coverage and make sure there is plenty of it if you plan to continue using your phone or texting while driving.