Central New York Injury Lawyer Blog

Yesterday I blogged about New York personal injury liability for a Park owner's failure to properly maintain trails and hiking areas, and for failing to place appropriate warnings signs. What sparked off that blog entry was a tragic hiker accident in Letchworth State Park in which a 19-year old hiker fell to his death into the gorge.

Now let's discuss common sense safety rules for hikers that can prevent many tragedies on the trail. A hiker is, in the first instance, responsible for his or her own safety. A safe hike begins before the hike. Proper preparation and planning, including making a pack list, which should always include: proper clothing, footwear, appropriate gear, a cell phone, a compass, or a gps navigator, plenty of water, food and a first aid kit.

Learn about the area you are hiking ahead of time. Take recent guidebooks and maps of the area with you. Check weather forecasts before you set out. Do not attempt a hiking excursion that is beyond your physical abilities or health limitations. Let friends or family know where you plan on hiking and when you plan on returning. Bring lots of water on a hot day.

Once you are on the trail, obey all signs. Do not drink water from streams, lakes or ponds without boiling it, filtering it, or using purification tablets. Sign in at all sign-in stations (this will assist in tracking you down if you get lost or hurt). If you get lost and need to spend the night in the woods, build a campfire (this will help keep you safe and warm, but will also serve as a signal for searchers to find you).

Keep an eye on the trail where you are walking - trails are not sidewalks - you really do have to watch them, and not just the scenery, as you walk!

Finally, never hike alone.

Be safe and have a good hike!

Letchworth is one of several upstate New York State parks. It is the deepest gorge anywhere east of the Rockies and is sometimes called "the Grand Canyon of the East". I personally have spent many splendid, sun-drenched days hiking its trails, and driving or bicycling around its "rim" to take in the spectacular view. It is "gorge-ous"!

But unfortunately, it can also be deadly. Case on point: Local news media sources report that a 19-year old hiker died after suffering a 300-foot fall into the gorge at around 9:30 p.m. this Saturday. No other details are available. What makes this tragedy (only 19 years old!!) so, well, tragic, is that it could almost certainly have been avoided.

Although hiking, especially in State Parks, is a healthy, enjoyable good-weather activity, two human failings (or a combination of them) cause almost all injuries or death on the trail: (1) The Park owner's failure to properly maintain the trails and area and to place appropriate warnings signs and (2) hikers' failure to follow common sense safety rules. In today's blog post, I will talk about number (1), and in tomorrow's, number (2).

So let's talk about number 1 (the Park owner's failings). My Central New York personal injury law firm has handled several cases involving State Park hikers' tragic deaths or serious injuries. I won't kid you; these are tough cases. Lots of special defenses are available to the State and to other landowners that a good New York personal injury lawyer has to adroitly attempt to maneuver around. In general, though, the park owner or landowner (including the State of New York) can be held liable for injuries or death if it failed to act as a "reasonable person" in maintaining its park or land in a "reasonably safe condition" in view of all the circumstances, including the likelihood of injury or death to users of the property.

The owner can also be held liable for failing to warn against dangers that hikers or other users of the land would not likely discover or realize, including dangerous terrains, falling rocks, sudden flooding, loose footing, or sudden drop offs or cliffs. Where the danger is not obvious, the landowner's (or park owner's) burden is even greater. For example, even if the park owner (or other landowner) puts up a sign informing hikers not to pass beyond a certain point, and hikers ignore the sign, the owner can nevertheless be held liable where a particular danger was known by the owner but not stated in the sign (such as the danger of landslides, falling rocks, sudden flooding, or of sudden drop offs). This is especially true where the owner knows that hikers regularly disregard the sign and go beyond it. So, for example, a sign that says "danger - do not go beyond this point", where the danger beyond that point is known by the owner to be falling rocks, or a drop off, or sudden flooding, will not generally suffice, especially where the owner knew that hikers or others often went beyond that point despite the sign.

In sum, if your loved one dies, or if you are injured, while hiking due to some danger on or off the trail, you won't know whether you have a New York personal injury case unless you have the case reviewed, and investigated, by a competent New York personal injury lawyer.

Stay tuned. Tomorrow I will discuss how hikers can avoid injury or death on the trail.

Fourth of July, Independence Day, or whatever you want to call it. It's here! And in New York, where private fireworks are illegal, many citizens are pitted against the law. I personally spend the evening of the Third on Otisco Lake, which is illuminated like a roman candle by private fireworks displays, though I don't buy or handle fireworks myself (sounds kinda corny, but I like to obey the law!)

If you ARE going to "do" fireworks, here some fireworks safety tips from your Central New York injury lawyer:

Use fireworks outdoors only.

Keep water handy (a hose or bucket).

Don't try to alter fireworks or combine them. Use them as they were meant to be used.

Never try to relight a "dud" firework. Wait a half an hour, and then put it under water.

Keep a safe distance from the "shooter".

If you are the shooter, wear safety glasses.

Don't drink if you are the shooter.

Be at least 13 years old if you are the shooter.

Hand-held sparklers are a common cause of injury, especially among toddlers, who may trip and fall on a sparkler and burn themselves, including in the eye. A child who falls on his sparkler has fallen on a welding torch!

Never let young children handle fireworks.

Most Fourth of July fires are caused by throwing fireworks from moving vehicles. Don't!

Do not use fireworks while under the influence of drugs or alcohol.

No getting around it; Americans love their fireworks for the Fourth, legal or not. But if you are going to engage in this (illicit) joy, follow the above safety tips to avoid accidental fires, explosion injuries, burn injuries, and other personal injury.

Let's clear this up from the get-go: The owner of the property where you slipped or tripped and fell is NOT AUTOMATICALLY liable for your fall and resulting injuries. As the plaintiff in a New York premises liability lawsuit, you have the burden of proving that the owner of the property maintained the property in an UNREASONABLY UNSAFE CONDITION.

Ok, what does THAT mean? Several things: First, you have to show that the owner could have done something to avoid your getting injured on his property. And the owner had to have time to do it. Let's take a supermarket, for example. Sure, the supermarket makes a lot of money. But it is not God. It cannot predict that another shopper is going to drop a jar of apple sauce in the "fruits and vegetable" aisle 2 minutes before you happen to stroll down looking for a can of kidney beans. So when you slip and fall on the apple sauce, no jury on God's earth is going to hold the supermarket liable. In fact, they might find it is your entire fault for not watching where you are going.

On the other hand, if you can somehow prove that the smashed apple-sauce jar was lying there for an hour, a jury is likely to be on your side. With all that money the supermarket is making, it sure ought to have a few employees meandering up and down those aisles every half-an-hour or so looking for customer spills.

Same goes for parking lots. If a sudden freeze in temperatures causes black ice to form, how can you expect them to have time to (1) notice the slippery condition and (2) salt the parking lot? That takes some time, doesn't it? That's why, if the ice was very recently formed, you don't. have a prayerr at trial. On the other hand, if the black ice was there for an hour or so during business hours, you've got a chance at trial. Why didn't they get out there and salt during that hour?! It's really that simple.

One more thing: If the owner (or its employees) actually CREATED the hazard you tripped or slipped on, you will have an easier time in court. That's because if they created the danger they obviously don't need time to notice it. They should have noticed it as soon as they created it! Supermarket example: If they mopped the floors with dirty, greasy water, leaving a film of grease on the floor that caused you to slip and fall, the supermarket is liable. It was negligence from the get-go. They should have used clean, soapy water, and since they created the hazard, they should have noticed it right away.

Bottom line: You don't necessarily have a good slip-and-fall case or trip-and-fall case just because you slipped or tripped and fell on somebody's property. You still have to show the property owner was somehow negligent.

Sometime ago I blogged about how the omnipresence of cell phones with cameras has been a game-changer for many Central New York and Syracuse accident victims. The evidence of the at-fault person's or corporation's negligence can be "snapped" right at the scene with the cell phone camera. This is important because often the evidence disappears within hours, for example, where you slip and fall on an unplowed, unsalted walkway in a Central New York winter.

Another game-changer for Syracuse and Central New York personal injury cases (and for such cases everywhere) is the omnipresence of surveillance videos. Now almost all major stores, including supermarkets, have surveillance cameras filming in almost every nook and cranny.

How does this help New York personal injury attorneys prove liability in personal injury lawsuits? Here's an example. A woman slips and falls in the produce section of a major Syracuse supermarket. Turns out she slipped on a piece of tomato.

Under New York slip-and-fall law, the store is only liable to the injured customer if the tomato had been there for a significant period of time so that the store employees should have noticed it on their regular inspections of the produce department. This is because a store cannot be held liable for the carelessness of a customer dropping a tomato just a minute before the next customer slipped and fell on it. The store can normally be liable only if it noticed the tomato on the floor and did nothing about it, or if it failed to inspect the produce department on a regular basis to look for fallen fruit and vegetables. In other words, New York slip-and-fall law gives the store a "grace period" to find and clean dangerous spills, and vegetable or fruit droppings, before the store can be held legally responsible for the slip-and-fall accident.

In the old days, this was often hard to prove ---- how do you prove how long a piece of tomato you slipped on was on the floor?

Enter the age of surveillance videos. Now when an injured client, say a Syracuse client, calls to report she has been seriously injured in a slip-and-fall in a Syracuse grocery store, the Syracuse slip-and-fall lawyer writes the store immediately and demands that it preserve all surveillance videos of the produce department for the day in question. (And by the way, the store had better comply with the request, or a judge at the eventual trial might sanction the store, for example, by instructing the jury that it can infer the store had something to hide when it destroyed the videos). When the Syracuse personal injury lawyer eventually views the preserved surveillance video, it doesn't show when the tomato fell to the floor, but it clearly shows that for the 3 hours before the accident, no store employees inspected the produce area for fallen fruit and vegetables. It also clearly shows that no customers had reached into the tomato basket for an hour and a half before the slip-and-fall. Perfect proof? No, but pretty darn good. It goes a long way toward proving that the tomato had to have been on the floor for at least an hour and a half --- well beyond the "grace period" --- and that the store employees were negligent in failing to inspect the area for fallen fruit and vegetables.

So as a dedicated Syracuse New York slip-and-fall lawyer, I want to personally thank all our local stores for installing surveillance cameras. Sure, they did it to catch us customers stealing, but they unwittingly also sometimes catch themselves failing to protect us from avoidable accidents.

Imagine you are just kicking back on your porch enjoying this great spring weather in Syracuse, New York, hanging with some buddies, maybe having a beer when ---- BANG --- you wake up in pain, lying on the ground below.

This is what happened Saturday at an apartment on the corner of Lynwood Avenue and James Street in Syracuse. The porch just collapsed with no warning, dropping the three people sitting on it to the ground below.

Central New York porch, balcony or deck collapse lawsuits are not as uncommon as you may think. The Auburn New York personal injury law office of Michaels & Smolak has handled several such cases.

While porches, balconies and decks are great places to hang out and enjoy the good weather, if they are not properly maintained and regularly inspected, they can, and do, collapse, causing serious injury, fractured bones, paralysis or even death. Occasionally, even new decks, balconies or porches collapse if they are designed or built incorrectly.

The most common causes of porch, deck and balcony collapses are: rotten wood that has not been replaced, rusty nails or other hardware failures, failure to regularly inspect for rot, deterioration or signs of sinking, design errors, building errors, building code violations and excessive weight.

Homeowners and landlords who have decks, porches or balconies on their homes can be held liable for failing to fix or inspect rotting wood, for failing to notice signs of rot or deterioration, and for failing to properly maintain the structures. A contractor or builder who negligently designs or builds a deck, balcony or porch can also be held liable if these structures collapse due to poor design or bad building practices.

A competent Syracuse collapsing balcony lawyer will hire expert carpenters and builders to examine the collapsed structures to determine the cause of the collapse. Since the injuries in falling balcony, deck and porch cases tend to be quite serious, the investigation needs to be equally serious.

Those responsible for collapsing balconies, decks and porches should be sued so that the innocent victims of the collapse can recover fair compensation for the injuries caused by the owner's or builder's negligence. Homeowner's, landlord's or contractor's liability insurance generally cover these injuries.

Today's Syracuse Post Standard reports on a seven-million dollar investment by the owners of the Darien Lake Resort to expand the amusement park this spring, adding new water-based rides and other attractions, and splitting Darien Lake into two much larger amusement parks. The Florida-based corporate owner of Darien Lake christened the new expanded water park "Splash Town" and the amusement ride area "Darien Lake Theme Park". The article reports that Central New York is one of Darien Lake's top markets.

But are amusement parks like Darien Lake safe? I read in the paper this week that an Indianapolis boy is fighting for his life after an amusement ride accident on a "tea cup" ride at an amusement park. The state authorities later determined that the ride had not been inspected in more than a year. At the same park, a 6-year old boy was seriously injured on an amusement ride only a week before.

The U.S. Consumer Product Safety Commission keeps statistics on amusement ride accidents. Between 1987 and 2003, a period of 16 years, only 12 people were killed on amusement park rides. That's not bad, but in 2002 alone, over 3,000 injuries were reported from "mobile" amusement rides (the kind that are assembled at fairs) in the United States.

Amusement park ride injuries are usually caused by mechanical failure, failure to regularly inspect and maintain the rides, missing safety equipment, non-functioning lap bars or safety restraints, negligent operation, improper assembly or unsafe design of the ride, or by the operator of the ride stopping or starting the ride too abruptly. If an amusement ride operator or owner causes injury or death to a patron through any of these negligent acts, the victim or the victim's family has a right to bring an amusement ride lawsuit to recover medical expenses, lost wages, pain and suffering compensation and for other damages.

Let's face it; a lot of amusement ride injuries are also caused by user negligence. Some people just don't follow the instructions (e.g. height requirements for a ride, stay seated, don't exist till you are told to, keeping hands and feet in the ride, strap on the safety strap). Or they ignore their own health limitations. For example, if you have neck or spine problems, you should obviously avoid rides that whip your head around.

Bottom line: Amusement park owners and their employees must exercise extreme caution so as to provide a safe ride, and so too must amusement park guests.

You are out for a stroll on a nice, but windy, spring day and suddenly, as you walk under a tree, a branch dislodges and falls on you, seriously injuring you. Is anyone liable for your injuries? Can you bring a New York personal injury lawsuit for injuries caused by a falling tree branch? After all, wasn't this a "natural" occurrence? No one is liable for that, right?!

The answer is (as is so often the case in New York personal injury law) "it depends". The owner of the property, or whoever is in control of the property, where the tree is growing MAY be liable for the tree branch accident if they "knew or should have known" that the tree was dead, rotten, or in poor condition. If an owner, or someone who controls the property, fails to remove a decaying, rotting or dead tree, or branches, and the tree or a branch falls and injures someone, or falls on a roadway and causes a car accident, he can be held liable.

Here's a recent example of a falling-tree branch injury that could, or could not, become a valid case, depending on the circumstances: A Brooklyn man was recently killed in Central Park when he was struck by a falling tree branch that snapped off under the weight of wet snow. As reported in the New York Times, the tree branch weighed over 100 pounds and struck him directly on the head. Could the City be held liable for this tragedy? It looks like a tough case. The New York Times reports that branches were falling down all across the City because of a heavy build-up of wet snow. Maybe even healthy branches were giving way under the weight of the snow. If the tree showed no obvious signs of decay, rot or death, then the City is most likely not liable.

Tree branches falling on people, roadways or cars is not as uncommon as you might think, and when this happens, it can cause catastrophic injuries such as cracked craniums, brain damage, or even death, as it did in this Central Park case.

Moral of the story: If you own trees near sidewalks or roadways, check them from time to time for rot, decay or death. Have a tree specialist examine them, too. Remove any decaying or rotten parts of the tree, and if the tree is dead or dying, get rid of the whole thing. You might save someone's life, and you might prevent a lawsuit. Also, if you or a loved one is injured by a falling tree or tree branch, call a New York personal injury lawyer for advice.

Today a sweet elderly lady met with me in Geneva, New York, with what she described as a "trip and fall" case. I listened sympathetically to her story of how she was hurt, and then told her could not take her case. Why?

Let's start with what she tripped and fell on. She was on her way out of a local supermarket with her adult son when she suddenly tipped on . . . well, she really did not know what it was. Her son, who had been with her, said that when he looked down after her fall, there was a floor mat that was "flipped up at the edge". He deduced that his mother must have tripped over the flipped up edge of the mat. The store should have been more careful with that mat, right?

There are two problems with that:

(1) It is at least as likely that our lady's tripping action caused the carpet edge to flip up rather than the other way around. Since no one saw the rug BEFORE she began to trip, we cannot know whether it was already flipped up or whether our lady's tripping action caused it to flip up.

(2) Even assuming the carpet edge had been "flipped up" and that this made her trip, we don't know how or when the carpet became "flipped up". Another customer might have accidently flipped up the carpet just moments before. The thoughtless customer might not have bothered straightening out the carpet. The supermarket can only be held liable if it had "notice" (knew or should have known) that the carpet was flipped up for a long enough time before the accident to remedy or fix it. Otherwise, the store was not "negligent" in causing the accident.

Fortunately, this lady's injuries were not very significant. I had a feeling she was going to be as good as new within a few months.

Even though I had to reject this nice lady's case, she seemed grateful for the time I spent with her explaining why she did not have a case. Before she came in to see me, she had already called a few lawyers who, after hearing her story, had simply told her they were "too busy" to take the case. Although many lawyers make it a practice to turn down cases in this less-than-honest way, I am proud that at Michaels & Smolak we always give people a REAL reason why we are rejecting their case. And they appreciate it. Sometimes they even send friends or family to us with their cases. Being "real" with people is not only the right thing to do, it also reaps its rewards.

Two days ago the Syracuse Post Standard reported that the New York State Police had arrested a brother and sister, who are only 22 and 20 years old, for allegedly endangering the welfare of a child in Boonville, New York, by having an underage drinking party at their home on New Year's Eve where the minor was served alcohol.

Here's my blog-post question of the day: What if the under-aged drinker had injured someone because of his intoxicated state? For example, what if he had driven away from the party only to smash his car into an oncoming vehicle? Or what if, emboldened by his alcohol-fueled testosterone levels, he assaulted someone and caused serious injury? Who would be liable for those injuries? Can both the 22 year-old and the 20 year-old kids who hosted this party be held liable in a New York under-aged drinking lawsuit?

Yes they can! Obviously, the under-aged drunk driver or assailant would be liable, but so too would the people who held the underage drinking party, even if they themselves are minors. These rules are all found in New York's General Obligations Law 11-100. Under this law, if someone is injured by an intoxicated minor, the injured victim has a right to bring a New York lawsuit against the person who caused or contributed to the intoxication of the minor by unlawfully selling to, or assisting in the procuring of liquor for, the minor. In order to be held liable, the procurer of the alcohol must have known, or had reasonable cause to believe, that the person he was providing the alcoholic drink to was under the age of 21. Under the law, even an under-aged person who provides alcohol to another under-aged person can be held liable to the victims.

Moral of the story? Never serve alcohol to a minor, even if you yourself are a minor. You can be held liable for any injuries the minor you serve alcohol to causes. Giving alcohol to a minor is like winding up a walking liability-causing machine that you can't control!

Central New York accident lawyers and victims, and such lawyers and victims everywhere, owe a big debt to Philippe Kahn. Who's he, you ask? Kahn invented, on a whim, the camera phone about 13 years ago (while he was waiting for his wife to deliver a baby -- read full story in USAToday). Yes, that ubiquitous, ever-handy device that can snap a picture anywhere, anytime, was invented only 13 years ago!

Why do accident victims need to thank Kahn? Because they can just reach into their pocket, or pocketbook, pull out Kahn's invention, point, click and --- voila! - evidence preserved!

Two of our recent cases demonstrate what a game-changer the cell phone camera is for personal injury cases.

Case #1: Wife slips and falls and suffers a serious back injury on snow-covered steps outside a commercial office building. The husband, after attending to his injured wife, has the wherewithal to pull his cell phone out of his pocket and snap some pictures of the icy, snow-covered steps. Fast forward several months --- case settles for a very significant amount of compensation. Why? Because we could prove how bad those steps were with the photos. Without the photos, the snow would have been gone by the time a lawyer or investigator got to the scene.

Case #2: Heavy-set man was walking down wooden steps of a New York State police trailer. The wooden steps snap underneath his foot, causing him to fall and sustain multiple tears in the soft tissue around his knee. Before dragging himself to his car, he has the wherewithal to snap photos of the broken steps with his cell phone. They show that a "stringer" (a support device) was missing from the middle of the steps, which is what caused them to snap under his weight. Now the evidence is preserved for his personal injury case.

These are just two examples of how cell phone cameras have helped our New York personal injury victims preserve evidence in their cases. The same kind of photo-snapping is happening now in all kinds of accident cases, including auto accidents (shoot up that collision scene before the tow trucks arrive!), parking lot falls (snap that pothole before they fill it!), construction accidents (photograph that collapsed scaffold before they remove it!) and defective products cases, just to name a few.

I am sure Philippe Kahn did not have personal injury cases in mind when he invented the camera phone. But Henry Ford didn't have space travel in mind when he invented the combustible engine, either. I tip my hat to you, Philippe Kahn (and, while I'm at it --- to Henry Ford, too).

The Associated Press and the Daily News both reported last week that an injured restaurant patron, Raina Kumra, filed a New York personal injury lawsuit against the White Slab Palace restaurant in lower Manhattan after a stuffed moose head fell from its wall onto her head. The restaurant first opened its doors for business only last February. Her lawsuit claims damages consisting of a concussion, loss of cognitive skills, chronic neck pain, dizzy spells, fatigue and anxiety. The moose head weighed 150 pounds and sported 3-foot-wide antlers.

When this Central New York personal injury lawyer read this story, my first thought was in Latin: "Res ipsa loquitur". No, I don't speak Latin. This is a legal doctrine, taught to all first year law students, which allows an injured plaintiff to use circumstantial evidence to prove negligence. In Latin, the phrase means "the thing speaks for itself." In order to invoke the doctrine, the injured plaintiff has to show that the injury-producing event normally would not happen in the absence of some negligence. (Here, does a moose head just fall from a wall unless someone failed to secure it properly?). The injured person also has to show that the object that caused the injury (here, a moose head) was in the exclusive control of the defendant. The plaintiff must sufficiently eliminate other possible causes, including the conduct of the plaintiff herself or of other parties who might have tampered with the object.

The theory is often used in falling object cases. We at Michaels & Smolak have brought several claims based on the theory of "resi ipsa loquitur", mostly when merchandise falls from a shelf onto a shopper at big-box stores such as Wal-Mart, but also in our New York medical malpractice lawsuits where a doctor leaves a foreign object, such as a surgical sponge, inside the patient.

When I first read of this falling moose-head case, I thought it was strong one. How does a moose head suddenly become dislodged from a wall at a restaurant that has been open less than a year unless the owner somehow failed to secure it properly? But since I first read the story, a witness has come forward who says that he saw another patron tugging on a balloon tied to the moose head's antlers in the moments before it fell. If this is so, it puts a dent in the res ipsa loquitur theory; perhaps the balloon-tugging patron caused it to become dislodged rather than the owner's failure to secure it. Still, it would seem a 150-pound moose head should be sufficiently secured so as to resist a little tugging.

Will Kumra prevail? Stay tuned. The New York press seems to have gotten a kick out of this story, so we will surely hear more . . ..

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"!

Recently, in Ontario County, in the Finger Lakes region of New York State, a 14-year old student of a public middle school didn't go home at the end of the school day. Instead he ended up in a hospital getting plates and screws installed to fix a severely broken elbow. How did that happen? A fellow 14-year old student, who was just "goofing around", tripped him in the school hallway when they were changing classes between periods. This was not the first time this student had injured other students. He apparently had a history of rough play.

The parents might ask a school accident lawyer the following questions (I will answer them further down): (1) can the injured child (and his parents) sue the boy's parents? After all, they failed to properly raise this kid to be a civilized human being who can live safely with others. (2) Can they sue the tripping kid? (3) Can they sue the school?

Here are the answers, in order:

(1) No, they can't sue the parents. Generally parents are not liable for the negligence or careless actions or even the assaults of their children, at least when the parents are not present to control them.

(2) Yes, the tripping victim and his parents can sue the child that tripped him. But there is a problem: a 14-year old child is unlikely to have any money, so why bother suing him? Answer: There may be insurance coverage. There is one place in particular you can look to find it If the child's parents own their own home, they probably have homeowner's insurance, which usually provides insurance for the negligent actions of all resident relatives of the home, including children. In my experience, such a policy often has $100,000 in coverage. If the parents rent and don't own their home, it is unlikely they will have insurance to cover the incident, but it is still possible. Some renters have "renter's insurance", which sometimes has coverage similar to homeowner's insurance.

(3) Yes, they can sue the school (actually, the "school district") on a legal theory called "negligent supervision". When you drop your child off at school, the school legally assumes the supervisory duties of "parent". The arguments would be that: (1) The school should have placed a monitor in the hallway (if there had been such a monitor, the kid would probably not have dared to trip) and (2) the school should have been especially vigilant of this child who had a tendency to hurt other children.

New York law generally provides a legal remedy for victims of the negligence or wrongdoing of others. A competent personal injury lawyer knows who to bring the claim against, what "legal theories" to sue under, and also where to find insurance coverage. If your child is injured at school, consider consulting with an experienced personal injury lawyer about your possible legal remedies.

The older they are, the harder they fall. Or so it seems. With winter coming, property owners, as well as seniors and those who care for them, have to be extra careful to avoid slip-and-falls on ice or snow in all of central New York, including Syracuse, Auburn, Ithaca, Geneva and especially the very snowy Oswega areas. Why are slip-and-falls so dangerous for the elderly?

Seniors fall more often, suffer more severe injuries when they do fall, and recover more slowly. Here are some statistics gleaned from The Center for Disease Control and Prevention website More than one third of those over 65 fall each year in the United States. Among older adults, falls are the leading cause of injury deaths. Falls are also the most common cause of nonfatal hospital admissions for trauma. About 16,000 people over age 65 die yearly from falls. And fall-related deaths for the elderly are rising as the population ages.

In addition to the greater severity of the fractures (often the hip) which seniors face from falls, and the slower recovery time, seniors are exposed to greater risks of complications such as infections and blood clotting, skin ulcers and sores.

Every winter at Michaels & Smolak we experience a sharp intake of slip-and-fall cases against negligent property owners who refuse to spend the time or money necessary to regularly clear their walkways and parking lots of snow and ice. And every year it seems a higher percentage of the victims are elderly.

We believe these numbers can be lowered. Property owners, especially owners of commercial properties, must keep in mind that our population is aging. Our baby boomers are now becoming seniors. Older folks are more likely to slip and fall, and are more likely to suffer severe injuries when they do. More caution than ever should be placed on clearing walkways and parking lots of snow and ice.