Central New York Injury Lawyer Blog

fear.jpgSome things we think we know, even things we feel certain are true, turn out not to be, on closer examination, false. I have come across a recent example of this. I do not believe I have been alone in having assumed, all my life, that it is safer to live in the country than in a big city. Haven’t you, too, always assumed life up here in peaceful Central New York is safer than in those dangerous big cities like New York?

Well, your assumption (and mine) was wrong! A recent study shows that cities are in fact safer than the country. If you think about it, I’ll bet you can guess why. Here’s a hint: It has to do mostly with cars and guns.

Give up?

Ok, I’ll tell you. First, you have to understand that the most common causes of death-by-injury are car crashes and gun accidents. And guess where there are more guns? Yup, in rural areas like upstate New York. Sure, you hear about the gun violence in the big cities. But gun accidents are much more prevalent, per capita, in the country because guns are just so much more numerous there.

And death by car accidents is three times more frequent in rural areas than in cities. That’s because city folks mostly get around by subway or bus and, even if they use cars or taxis, speed limits are a lot lower in the city, so accidents are less deadly than on our country roads.

True, the risk of death by homicide is higher in cities, but not enough to make up for all those car and gun-accident deaths in the country.

Add all this to the fact that, if you are injured, you can get to a good hospital faster in the city than out the country, and you can see why it makes sense that life in big cities is in fact safer than in rural places.

So am I packing up my suitcase and moving to the City where I’ll be safer? No way! I’ll take my chances up here in this dangerous Central New York rural area, where I’ll continue to represent victims of our dangerous way of life, especially car accident victims.

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

images.jpgThe jury probably did the right thing in the George Zimmerman case. Given the absence of good evidence about what happened between him and Travon Martin during those last five minutes, the defense established reasonable doubt about whether a crime, under Florida law, had been committed.

That doesn’t mean Mr. Zimmerman is innocent (just not guilty “beyond a reasonable doubt”) and it doesn’t mean he was right for tailing a young man simply because he was black.

But what does this have to do with my Central New York personal injury cases? A lot, actually. Every time we represent an African American in a Central New York courtroom, we have to wonder — will the jury treat him or her fairly? Will the jury harbor prejudices?

There is no question that a jury emphasizes more with victims who look, act and talk like they do. This is human nature. The more “different” someone is from you, the easier it is to distance yourself from their situation, from their suffering. And when that victim is black, the problem is magnified.

Example: I represent a young black man who was stabbed and sliced up in a Syracuse night club. We allege the night club was negligent in allowing the violent felon who assaulted him to circumvent the metal detector and security check and enter with a sharp metal instrument. Will the jury (which is predominantly white in all Central New York courtrooms) prejudge our client based on his race? Will they assume that since he is black he himself must be violent (he is not!), that he somehow provoked the attack (he did not!) or willingly participated in it (not!)? Would the jury harbor the same suspicions if our client looked like their (white) son or brother?

These are all questions we personal injury lawyers must address in “jury selection”, the first part of the trial where lawyers get a chance to talk to prospective jury members about their possible prejudices. But the real problem is not the prejudices the jury will admit to – those we can deal with by removing jurors who admit they can’t overcome their biases. The real problem is the prejudices that the jurors either won’t admit to or don’t even recognize in themselves. Those jurors will probably remain in the jury box – and their hidden prejudices may percolate into their decision making.

Be honest. You’ve got prejudices. If you are a fair-minded person, you do your best to overcome them, to judge people, in the words of Martin Luther King, by the “content of their character and not by the color of their skin”. But that doesn’t mean those prejudices aren’t there, where they’ve remained imbedded deep in your subconscious since early childhood. Can you overcome them in the jury deliberation room? If you happen to be in my jury pool on this case, that’s what I’ll be trying to figure out . . ..

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

20130529_145511.jpg20130529_145427.jpgTwenty eight years ago a smart, hard-working mother-of-two from Elbridge, NY — Ellen Williams — sent a resume and cover letter into the law offices of Lee S. and George M. Michaels (our predecessor firm) . Her two daughters were now old enough so she felt she could go back to work. She had just graduated with an associate’s degree in paralegal studies from Cayuga Community College in Auburn, NY. Now she wanted to realize her career goal – a job as a paralegal at a local law firm.

Meanwhile, Lee S. Michaels (our senior partner) was on the hunt for a smart, ambitious paralegal. His personal injury practice was growing by leaps and bounds. He wasn’t finding the time to draft all his own pleadings, review and summarize the hundreds of pages of medical records that landed on his desk every month, set up and calendar his depositions, and reach out to his clients for additional information he might need.

Lee received Ellen’s application, met her, and hired her on the spot.

Twenty eight years later this past May, Ellen drafted her last pleading, fielded her last phone call, and summarized her last medical record. By that time, she was paralegal to four busy lawyers. Yes, she left us – for retirement – and headed off on a whirlwind tour of the USA with her husband of almost four decades – Tom.

One of the amazing things about Ellen was her steel-trap mind. You could buzz her at any time and ask her, “Ellen, what’s going on with the Jones case”, and she would be able to tell you, without referring to our computer database, exactly what was going on, what we were waiting to receive, what needed to be done, and, to boot, what she thought of the case.

More amazing still, you could buzz her and say, “Ellen, remember that case about 12 years ago where I briefed that legal issue of strict liability for scaffold accidents — I could really use that brief” – and she would tell me the case — usually without pause.

She had an uncanny ability to read a file, meet a client, and know exactly what the issues were going to be.

We aren’t the only ones who miss Ellen. Clients loved her, too.

To celebrate her many years of outstanding service, we regaled Ellen — and all our staff – with a meal at a fine Finger Lakes eating establishment – The Elderberry Pond — overlooking the orchards and vineyards that make our little corner of the world so special. We also tucked a gift away in her travel suitcase!

In the first photo above, Ellen is sandwiched by me (on left) and partner Jan Smolak on right. The next photo shows Ellen’s husband — Tom — and our whole staff. Partners Lee Michaels and Dave Kalabanka partook in the festivities, too, but somehow escaped the camera’s lens.

Ellen is still “on the road” with Tom, so she probably won’t be reading my blog posts for a while. Ellen, wherever you are, bon voyage, and by the way, could you tell me the name of that case about 7 years ago where I briefed the issue of liability for rear-end collisions?. . . I could really use that brief!

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

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

Thumbnail image for Thumbnail image for texting and driving.jpegGov. Cuomo justified the new law (not that he needed to) by stating the obvious: Texting while driving is a growing problem, especially among young drivers.

How do we know? The number of texting-while-driving tickets issued has soared, from about 3,500 in 2011 to 30,000 in 2012. And those are just the ones who got caught! The average age of the drivers caught is only 26.

How else do we know? Just ask me. Among my New York personal injury case load, texting-while-driving cases are growing. Rear-enders are prominent. Most offenders are young. The texting offender never suspects the guy he is following is going to stop in the middle of the road to turn into a driveway.

Cuomo has also proposed a law suspending new drivers’ licenses for 60 days if they are convicted only once of texting while driving.

We at Michaels & Smolak applaud governor Cuomo for ratcheting up the penalties for texting while driving. Texters — kill your habit because your habit kills.

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 Car Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

cow in road.jpg-39572.jpgYou’re driving along a country highway, rounding a curve, when —- bam — you run into a cow. Yes, a cow! Why? Farmer Brown left a gaping hole in his fencing, and the big dumb animal wandered out. Can you sue the farmer for this obvious negligence?

Until just the other day, the answer was, surprisingly, “no”, at least not in New York. The rule in New York (which I blogged about last year) was that you could sue the owner of an animal which harms you ONLY if the owner knew or should have known the animal had “VICIOUS PROPENSITIES“.

This “vicious propensities” rule grew out of dog bite case law. The courts reasoned that it wouldn’t be fair to hold a dog owner liable for his dog’s first bite unless he knew his dog was a problem. This was sometimes referred to – though not very accurately – as the “one free bite rule”.

But the “vicious propensities” rule never made any sense with stray cows or other farm animals. Since cows are never “vicious”, farmer Brown could let Bessie out onto the roadway innumerable times and cause innumerable accidents but suit would always be barred because the animal was not “vicious”.

The law in New York, as it stood, was an outrage.

No longer. Just the other day, the Court of Appeals changed the law with the case of Hastings v Suave. In that case, the Court ruled that “a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept” even when the animal did not display “vicious propensities”.

But what happens if a (non-vicious) dog or cat strays out into the roadway and causes a collision? Can you sue the owner then? The Court left that question open for another day, stating “we do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case”.

That “different case” should not take too long to go up to the Court of Appeals. Cats and dogs running into the road and causing accidents is fairly common.

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

images.jpgEveryone loves a fighter. Someone who, when faced with great tragedy, hardship, or injustice, doesn’t just lie down and give up, but shoulders on and fights back. That’s why the story of Adrianne Haslet, a Boston Marathon bombing victim, is so compelling. The bomb blast blew off her left foot – a devastating loss — especially since she is a ballroom dance instructor.

But Adrianne is a fighter. She told the Boston Herald, “I absolutely want to dance again!” Do you doubt her?! She elaborated, “I just want people to know that you can come out of a situation that might seem like the end of the world and come out stronger.”

But why is Adrianne featured in my New York personal injury lawyer blog? Because Adrianne would make a perfect personal injury client. We all love fighters, and juries are no different. That’s why personal injury victims who fight back from an injury, who try to rehabilitate themselves, who try to remake their lives, fare better in Court than those who wallow in misery and self-pity.

Many people assume that personal injury lawyers like me coach our clients to moan, groan and complain, to “play up” their injuries to the jury. Nothing could be further from the truth. No one likes a whiner. Good personal injury lawyers hardly have their clients talk about their injuries on the stand at all. They let their doctors, friends, neighbors and family members describe how the injuries have affected the client.

Yes, juries respect fighters, and reward them. I have been fortunate in that most of my clients fall into the “fighter” category. I am proud to represent them. I love telling their story to the jury. And the last thing I want them to do is whine in front of the jury.

I want my legless client to tell the jury how she is going to dance again! I want them to be like Adrianne Haslet. Hats off to you, Adrianne.

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

images.jpgThere is no true justice on this earth. Believe me, I’m in the justice business, so I know. And it’s not our fault. Our justice system, even the much decried personal injury law system, does the best it can. But it still falls short.

Take the Boston Marathon explosions. We don’t know who did it yet, but let’s assume they’re caught and end up in jail or on death row. Can they be forced to compensate their victims or their surviving family members for their life-long wage loss, medical expenses, pain and suffering, etc.? Hell no. I can almost guaranty it. Why not? Well, if the bad guys are homegrown (a la Timothy McVeigh), they will have shallow pockets. They are crackpots with nothing to lose. No big bank accounts to go after. On the other hand, if the terrorists turn out to be foreign operatives (a la Bin Ladin), they may have assets, but they will be hidden away in some remote spider hole half way around the world. You can never get to them.

That’s why it is unlikely that the victims will even bother suing them. Instead, if they choose to sue anyone at all for their personal injuries, it will probably be the local companies or officials who, through security lapses or other negligence, may have allowed the attacks to happen. I am not saying there were any security lapses — in fact there probably were not. This kind of attack is probably impossible to prevent. But if there were security lapses that allowed this to happen, then those responsible would be targets worth going after because they would likely have insurance or assets within reach.

Other terrorist victims have sued non-terrorists for compensation. For example, in the World Trade Center bombing (not 9/11, but an earlier attack where a massive bomb was planted and detonated in the parking garage below), the victims ended up suing not the terrorists, but the owner of the Twin Towers. And they proved at trial that the owner had knowledge the attacks were being planned. They proved at trial that the security system was woefully inadequate, given those threats. The jury found the owner liable, and awarded the victims sizable verdicts.

Unfortunately, the owner happened to be a governmental entity known as the Port Authority of New York and New Jersey. Governments are often entitled to immunity from personal injury suits, even when they are grossly negligent. The highest court in New York State, the Court of Appeals, reversed the jury’s verdict, finding that the defendant was entitled to governmental immunity. See, Matter Of World Trade Center Bombing Litigation., 17 N.Y.3d 428, 957 N.E.2d 733, 933 N.Y.S.2d 164 (2012). So the victims won the battle (trial) but lost the war.

Another example of terrorist victims suing non-terrorists for compensation is 9/11. The victims ended up suing the airlines for their alleged security lapses in allowing the hijackings to happen. Of course the victims did not bother suing Bin Laden or his cronies.

Some of the Boston Marathon victims might desperately need money. Imagine you just lost your legs. You’ll likely be out of a job for a long while. You’ll need lots of medical care. Lots of therapy. Psychologists. All kinds of needs. In sum, you need money. One target might be the Boston Athletic Association, who manages the Boston Marathon. Perhaps they could have or should have hired more security. I’m not by any means saying that’s true, but a good investigation might turn something up.

You could say it’s not fair that a negligent security provider has to compensate the victims of a terrorist attack while the terrorists don’t. I agree. But on the other hand, it would be even more unfair to let the people responsible for security failures off the hook and leave the legless or lifeless victims holding the bag.

As I started out saying, there is no true justice on this earth. But there is sometimes a small cup of justice.

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

20130402_151224.jpg images.jpgA lawyer’s godda geddaway sometimes. But can you ever REALLY get away from your work?

Last week was spring break for my boys, so I took one of them, shown here with me, to Boston. (Actually, we were there to take my mother to see some specialists, but that’s another story . . .). While there, we jumped on the Boston Duck Tour. That’s an amphibious tour bus — the same bus that wheels you through the streets of Boston eventually plunges into, and then puts around in, the Boston harbor. See picture below.

As a Central New York personal injury lawyer, I see a lot of accidents, and it seems like a lot of them happen on holidays. Where others see fun I see disaster. And getting on a tour bus destined to drive into the Boston harbor was not exactly a tonic to my accident-phobia.

The driver’s instructions just before we took the plunge only made matters worse:

Driver: “If the vessel should begin to sink, the life jackets can be found . . .”
Me: “What?! That’s actually possible?!”

My law firm represented the families of several retirees killed on a tour boat that capsized on Lake George only a few years ago. With that background, it is not surprising that, as the duck bus bounced around harmlessly in a slightly choppy harbor, the imaginary headline in my head read: “Boston Duck Tour sinks killing 23!”

Needless to say, we made it back to shore safe and sound. But not content to leave well enough alone, I later googled (from a safe and dry place) “duck tour accidents”. I learned that in 1999 a Duck tour bus sank in Hot Springs, Arkansas, killing 13 of the 20 people on board, that on June 23, 2002, a duck bus on the Ottawa River in Canada, sank, causing four passengers trapped under the vehicle’s canopy to drown, and that on July 7, 2010, a duck bus was disabled by an engine fire and later run over by a barge on the Delaware River in Philadelphia, killing two passengers.

Glad I didn’t perform this Google search BEFORE the tour.

While I wouldn’t say that my line of work actually makes me more afraid to die or of getting injured, it makes me think about it more often, and in more situations, than most people.

So yes, I got away from my work last week. But my work did not get away from me . . .

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

small.jpgSometimes when I read newspaper accounts of other personal injury lawyers’ cases I wonder why those lawyers bothered to take them. While I wouldn’t call them frivolous, they just don’t make economic sense. How can you make a living taking those kinds of cases?

Case on point. Disney World’s “It’s a Small World” ride gets stuck. While most riders are evacuated right away, a paraplegic (from a prior injury), who is difficult to remove, is left on the ride for 30 minutes while “It’s a Small World” blares over and over again.

He sues Disney in Federal Court, claiming they should have called firefighters to evacuate him along with the others. He claims his high blood pressure and tendency toward panic attacks were aggravated as he sat in the boat listening over and over again to “It’s a Small World”. How much money would you give him? What’s his case worth?

He got $4,000 for pain and suffering and $4,000 in statutory compensation under disabled protection laws. That’s far more than most upstate New York personal injury case juries would have awarded him for enduring ½ hour of annoying music.

To be honest, hearing “It’s a Small World” over and over again would make my blood boil too! But this guy’s lawyer took the case all the way to trial, which must have represented at least $20,000 worth of legal work, and ended up with only a $2,000 or $3,000 contingency fee. Hard to make a living that way.

There’s nothing wrong with taking on a small case on a big principle. There’s nothing wrong with fighting hard for a noble cause for little or no fee. I’ve done all of that. But I am having a hard time finding the big principle worth fighting for here. I don’t know whether to admire that lawyer or pity him.

I wonder what the theme of his case at trial was. “It’s a small case after all”. How about “I’m making a small fee after all”. You get the point . . .

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