Recently in Municipal Liability Category

August 27, 2013

No Tort Law = Sidewalk Hell (CNY Injury Lawyer Explains . . .)

IMG_0242.JPGIMG_0243.JPGIMG_0245.JPGIMG_0248.JPGIMG_0250.JPGIMG_0262.JPGIMG_0261.JPGIMG_0257.JPG



-------------------- As my regular readers know, I was in Guatemala for the last few days taking deposition testimony. Why so far away to take testimony? I blogged about that here.

I love Guatemala. Beautiful country, weather and people. But some things are definitely better in the U.S. For example, the sidewalks in Guatemala City are treacherous. How treacherous? Take a look at these photos I took all within a few blocks of my hotel. And that's the best section of Guatemala City!

Traveling to a country like Guatemala makes me appreciate U.S. "tort laws", that is, the laws that allow us to sue for money damages if we are injured. These laws are necessary to keep us safe. If the laws are stripped from the books (as "tort reformers" would have it), there is no financial incentive for companies and others to keep things safe.

In Guatemala, unlike in the U.S., there is hardly any tort law. For example, you can't sue your local municipality (city, town, village, etc.) for poor maintenance of sidewalks or for creating defects there. If they leave a gaping hole in the sidewalk and you trip or fall in, tough bananas!

Still think tort law is a bad thing? Still want "tort reform"? Take a good look at these photos and think again . . .

Keep safe!

Mike Bersani

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

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

1-315-253-3293

August 18, 2013

Central NY Injury Lawyer Invited to Speak to NY Judges about His Recent Article

Seal_of_New_York.svg.pngThis Auburn New York personal injury lawyer has a new feather in his cap. I have been invited to speak at a state-wide meeting of New York Court of Claims judges in Cooperstown, NY on September 26. It appears that several judges read my recent article, which recently appeared in the New York Bar Law Journal, on the topic of "governmental immunity", and want to hear me talk on the subject.

Governmental immunity is hot button topic for New York personal injury lawyers and judges. The "governmental immunity defense" can be raised by any governmental agency that is sued for personal injuries, including the State.

The Court of Appeals (New York's highest Court) has recently come down with a series of rulings that tilts the playing field of this defense in favor of the government at the expense of victims of the government's negligence. (That's what I wrote about). Since Court of Claims judges preside over all personal injury claims brought against the State of New York, it is easy to see why the judges want to hear from me.

There are three adjectives that describe New York's governmental immunity law: convoluted, byzantine and labyrinthine (I couldn't decide which one of those adjectives to use so I used them all!). In my article, I try to simplify and clarify the law while explaining the new Court of Appeals rulings.

So how will I feel telling a room full of New York judges (some of whom I will be appearing before on my personal injury cases) what the law is and how to apply it in their Court rulings? This time I have only one adjective:

SCARED!!!

Keep safe!

Mike Bersani

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

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

1-315-253-3293


July 12, 2013

Central NY Injury Lawyer's New Article on Municipal Liabilty

Picture of Michael Bersani .jpgFolks, it's been a while since I have had the time to blog --- been in trial! But now that I am out of trial - and have some breathing space - I wanted to post an article of mine that was recently published in the New York State Bar Association Journal. It's titled "The Government Function Immunity Defense in Personal Injury Cases in the Post-McLean World".

This article is for my fellow-lawyer readers. It walks you through the most recent legal requirements for getting past the "governmental immunity defense", which is often raised when you sue governmental entities such as the State, counties, cities, towns, villages, school districts, etc. I hope this article helps my fellow lawyers navigate the rough seas of municipal liability.

And I will be traveling throughout the State, once again this fall, to present to my fellow lawyers my municipal liability update ---- a compendium of new case law on the subject. It will be great to see old friends from all around the State. Hope to see you then!

Keep safe!

Mike Bersani

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

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

1-315-253-3293

January 1, 2013

What's New in New York Personal Injury Law in the New Year (2013)?

maze.jpgThe biggest single change for 2013 in New York personal injury law is, without a doubt, the Uniform Notice of Claim Act, which Governor Cuomo has signed into law on December 20.

It's a real game changer. Let me explain.

Until now, New York public entities (counties, cities, towns, villages, school districts, public authorities, fire districts, water districts, public libraries, etc.) have enjoyed disseminating a jungle of inconsistent procedural rules and time limits for starting personal injury lawsuits against them.

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

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

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

Highlights from the act are:

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

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

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

Keep safe!

Mike Bersani

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

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

1-315-253-3293

October 28, 2012

Lawyers Who Handle Buffalo NY Sidewalk Trip-And-Fall Cases, Take Note!

Thumbnail image for sidewalk.jpgThis blog post is directed to my fellow New York personal injury lawyers who might have trip and fall cases from Buffalo, New York, but also it is worth reading if you have been injured by a defective sidewalk in the City of Buffalo, NY.

As my regular readers know, every year I cull through all the new cases involving "municipal liability" in New York State. I read all the reported decisions regarding lawsuits brought against cities, towns, counties, school districts, the State of New York and other governmental entities in New York. I then summarized the important new cases and travel around the State lecturing other New York personal injury lawyers about the new developments.

This year I noticed a new case from the Appellate Division, Fourth Department dealing with sidewalk defect cases in Buffalo, New York. Before I explain the case, you first have to understand that, in most cities in New York, trip-and-fall-on-sidewalk cases are very difficult because you have to sue the city and you also usually have to show that the city had "prior written notice" of the defect that made you trip and fall. And as a practical matter, there is almost never prior written notice of such defects because nobody goes around writing the City about sidewalk defects. At most, they might make a telephone call, but that is not enough to trigger liability for future falls; it must be prior written notice.

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

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

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

Keep safe!

Mike Bersani

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

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

1-315-253-3293


September 12, 2012

Central NY Injury Lawyer Goes On Tour!

72x10007E1A2458-700x466.jpgI am going on tour again this fall. Tickets are still available to catch my show. Email me and I'll make sure you get in. My itinerary? Buffalo, Rochester, Albany, Syracuse and New York.

Bruce Springsteen performed in all those places. But unlike Bruce, when I am done with my gig, I really don't expect to see any lighters flick on.

No, no, I am not a rock n' roll star like Bruce. Rather, I'm just a humble New York personal injury attorney dashing around the State to fill other New York accident lawyers in on the newest developments in "New York Municipal Liability" law.

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

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

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

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

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

Keep safe!

Mike Bersani

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

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

1-315-253-3293

June 4, 2012

Central And Syracuse NY Wrongful Death Lawyer's Firefighter Case Finally Settles

firefighters.jpg.jpgJust before jury selection a few months ago, I tentatively settled a complex Syracuse New York wrongful death case I was about to try. For the settlement to be final, we needed Onondaga County's legislature to approve it, and several layers of workers' compensation approval, too. We finally got the last stamp of approval last week.

The case, which has bounced its way through the court system for more than 8 years, and went up on appeal twice, generated a lot of press, not only locally, but nationally, especially in firefighter publications. It is believed to be the only case where a court has ruled that a firefighter, and his or her employer, can be held liable for negligently issuing firefighting instructions or orders that end up killing or injuring another firefighter.

Yes, I am proud of this win. It took years of hard work, innovative legal arguments, the scaling of the high and thorny firefighter "red wall of silence", untold hours of preparation (ask my wife and kids!) and, of course, a large dose good luck, too. This blog post is a kind of "scrape book" for the case, and that's why I am listing below a few of the headlines this case generated over the years (you can read the full articles by clicking the headlines):

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

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

Fire Department Officers Liable in Double Firefighter LODD

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

$1.2 million goes to widow of Fayetteville Firefighter Timothy Lynch under proposed settlement

Keep safe!

Mike Bersani

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

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

1-315-253-3293

November 12, 2011

Central New York Injury Lawyer Discusses Penn State Sexual Abuse Lawsuits

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

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

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

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

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

Keep safe!

Mike Bersani

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

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

1-315-253-3293

August 14, 2011

Central New York Injury Lawyer's Blogging Gives Way To Preparing New York State Personal Injury Lecture

Picture of Michael Bersani .jpgI 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

August 1, 2011

New York Playground Accident Lawyer Discusses Recent New York Times Article

playground (2).jpgI 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

September 28, 2010

Central New York Injury Attorney Travels Across New York State To Teach Other Accident Lawyers About New York Municipal Liability Law

Thumbnail image for masthead_lt[1].jpgThis 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


April 22, 2010

Central New York Pedestrian Accidents and Lawsuits May Be Avoided by "Complete Streets Week" Survey.

sidewalk.jpgThe 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!

January 22, 2010

Can Student Hit by Car sue Village of Waterloo, New York, or the Waterloo School District for Failure to Provide Sidewalks for School Children?

schoolsign.jpgThe 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.

December 20, 2009

New York's Highest Court Rules That Emergency Vehicle Operators Can Be Tagged for "Comparative Negligence" When They Sue Others for Car Accidents

policecarcrash.jpgThis 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.

December 18, 2009

Personal Injury Lawyers in Central New York and Throughout the United States Make Americans Safer.

uncoveredmanhole.jpgThis 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.