Central New York Injury Lawyer Blog

Like everyone else, I have been following the "Happy Valley" Penn State child sexual assault scandal with disgust, awe, shock and dismay. But unlike everyone else, I am also thinking, as I read, who I would sue, for how much, and under what legal theories.

Although I am admitted to practice law in Pennsylvania, I have never handled a case there. My practice is limited to New York personal injury cases, and particularly to cases in Central and Western New York State. So I was surprised to read that some PA lawyers saw obstacles under Pennsylvania law to a lawsuit against Penn State because of the doctrine of "sovereign immunity". Penn State would, of course, be the principle target of my lawsuit because of its deep pockets. The lawsuits brought against the rapist/sexual predator, Sandusky, or any of the individual coaches, such as Joe Paterno, would quickly deplete all their assets, leaving the plaintiffs under-compensated. There are at least eight victims, and probably a lot more will be stepping forward, which in my mind equates to many, many millions of dollars in lawsuit recovery.

In New York, a suit against a State University for something like this would not trigger a viable sovereign or governmental immunity defense. That's because New York law distinguishes between the State's traditional governmental role (such as providing police protection) and non-traditional roles the State has assumed over time, such as owning and running a university. Generally, the State can raise the governmental immunity defense only against tort lawsuits for the former, not the latter.

If what happened at Penn State happened at one of New York's SUNY colleges, the only possible governmental immunity defense in New York would, in my opinion, be against allegations the campus police should have intervened. Since police protection is a traditional governmental function, a governmental immunity defense against that cause of action might prevail. But so many other causes of action abound for holding the State college or university liable here: Negligent hiring, supervision and retention of the football coaches; civil conspiracy; premises liability (knowingly allowing a dangerous condition to exist on their premises). And the government immunity defense would not bar these causes of action at all.

The problem in New York would not be governmental or sovereign immunity. Unlike in Pennsylvania, the problem would be the statute of limitations. I'll be discussing that tomorrow, so stay tuned . . .!

Keep safe!

Mike Bersani

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

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

1-315-253-3293 Toll Free 1-866-698-8169

I haven't had much time for blogging and I am sure that my many thousands (yea right!) of dedicated readers are wondering why.

Wonder no longer. Instead of blogging, I have been working on my review of this year's New York case law regarding New York municipal and governmental liability. Every year I review and summarize new cases in this area of law for my fellow New York personal injury lawyers. Then, in the fall, I travel around the State (to Manhattan, Queens, Albany, Syracuse, Rochester and Buffalo) lecturing my fellow New York personal injury lawyers on the new developments in this area.

Some of you might be asking, "what is municipal and governmental liability"? Glad you asked.

When you sue for personal injury against the State, or its political subdivisions, or other governmental entities, such as a town, village, city, county, school district, public authority, special rules apply. In fact, the "rules" are more like landmines waiting to explode under the foot of inexperienced New York accident lawyers. For example, statutes of limitations are shorter, and you often have to follow certain procedures, such as serving a "notice of claim", before you can even sue. The governmental entity or municipality is able to get your case dismissed if you don't cross your T's and dot your I's in following these procedures.

The State, governmental entity or political subdivision, can also raise "governmental immunity" as a defense in some cases. That sometimes means you can't sue them at all, no matter how careless or negligent they were in causing an injury. But a shrewd, and well informed, New York personal injury lawyer can sometimes weave his or her way around governmental immunity defenses. I try to teach other New York accident lawyers how to do this by showing them how it was done in other New York injury cases against the State or other governmental entities. Judging from the emails I receive from other lawyers all over New York State thanking me for my lectures, I think I have succeeded somewhat!

Keep safe!

Mike Bersani

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

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

1-315-253-3293 Toll Free 1-866-698-8169

I love the New York Times. Read it every day. That doesn't mean I always agree with it. And here's a great example.

A recent article by John Tierny explains that some playground "researchers" question the value of safety-first playgrounds. The researchers claim that, while it is "debatable" whether modern safety-minded playgrounds protect children from injuries, they hurt children by "stunting emotional development." These academics believe that taking "risks", such as the risk of falling from heights, is an important part of developing a healthy psyche. According to one of these head-in-the-clouds academics- a professor of Psychology - we should bring back the days of sky-high slides and jungle gyms, and see-saws too, because, while falls are common, "these rarely cause permanent damage", and getting rid of those risks makes playgrounds boring and deprives kids of the opportunity to grow emotionally.

No offense Professor, but this sounds like bull_ _ _ _. And I have to wonder whether your research was funded by municipal insurers. Where's your proof? The article doesn't say.

Here's the truth about modern playgrounds: Modern, shorter equipment and enclosed climbing zones have prevented countless falls. Soft rubber or woodchip landing zones, which have replaced skull-fracturing pavement, have made the fewer injuries there are much less severe. Scrapping traditional seesaws, spinning devices, and too-tall slides and jungle gyms have saved young lives. Well-reasoned federal guidelines and modern playground safety standards set by manufacturers have kept the fun in playgrounds while reducing the tragedies, heartaches and loss.

And yes, you can thank us New York personal injury playground lawyers for that. We forced these changes by making playground owners --- mostly schools and municipal governments - compensate our clients for their dangerously designed equipment. Personal injury playground lawyers all over the U.S. have raised the bar for safety, but New York personal injury lawyers have led the charge.

Personal injury lawyers save lives. Next time you are at a playground with your kids, admire the safe design, the soft surface, the enclosed climbing area and the shorter climbs. Then raise your arms to the sky and say, "thank you New York personal injury lawyers!". And, god forbid, if your child is injured, call me and we will look into whether an unsafe design feature was a factor in causing it.

Keep safe!

Mike Bersani

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

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

1-315-253-3293 Toll Free 1-866-698-8169

This Central New York accident lawyer is "on tour" again, traveling across New York State teaching other New York personal injury lawyers about New York "municipal liability law". I addressed a very welcoming and attentive room of New York personal injury and medical malpractice lawyers in Manhattan this Friday, and will be hitting Albany, Syracuse, Rochester and Buffalo over the next 6 weeks.

What's "municipal liability law"? It's a maze of byzantine rules New York injury lawyers have to follow for suing New York State and its counties, cities, towns, villages, school districts and other governmental entities. The State and all these "subdivisions" of the State have special defenses they can raise to beat back accident and injury claims against them. I try to steer other lawyers around these blockades, and away from mistakes that might harm their injured clients' cases

The rules are really quite complicated, and most years the courts "tweak" the rules at least a little bit in some of the cases they publish. And I read all the cases, hundreds of them, each year. I then try to distill from all this the most important changes in law, and convey that to my fellow personal injury lawyers.

Example? There is a rule that generally you can't sue a City (or State, County, etc.) for its police officers' failing to provide you with police protection. The City has "governmental immunity" from such a suit. But there used to be an exception by which you could sue them if a police officer had promised you some police protection, then failed provide it, you relied on that promise to your detriment, and were injured as a result.

For example, there were lots of cases with this fact scenario: Ex-boyfriend threatens to kill ex-girlfriend, girlfriend calls police for protection, police promise they will arrest him, she believes them and goes home without a worry in the world, and ex-boy friend, who was NOT arrested, is waiting at her doorstep and kills or injures her. Under the old rule, she could sue the City for negligence in withholding police protection. Now it seems the State's highest court has changed that rule so that is impossible, or nearly impossible, for you to sue even when the police officer promises you protection and then fails to deliver it. This is because the decision of whether to provide police protection is deemed "discretionary", and the Court is now saying, for the first time, that you can NEVER sue the government for its "discretionary" decisions.

If you are really interested in this (and unless you are a New York personal injury lawyer, you probably are not!) you can take a look at this recent Court of Appeals case.

Anyway, I am proud to be selected year after year by the New York State Academy of Trial Lawyers to deliver the New York "municipal liability update". If they choose me to teach other lawyers, they must think I am pretty good!

Keep safe!

Mike Bersani

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

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

1-315-253-3293 Toll Free 1-866-698-8169

The Syracuse Post-Standard reports that "Complete Streets Week: Making New York Walkable for All Generations", begins today. What is it? It is a volunteer-led survey of pedestrian safety throughout Central New York, focusing on walking conditions in downtown Syracuse. Volunteers will look at the adequacy of traffic signals in allowing people with disabilities to cross, whether crosswalks are properly marked, the condition of sidewalks and the legibility of signs. The survey will serve as raw material for a "walkability" report to be published this fall on walking conditions all over Central New York, and in other areas of New York State. The report will bolster legislation pending in Albany called the "Complete Streets" law, which would direct transportation planners to design roads, sidewalks and streets with pedestrians in mind. Sponsors of the project include city and county governments as well as AARP, with volunteers doing most of the leg-work.

This study will, we hope, get our State and local governments to focus on preventing pedestrian accidents, injuries and lawsuits by fixing and preventing sidewalk and crossing defects and dangers. With an aging population, and with more of us disabled, "walkable" cities are crucial for the future of Central New York. Shamefully, New York State ranked third nationwide for elderly pedestrian deaths last year. But walkable cities are equally important for parents with small children, with strollers, and for everyone.

The lawyers at Michaels & Smolak, as Central New York pedestrian injury lawyers, know first-hand how dangerous the sidewalks, crosswalks and intersections can be in Central New York, including in Syracuse, Auburn, Skaneateles and Geneva where we live and work. Every year we file Central New York pedestrian injury lawsuits on behalf of those who trip and fall on cracked or broken sidewalks, or are hit by cars in poorly controlled intersections and dangerous cross walks. Sometimes they trip and fall on a broken, cracked, or heaved up sidewalk slabs. Sometimes they get hit by cars as they attempt to cross at dangerous crosswalks or traffic intersections. Very often they are old, or disabled, or are children. Therefore, we applaud "Complete Streets Week: Making New York Walkable for All Generations", and all the volunteers who are making it a success!

The Geneva Finger Lakes Times ran a story yesterday about a car-on-pedestrian accident in Waterloo (Seneca County). The story was of interest to me because I pass through Waterloo twice a day on my way from my home in Geneva to my office in Auburn. Here's what happened:

On January 11, a vehicle struck a 14-year-old student on Stark Street. For at least two years, the child's mother had been one of several parents voicing (to put it mildly) concerns to local officials about the lack of sidewalks for school children who walk to and from school in that area. The parents say the Village of Waterloo and School officials merely shrugged their shoulders and pointed their finger at each other or at other entities. The Village of Waterloo owns the roadway in the area in question. Everyone, including the Village, appears to agree there is a safety concern with children walking to and from school in that area.

As I read the article, I asked myself, "who can be held accountable for this injury in court"? And "who can be held liable for future accidents if nothing is done"? I answered my own questions, and now it's your turn. Readers, I give you two choices: Who can be held liable? (1) the Waterloo School Disctrict or (2) The Village of Waterloo?

Answer: (drum roll please . . . ): It's number 2, the Village.

Why not number 1? Well, a school district, including the Waterloo School District, cannot generally be held responsible for the safety of its students once they are released from school and leave school premises. The exception is if the school district somehow created the off-premises danger that caused the injury, which does not appear to be the case here.

Instead, here the Village owns and controls the road in the problem area. Therefore, providing sidewalks for pedestrian safety in that area is the Village's responsibility.

The Village and its lawyers would be well advised to read the New York Court of Appeals (highest court in New York State) case of Ernest v. Red Creek Cent. School Dist., 93 N.Y.2d 664 (1999), where it was held that Wayne County, who owned and controlled the road just outside the village of Wolcott, near a school, could be held liable for failing to install sidewalks for school children's use if there was no "reasonable basis for the failure to act and the failure to do so was a contributing cause of an accident". In that case, as in this case, the entity who owned the roadway (there, Wayne County, here, the Village of Waterloo) had been warned for years that sidewalks were needed for the safe passage of school children. There, as here, parents and others had pleaded with the authorities to build sidewalks, but those pleas were ignored. In the Wayne County case, a seriously injured student, hit by a car, sued the County for its failure to install sidewalks, and the Court gave the injured student a green light to go to trial. Fortunately, in Waterloo, the lack of sidewalks has caused only one minor injury so far.

Will the Village of Waterloo wait for a SERIOUS injury before it does the right thing? Let's hope not.

This past fall this central New York accident lawyer toured upstate New York State, stopping in Albany, Syracuse, Rochester and Buffalo, to lecture other personal injury lawyers about Municipal Law Liability developments (see my prior blog about it) in New York State. One thing I told other personal injury lawyers about was a split in the appellate courts in New York on a municipal law legal issue. To understand the issue, you first have to understand the law in New York regarding emergency vehicle drivers, which include police officers, deputy sheriffs, State troopers, ambulance drivers and others. The law in New York is very protective of such emergency vehicle drivers. New York law wants such drivers to feel that they can perform their emergency driving without worrying too much about getting sued if they cause an auto accident. The relevant statute is New York Vehicle & Traffic Law 1104, which says you can't sue such drivers if they cause an accident due to mere carelessness or negligence. Their driving has to be a lot worse than that. It says that you can only sue emergency responders for auto collisions when their driving demonstrates a "reckless disregard" for the safety of others.

Now let's get into the issue that divided New York's appellate courts. Assume that an emergency responder such as a police officer or ambulance driver collides with another automobile and the emergency driver is injured. Assume the emergency driver believes the accident was the other driver's fault and sues him for pain and suffering compensation and other losses. Assume further that the other driver, in his defense, says, "hey, the accident was partly your fault too, and so you should only get partial recovery your loses". That defense is known in the legal world as the "comparative negligence" defense.

The issue that divided the courts in New York was whether, when such a defense is raised, the sued driver has to prove that the emergency responder was merely "negligent" or whether he has to prove that the emergency operator acted with "reckless disregard" for the safety of others. New York's Third Judicial Department in Ayers v. O'Brien had held that such a driver had to show only "negligence" while the Second and Fourth Judicial Departments had ruled that he had to show that the emergency vehicle operator was "reckless". This week New York's highest Court, the Court of Appeals, agreed with the Third Department that only negligence must be shown.

What does this mean for New York's emergency vehicle operators such as police officers, deputy sheriffs, State troopers and ambulance drivers? It means that if they sue another driver for injuries suffered in a car crash, they can't claim that their own responsibility for the crash counts only if they were "reckless". Their mere "negligence" will count against them. Earth shattering news? No. But worthy of a blog post? Sure hope you think so.

This central New York personal injury lawyer was born and raised in Syracuse, New York. My law offices are in Auburn, Cayuga County. I reside in Geneva, Ontario County. I am therefore fully rooted in central New York and the Finger Lakes region. But I like to travel. In fact, as a young man, I spent seven years living abroad. I speak several languages, including French and Spanish. My travels have taught me many things. One lesson I learned is that United States' personal injury law is the best in the world. Let me explain by telling a story.

One evening, while visiting my in-laws in Guatemala City, Guatemala, I was walking down a dimly lit side street to get to my in-laws' house. I came inches from stepping into a barely visible 3-foot wide, and who-knows-how deep, hole in the middle of the street. Municipal workers had created the hole and left it uncovered and un-barricaded. If I had taken one more step, I would have fallen into this hole and been seriously injured.

Why did the municipal employees leave the hole they were working on uncovered with no warnings or barricades? Because it did not matter to them. In Guatemala, a citizen can't sue the City for personal injury, pain and suffering, lost wages and medical expenses for municipal workers' negligence like we can in the United States. Since there was no price to pay, what incentive did those workers have to be careful? Answer: none.

Our civil justice system, and the personal injury lawyers who champion it, are responsible for the comparatively safe living standards that we enjoy in the United States, including: corporations providing consumers with safer products, doctors and hospitals employing safer medical practices on their patients, employers creating safer working conditions for their employees, landlords providing their tenants with safer apartments, owners of commercial business eliminating unnecessary hazards on their premises, and a host of other safety benefits that we Americans simply take for granted. Without our personal injury lawyers, and our generous civil justice system, none of these actors - manufacturers, doctors, employers, landlords, commercial property owners --- would have the strong incentives they now have to make safety a top priority.

Travel the world and you will see what I mean. Without our tort system, our lives would be very different. We would have to contend with much more of what many people in the world find "normal": unguarded holes in urban sidewalks and streets; chemical plants releasing harmful chemicals in neighborhoods; torturous mountain roadways with no guardrails; incompetent medical professionals performing unsafe procedures; toxic waste dumps near heavily populated areas; tainted and unsafe food supplies; dangerous drinking water; police brutality with impunity. The list goes on and on. All these evils are prevented here, in large part, by a civil justice system that allows victims of careless, negligent or intentional wrongdoers to be compensated fully for the harm caused.

Personal injury trial lawyers make society safer for everyone. That's why I am proud to be one.

First scenario: You are walking on a sidewalk in Auburn, Cayuga County, New York and trip and fall on a raised portion (a "differential") of the sidewalk that had been poorly maintained. You are injured. Second scenario: Same thing happens in Penn Yan, Yates County, New York. Question: Can you sue anyone to recover compensation for your injuries? Your central New York slip-and-fall lawyer's answer: You probably can if you are injured on a sidewalk in Penn Yan, but not in Auburn, New York. Make any sense? Of course not.

Welcome to the complicated world of New York sidewalk laws. To understand why the result is different in Penn Yan and Auburn, you first have to understand that there are two possible owners of city sidewalks: The city or the abutting landowner. In Penn Yan, the sidewalks are owned by the abutting property owners. You can sue the property owner if you trip and fall on his or her poorly maintained sidewalk.

But in Auburn, the abutting property owner does not own the sidewalk. The City of Auburn does. If you have the same accident on a city-owned sidewalk, for example in Auburn, your case is much tougher. New York State sidewalk laws protect the city from liability for trip and falls or slip and falls on its sidewalks if the city has enacted a "prior written notice" law. If the city has such a law on the books (which Auburn does), then generally you cannot sue the city unless, before you tripped or slipped on that defect in the sidewalk, someone else had written a letter to the city complaining about the same defect. But this almost never happens! Although people might call the city to complain, they rarely write letters complaining about a raised sidewalk or a pothole.

There are exceptions to this "prior written notice" rule. The main exception is that, if the city AFFIRMATIVELY CREATED the defect, you don't need to show "prior written notice". For example, perhaps the city just finished working on the sidewalk and left broken sidewalk pieces, or a hole, that caused you to fall. In that case you don't need "prior written notice" of the defect because the city "affirmatively created" the hazard.

Sidewalk laws in New York are complicated. If you slip or trip and fall on a city, town or village sidewalk in New York, only an experienced personal injury lawyer can tell you if you have a case. (By the way, the sidewalk law is totally different in New York City). If your lawyer knows what she is doing, she will first verify who owns the sidewalk (the city or the private abutting property owner). If the city owns it, she will check to make sure the city has enacted a "prior written notice" rule. If it has, then the lawyer will try to find an exception to the prior written notice law, such as the "affirmatively created" exception.

So the answer to the initial question posed in the title to this blog is . . . . . "maybe"!

I just completed my fourth annual round-the-State lecture to other injury lawyers regarding Municipal Liability for the New York State Academy of Trial Lawyers. You can see the outline for my talk at the "publications" page on our Michaels & Smolak, P.C. website. "Municipal Liability" means holding a government entity, such as a county, town, village, city, school district or public authority, liable for injuries. I lectured to Albany personal injury lawyers, Syracuse personal injury lawyers, Rochester personal injury lawyers, and Buffalo personal injury lawyers.

This is a hard topic. Bringing a claim against a governmental entity in New York State is like walking down a labyrinth strewn with hidden mines that can explode under foot. You need to know where to turn in the maze, and which steps to avoid. There are bizarre, complex special procedures you have to navigate through, and some very powerful defenses you have to watch out for.

As for procedures, before you even sue a municipality, you generally have to serve something called a "notice of claim", a legal document giving the municipality certain key information about the claim you intend to bring. This has to be served on the municipality in a very specific way within 90 days of the injury you want to sue for. Also, your statute of limitations is usually much shorter than when you just sue a private person. There are many other procedural differences too, including something called a "50-h examination", which is a chance for the municipality's lawyer to ask you questions under oath about your claim. To read a more complete detailed account of these procedural hurdles, read my Municipal Liability article "Suits Against Public Entities", which was published in the New York State Bar Journal several years ago, but is now conveniently located on our firm website at the "publications" page.

Even if you navigate your way through all these complex procedures, however, cases against municipalities and other government bodies often fail because of the very special and abundant defenses municipalities and goverrnments (and no one else) have under New York law. Oh, they have so many arrows in their quiver! I'll tell you about those, though, in a future blog entry.

I love giving this annual lecture tour for two reasons - first, it forces me to be on top of the complex rules and defenses you meet when suing municipalities --- towns, villages, cities and the like --- in New York State. Second, I get to meet and know great lawyers from around the great State of New York. New York, see you next year!