Central New York Injury Lawyer Blog

traffic ticket.jpgAs a recipient of more than a few speeding tickets within the last few decades, I took an interest in this NY Times article about a $58,000.00 speeding ticket in Finland.

The offender was clocked at 64 miles per hour in a 50 mile per hour zone. Doing the math, that works out to $4,143.00 for every mile per hour above the limit.

Why so high? What determined the high price was not so much the offense as the offender. The speedster was a multimillionaire in one of the few countries in the world where fines for traffic infractions are calculated based in large part on your income. The mindset in this Scandinavian country is that the sting of the fine should be felt equally by rich and poor. The sting of a $100 fine is felt by the street sweeper but not by the banking tycoon. Thus, in Finland Fine-land the government calculates your fine based on half your daily net income multiplied by the number of days of income you should lose according to the gravity of the offense. This particular $58,000 ticket represented a half-a-day’s income of the wealthy offender.

I wonder how Fine-land would handle the fine for a U.S. visitor like me caught speeding on its roadways? Would they subpoena my US income tax returns in order to calculate the “sting effect” of the fine?

I’m not anxious to find out. I think my next Scandinavian vacation will be in neighboring Norway.

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 auto accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

shoulder injury.jpgteacher knocked out.jpg
In nearby Tioga County, NY, a 10-year-old boy was recently hospitalized after his math teacher caused this injury (see photo) to the boy’s shoulder. The kid’s mom posted the photo on her Facebook page. Mom and child have served a “notice of claim”, which is the precursor to a lawsuit, on the School District. The notice of claim alleges that the boy was working on a math question, when teacher overheard him say, “c’mon.” The teacher then confronted the boy, dragged and lifted the boy by his right arm from his seat, and pushed him out of the classroom. He has apparently suffered a separation of his clavicle bone. Ouch!

Meanwhile, in another part of New York State — down in Long Island — the mother of a middle school student received a call from her 12-year-old daughter complaining that her teacher had “put her hands on me.” The outraged mother raced to school and somehow got past security (that should not have happened) and into the school. She then made a beeline to the teacher’s classroom, attacked her, put her in a headlock, and then threw her to the floor where the teacher lost consciousness. That’s her lying on the floor in the photo. (It’s all captured on surveillance tape). But that’s not all. While lying on the ground unconscious, the teacher was beaten by several students, including the mother’s 14-year-old niece. Talk about being an unpopular teacher!

So why am I blogging about these two unrelated events? Well, first, they are somewhat related in that they suggest there must be something in New York State’s drinking water making people crazy at school.

But I also am blogging to show you how different the two suits will be. The boy suing the teacher and school district for the shoulder injury has to show only that the teacher used unnecessary and careless force in removing him from the classroom. But if the beat-up teacher wants to sue someone for her injuries, she has got some big hurdles to overcome. Let’s talk about that.

Suing the out-of-control mother and the student assailants will likely be a worthless exercise because none of them are likely to have any assets to go after and, even if they have liability insurance in their homeowners’ policies, it won’t cover assaults.

Next, the teacher may consider a suit against the school district for negligence in allowing the enraged mother to get past the security system. That sure was a big breach of security! But here the teacher may run up against a workers’ compensation defense. You generally can’t sue your employer if your employer provides workers’ compensation. But in downstate NY many teachers have collective bargaining agreements in which workers’ compensation does not bar suit against the employer.

Even if there is no workers’ comp bar, however, the case will be nearly impossible to win. That’s because her suit is likely to be barred by the “governmental function immunity” defense. Since a school district is considered a governmental entity, most suits against it brought by anyone except a student are subject to the governmental immunity defense. To get past the defense, the teacher must show – among other things – that the school district had a “special duty” to her beyond the duty it had generally to other teachers and visitors at the school to protect them from attacks. That means the teacher will have to show – among other things – that the school made some kind of (at least tacit) promise directly to her to protect her from this kind of assault, and that she relied on that promise to let her guard down, which resulted in her allowing herself to be put in a vulnerable position where she was assaulted. All that is nearly impossible to prove.

But students injured at school don’t have to worry about this defense because the school has assumed a duty to the students by virtue of the doctrine of in loco parentis, which in Latin means “in the place of a parent”. It means the school district has legal responsibility for the well-being of the student while the student is in its custody, just as the parent does at home. There is no governmental immunity. The school district will be liable for its teacher dragging the student by the arm, thus dislocating or fracturing his clavicle, regardless of whether the student can establish any “special duty”. The duty from the school district to the child stems from the in loco parentis doctrine, not from any “special duty”.

I know, it’s all very complicated. That’s why you always need to consult with a lawyer experienced in suing school districts when someone you love – or you – are injured on school premises. And you need to get a lawyer quickly. Generally, you have to serve a “notice of claim” on the school district within 90 days of the incident to protect your rights. That’s not a lot of time!

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 & Syracuse NY School Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

images.jpgExtra, extra read all about it: West Virginia woman files lawsuit against Walt Disney Corporation claiming Disney planted a rubber chip in her body without her knowledge or consent!

She filed the complaint last month in Kanawha Circuit Court, West Virginia. The lady is seeking for monetary damages and for the chip to be removed from her body. Can you blame her?

She is representing herself.

You might be thinking “frivolous lawsuit”! You’d be wrong. This is not a frivolous lawsuit. It is a crazy lawsuit. The difference is that in a frivolous lawsuit something happened to the plaintiff, but it really should not be the grounds for suit, while in a crazy lawsuit, nothing happened to the plaintiff, except in her head.

I tell this story to point out a truth about our legal system: Anyone can sue for anything. If the suit has no merit, it will later get dismissed. But actually filing a lawsuit is easy. Any crazy can do it. No police officer or court attendant stands at the courthouse checking to see whether lawsuits being filed are frivolous or crazy.

But wait. There is a possibility – no matter how remote – that I am wrong about this Disney suit. One has to keep an open mind. Maybe I am the crazy one and the West Virginia woman is not. After all, some weird stuff does go down in Disney. For example, last time I was there a dwarf (there were seven of them) asked me for my ticket while I waited for the Space Mountain ride. Then I saw a human-sized talking mouse walk by! Weird? Well, who’s to say that some space alien employed by Disney did not in fact plant a rubber chip in this poor West Virginian’s body? Par for the course in Disney.

Hey, maybe I’ll call that West Virginia woman and ask her if she wants me to represent her. In Disney terms, I’d be her Knight in Shinning Armor.

Naa. I think I’ll pass . . ..

Keep safe .. and sane!

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

car upside down in river.jpgWarning: This is a sad story.

A man’s 16-year old daughter was killed when her car veered off a bridge, overturned, and flipped into a creek. After the accident, the authorities agreed to install a guardrail on the bridge to prevent similar tragedies.

Thirty days went by and still no guardrail. The grieving father – who could not stand the sight of the unprotected bridge – decided to take matters into his own hands. He began to build a temporary guardrail. As he was in the act of doing so, the authorities asked him to stop. He refused. He just could not stand to see another car go by unprotected.

He was arrested for “interfering with government property” and had to post $5,000 bail to stay out of jail. After posting bail, the father gave a brief interview to a TV camera. His statements are so poignant as bring tears to your eyes. He holds no grudge against the arresting officer: “The officer had to do his job, and as a father, I had to do mine”, the man said. “All I wanted to do was save lives. When you’re a grieving parent, when you’ve lost your child, you do what you’ve got to do.”

Who can blame him?

Hey you police officers, give the guy a break. Install that guardrail right away, give this grieving dad his bail money back, and drop all charges.

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 & Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

Thumbnail image for Thumbnail image for Alan-Dershowitz-1.jpg Thumbnail image for PAY-Virginia-Roberts.jpgEven though the bulk of my work is New York personal injury litigation, I often get asked to represent plaintiffs in defamation (slander and libel) claims. The callers soliciting my services are usually livid that so-and-so made disparaging remarks about them, all lies. They are outraged. Of course they are. A good reputation besmirched is a terrible thing.

Still, it is one thing to be angry, and another to embark on the long and expensive journey of civil litigation. I usually have to bill a client by the hour, rather than on a contingency fee basis, in defamation suits. That’s because liability insurance won’t cover the defamer — we have to reach into his or her pocket to collect on a judgment. And most defamers have little or no money to go after. So collecting on the judgment is very uncertain. And there are usually other uncertainties: Can we prove the statement was a lie, and if so, one that fits the narrow category of lies you can sue for? For example, if a client says of me, “my lawyer is an idiot”, that may be a lie, but it expresses an opinion, and therefore I can’t sue for it. But if the client said, “my lawyer is stealing from me”, I can sue because it states an alleged fact, not an opinon, and one that — if true — would constitute a crime.

My first question in helping the would-be client decide whether to pursue a defamation case usually is, “can you prove you were ECONOMICALLY harmed”? That’s because most defamation cases are not worth the trouble or cost of bringing unless you can prove that the lies actually caused financial harm, for example loss of business or lawyer’s fees defending criminal charges.

But when you are rich, and don’t need to worry about the high cost of going to Court, things are different. Take Alan Dershowitz for example (see top photo). He is the internationally renowned lawyer and Harvard College of Law professor who helped represent O.J. Simpson and Mike Tyson, among others. And he’s no patsy. Recently, a certain Virginia Roberts (lower photo) made allegations that he (and Prince Andrew of Great Britain and others) had used her as a “sex slave” at lavish (and lascivious) parties when she was still 17 years old.

Dershowitz’ reaction was visceral and aggressive. He promised he would sue her for defamation. But his aim is not to get money. No, he has enough of that, and she probably doesn’t have enough to pay any significant judgment. So why would he sue?

Mr Dershowitz is suing to clear his name. As with any civil suit, the parties to the defamation suit have the right to take each others’ depositions under oath. Dershowitz plans to use this opportunity to test whether Ms. Roberts has the “hutzpah” (a word I am sure Dershowitz himself would use since he is proudly Jewish) to repeat her allegations under oath (so far her allegations are not under oath), which would constitute perjury, which is a crime. He says he hopes to get Ms Roberts jailed for perjury if she repeats the sexual abuse allegations under oath in the defamation suit.

Let’s face it, money matters. Yes, you get better medical care if you are rich, and better housing, and better food. You get better justice, too.

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

car under truck.jpgThis is not easy to stomach. Not for you. Not for your teenager. But watch it. And then make sure your teenager watches it. The driver of the car in the photo was texting and did not see the tractor trailor stop to turn left. The video below is very graphic. Don’t text and drive!

video of texting while driving accident

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 & Syracuse NY Auto Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

bicycle mike.jpg
Well, spring is finally here (I think . . .)! Yesterday I pulled the bike (bicycle) out, cleaned it up, lubed the chain, and I’m ready to roll. (That’s me on my bike in the photo!) What about you? Ready to roll?

Before you get out there and become a moving target for distracted drivers, remember these safety tips:

LOCK EYES WITH THOSE GUYS: At intersections and driveways, try to “lock eyes” with motorists to be sure they see you. Don’t assume they see you. Assume you are invisible. Unfortunately, to many motorists, you are!

BRIGHT IS RIGHT: Bright colors please, and blinking rear and front lights, even in the daytime. This MIGHT make them see you!

RIGHT IS RIGHT: Whenever possible ride to the right of traffic but an open-car-door width away from parked cars.

PRACTICE ZEN: No daydreaming allowed on two wheels. Be in the here and now. You need to see everything going on because they won’t see you.

DON’T BE A TOOL, FOLLOW THE RULE: If you follow the rules of the road, drivers will be able to predict what you do. But if you don’t, you may become a hood ornament.

LOSE THE TUNES: Earphones and music are a good idea for a run or a walk, but not for a ride. You need to hear that car approaching from behind. In New York you are required to have at least one ear free while riding a bike (but two ears are better than one).

GO WITH THE FLOW: Some cyclists think that they can and should ride against traffic just like pedestrians or runners. WRONG. Because they are faster than walkers or runners, cicyclists are safest when they ride in the same direction as traffic. Going against traffic is most dangerous at intersections where drivers are looking left for approaching vehicles.

DON’T SURPISE’EM: Hand signals tell motorists what you are going to do. Believe me, you want them to know!

PROTECT YOUR MOST IMPORTANT ORGAN: Your brain, of course. Wear a bicycle helmet! Not legally required in New York if you are 14 or over, but highly, highly recommended.

Have fun, and . . . .

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 CNY & Syracuse Bicycle Accident Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

chairlift.jpgAs an avid skier, I was distraught to read about another terrible chairlift malfunction at Sugarloaf Mountain in Maine. The chairlift suddenly started moving swiftly backward. Seven skiers were pretty seriously injured, some of them because they removed their skis and jumped to “safety” from the chairlift, fearing that they would be more severely hurt if they wound up getting spun through the chair housing unit at the bottom. More than 200 people were later evacuated from the chairlift over a 90-minute period.

This isn’t the first time a chairlift malfunctioned at Sugarloaf. In December of 2010, a chairlift cable derailed, dropping 5 chairs violently to the ground. Five adults and three kids were injured in that accident. That time Sugarloaf was at fault for negligent operation of the lift. Sugarloaf paid out-of-court settlements to the victims.

This time the manufacturer of the chairlift – Partek Ski Lifts — is to blame. Engineers believe a design flaw prevented a safety system from locking the chairlift in place after a mechanical failure caused it to begin moving in reverse.

Do you smell a lawsuit brewing? You betcha. The manufacturer will get sued on a “product liability” theory of liability. In a “product liability” suit, the plaintiff does not even have to prove the manufacturer was “negligent” or “careless”, but only that the product – in this case the chairlift – was unreasonable dangerous. In this case it seems pretty clear that it was.

Product liability lawsuits – like the one that will surely be brought here – are good for all of us. There is no better “engine” for safety than a tort lawsuit. Think government regulations alone can make us safe? Chairlifts are a good example of how they cannot. The state agency charged with inspecting Maine’s chairlifts is the same overburdened agency charged with inspecting all of the State’s elevators: Maine’s Board of Elevator and Tramway Safety. The agency is not sufficiently funded to conduct regular and vigorous inspections, and the fines it opposes amount to a mere slap on the wrist. It is — like many such agencies — a paper, toothless tiger. The real tiger – the one with sharp teeth — the thousand pound gorilla that puts fear into corporate boardrooms all over America — is the products liability lawsuit.

So bring on the lawsuit. For the victims and for all of us.

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 Dangerous Products Lawyers
Michaels & Smolak, P.C.

1-315-253-3293

snowy blizzard.jpgDid you see the recent article in the Syracuse Post Standard about weather-related motor vehicle death statistics? Statistics can be pretty boring. But I found this pretty interesting.

The new study shows that SNOW, SLEET AND FREEZING RAIN cause more than 800 vehicle-related deaths each year in the U.S. And one of the highest snow-related death areas was – you guessed it – Upstate New York’s “snow belt”. Hey, if Syracuse basketball can’t be number 1, at least Syracuse is number 1 at something . . . :)

Lake effect snow is literally deadly. Not surprisingly, the intensity of snowfall correlated strongly with the number of vehicle deaths. Also not surprisingly, New York City has a much lower rate of snow-related motor vehicle deaths than Upstate. Onondaga County and Oswego Counties had the highest rates in the state.

What about rain? It is deadly, too. In fact, it contributes to nearly four times as many vehicle crash deaths as snow and sleet do. But that’s because it rains a whole lot more than it snows and sleets. During the 2002-2012 study period, 2,876 people per year died in rain-related U.S. car accidents.

Actually, almost none of these deaths are caused by weather conditions alone. They are caused by drivers driving too fast for those conditions. Drivers often underestimate the slipperiness of roads in rainy and snowy conditions. They lose control of their vehicles or can’t brake fast enough when a hazard appears.

So slow down! Especially in snow, sleet and rain.

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

car accident.jpgLet’s say you get into a car accident in New York State and it was the other guy’s fault. But when the police officer shows up and “investigates” he determines it was your fault. And he says so in his accident report. You sue the at-fault driver for your injuries. Can the cop’s police report come into evidence against you? Can the cop testify it was your fault?

The answer generally is, no and no. Why not? The conclusions in his report that it was your fault are “hearsay”. Further, it’s for the jury to determine whose fault it was based on the evidence. Letting the cop testify about whose fault it was would unduly influence the jury. The cop can testify only about the evidence he found at the scene, for example skid marks, the damage to the cars. He can also generally testify about what the PARTIES said to him, but not about what non-party witnesses said to him. That would be hearsay, too. Those witnesses must be brought into court to tell the jury what they saw and must be subject to cross-examination. The cop can’t tell the jury what they said because then the right of the parties to cross-examine those witnesses would be lost.

Some of these concepts were explored in the recent case of Watch v. Gertsen. In that case, the cop determined, after talking to the participants in the accident, that two motorcyclists who collided into the back of a car were at fault for following too closely. In the personal injury trial, the trial judge let the cop testify about his conclusions in the report. The jury’s verdict aligned with the cop’s conclusions. But the appellate court reversed, finding that it was error to allow the police officer to testify about fault from the accident report. And rightly so. What good is a jury trial if a cop is allowed to say whose fault it was? That’s the job of the jury, not the cop.

The cop of course can issue a ticket to the party he believes is at fault, but even that ticket won’t get into evidence in the personal injury trial unless whoever got the ticket pleads guilty to it. Even if the driver is convicted of the traffic violation, it still won’t get into evidence unless he has pleaded guilty to the charge. Why not? Well, all these rules protect our jury system. Juries are to determine fault, and cops and other law enforcement officers – stay out of it!

Keep safe!
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 & Syracuse NY Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

1-315-253-3293