Recently in Premises Liability Category

September 2, 2013

Drunken Student's Dash Into The Gorge Will Go To Trial

gorge in ithaca.jpgI came across an article recently in the New York Law Journal titled "Drunken Run Could Leave Cornell Liable for Fatal Fall". It's about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named "Fall Creek Gorge trail".)

Cornell moved for summary judgment (to have the case dismissed) based in part on New York's General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.

Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not "hiking". The judge relied on a definition of "hiking" in the Department of Environmental Conservation's regulations, which says hiking is "walking through trees for pleasure or exercise". Here the kid was not "walking for pleasure", the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.

I am sure there will be an appeal, and who knows where the Appellate Division will land on this issue. It seems incongruous, and unfair, that the law would bar a hiker's claims but not those of a nocturnal barrier-hurdling drunk.

The judge also rejected defense arguments that Cornell had no duty to warn of the danger of falling into the gorge because it was "open and obvious". That's because the photos in evidence showed vegetation that appeared to obscure the lip of the gorge and, remember, it was nighttime.

This is the kind of case that makes folks on the street shake their heads and exclaim, "you can sue for anything in this country!". But keep in mind that this unfortunate kids parents' are not saying, "our kid was blameless". Rather they are saying, "what about you, Cornell"? You knew of five prior falls into your gorge involving alcohol. You knew your students liked to "let their hair down" on the weekends to escape your ivy-league pressure cooker. Given all you knew, shouldn't you have replaced that flimsy split-rail barrier with a real fence?

Will a jury buy the argument? 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 and Syracuse Personal Injury Lawyers
Michaels & Smolak, P.C.

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


August 17, 2013

"Beam Me Up Scotty" -- Central NY Injury Lawyer Discusses Courtrooms of the Future

beam me up.jpgNext Tuesday I'll be jumping on a plane to Central America. But I won't be on vacation. I'll be representing my Guatemalan clients as they get deposed, remotely, by video, from Syracuse, NY. There'll be an interpreter with us.

How did I end up in Guatemala on a case? That story made the front page of the New York Law Journal and the Syracuse Post Standard. I blogged about that here.

Technology has changed every aspect of law practice. A few decades ago, what is about to transpire would have been impossible. Your Central NY injury lawyer will be sitting next to his clients in Guatemala City while insurance defense lawyers in Syracuse New York ask them questions by video. We will see those lawyers on the screen, and they will see my clients. They will be face to face. It's kind of like Star Trek. "Beam me up, Scotty"! The video of my clients will later be presented to the jury.

I wonder if the "courthouse of the future" will be completely digital and remote. A "virtual" courthouse. Instead of appearing physically in the Courtroom, witnesses will pop up on a large courtroom screen from whatever city or town they reside in. Lawyers, too. Perhaps brick-and-mortar "courthouses" will be totally replaced by virtual ones.

The sticking point for us lawyers is that we believe, perhaps incorrectly, that a witness' credibility is easier to judge live. Live testimony allows for better viewing of moist foreheads, blinks, twitches, stray glances, and body shifting. Those witnesses could be just nervous, or lying.

But with the pace of technological advances, who can doubt that, within the next 100 years, we will be able to project a 3D-high-definition image of a witness that almost exactly duplicates the live person? Then what? Will I be able to try my personal injury lawsuits from my living room? How about from a vacation home in Fort Lauderdale?

Sound incredible? Too sci-fi for you? Well what do you think attorney Abraham Lincoln would have said if someone had told him that lawyers in the future would be taking live depositions from 1,000 miles away (Syracuse to Guatemala) through something called a "screen" . . . ??!!

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 Toll Free 1-866-698-8169


March 28, 2013

It's a Small Case After All.

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 Toll Free 1-866-698-8169


February 10, 2013

NY Health Clubs Must Have But Need Not Use AED's, New York's Highest Court Rules

defibrilator.jpgLast year I blogged about a case (Miglino v. Bally Total Fitness) where one of New York's intermediate appellate courts (the Second Department) held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If not, they can be held liable to the unattended victim.

In that case, the Court was interpreting a 2005 Statute, General Business Law 627-a, whose literal reading required only that AED's be "on-site" at New York health clubs, and did not specifically mandate that Club employees use them. Nevertheless, the intermediate appellate Court read between the lines, holding that it was "illogical to conclude that no such duty exists".

Now the highest Court in the State, the New York Court of Appeals, has reversed that Court's Decision. The majority disagreed that the law creates an affirmative duty for clubs to use their defibrillators.

Often courts go out of their way to prevent what they perceive as an unwarranted spread of liability. That's clearly what the Court did here.

In a partial dissent, Chief Judge Jonathan Lippman said "it should go without saying that the presence of an AED will be of no benefit whatsoever to a person in cardiac arrest unless, of course, it is actually used". He felt that the Statute, as interpreted by the majority, was "essentially purposeless" in that it required health clubs to purchase AEDs and train employees to use them but does not require the devices to be used.

Judge Lippman's reasoning makes sense. And now the Statute, as interpreted by the Majority, makes no sense. It's a toothless paper tiger. Might as well wipe it off the books.

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 Toll Free 1-866-698-8169

November 16, 2012

Central NY Trip-And-Fall Lawyer Takes Advantage Of Poorly Drafted Village Law

Thumbnail image for Thumbnail image for sidewalk.jpgLife is full of surprises. I got one yesterday.

A client suffered a very bad injury from tripping on a sidewalk defect in a village near Geneva, New York (I won't name names!). Normally, trip-and-fall on sidewalk cases are nearly impossible to win because of a special law that protects villages (as well as cities, towns, etc.). That law -- General Municipal Law section 50-e(4) -- says that, under most circumstances, you can't sue a village, town, city, etc., for injuries caused by defects in a "sidewalk, crosswalk, street, highway, bridge or culvert" as long as the village (or town, city, etc.), has enacted a "prior written notice" local law. Such a local law must in turn say, "hey, folks, you can't sue us for injuries caused by defects on our sidewalks, crosswalks, streets, highways, bridges or culverts unless, before you were injured, we already had written notice of the defect."

This is an extremely unfair law. No one, at least in upstate New York, ever writes to a village or town or city to tell them, "hey, you have a defect in your sidewalk at such-and-such a location and you'd better fix it before someone gets hurt". If people complain at all about a defect or hazard they see, they are more likely just to call and complain. But that's not enough under New York Law. It has to be in writing to be valid.

Getting back to my client, because she had a pretty serious injury, I wanted to make sure the village actually had a prior written notice law on the books. In my experience, 99% of villages, towns and cities in New York do, so I would have been very surprised if they did not.

Sure enough, they did. The village attorney sent me the village's "prior written notice law". But upon careful review of it, I noticed, to my surprise, that it required prior written notice only for defects in "culverts, bridges, streets and highways" AND NOT FOR SIDEWALKS.

The author of that village law clearly screwed up. Whoever that was, I would like to thank him or her for the gift. Now we do not need to show that the village had prior written notice of the sidewalk defect that injured my client. All we have to show is that the village negligently maintained the sidewalk, a far easier task.

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 premises liability Lawyers
Michaels & Smolak, P.C.

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


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 Toll Free 1-866-698-8169


August 30, 2012

"New York Times Slip-and-Fall Reporting Sucks", Says Central NY Injury Lawyer

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for banana peel.jpgThe New York Times just published a story titled, "A Fatal Slip on the Stairs Cuts Short a Life at 29". Deaths in slip-and-fall cases are rare. Especially in someone that young. Usually you get fractured wrists or knees. So, an article with a title like that piqued the interest of this Central NY personal injury lawyer like a hurricane from Alaska would a weatherman's.

So I read on. The article talked about how an unfortunate young lady was found dead, covered in blood, on a landing in a Manhattan building where she was staying with a friend. The police had initially suspected foul play, but later came to the conclusion that she was merely the victim of a slip-and-fall accident. She had been wearing high heels, was carrying a heavy bag and "the stairs were slippery". The story goes on to talk about what an amazing person this was, how she was having some trouble in her marriage, and how she had just had a really tough week. A nice human interest story for sure, but what I am interested in is, "why were the stairs slippery"? So I kept waiting to get to that part.

And I never did. The article did not say what caused the steps to be slippery. It appears this was an indoor stairway. If the stairs were wet, I would want to know whether (1) management had just mopped them and left them that way with no warning?, or (2) there was a leak in the roof above, or (3) a tenant or someone else had just spilled a soda or something there. All this would be important for me if I were representing the estate of this young lady in a slip-and-fall case in New York against the landlord. In scenarios (1) and (2), the landlord could probably be held liable for negligent maintenance, but in scenario number (3) probably not (unless the spill had been there for a significant period of time, enough time for the landlord's staff to notice it and clean it up).

So, hey, New York Times, keep us New York slip-and-fall lawyers in mind the next time you write such an article, ok? Geez . . ..

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 Slip-and-Fall lawyers
Michaels & Smolak, P.C.

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

November 22, 2011

Thanksgiving and Black Friday Accidents

turkey.jpgThanksgiving is this Central New York injury lawyer's favorite holiday. Why? Because I love good food, and good company, but don't like the complicated and expensive business of gift giving.

Although Thanksgiving is a holiday, unfortunately, it is not a holiday from accidents. In fact, there are more accidents on Thanksgiving than on other days. Primarily, car accidents. People drink too much, then they drive. Crash. Don't do it!

Tis the season for slip-and-fall and trip-and-fall accidents, too. Black Friday means packed stores, with shoppers tripping over objects left in aisles, or slipping on liquid spills.

And I already blogged about black Friday trample accidents here:

Black Friday Shopper Trampled -- Central NY Personal Injury Attorney Explains Liability

Hey, enjoy the bird and pie, and your loved ones and friends, but don't drink and drive, and be careful in those packed stores, ok?

Keep safe!

Mike Bersani

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

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

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

November 13, 2011

Central NY Injury Lawyer Discusses New York Statute Of Limitations In Child Sexual Abuse Cases

Thumbnail image for sad teen silouette.jpgYesterday I blogged about whether a "governmental immunity " or "sovereign immunity" defense would bar a claim by child sex abuse victims against the State University of New York ("SUNY") if something like what happened at Penn State (State university football coach sexually abuses children on campus) happened in New York at SUNY Geneseo, or SUNY Albany, or SUNY Cortland, etc. I concluded that those defenses generally would not be applicable in New York. But unfortunately, unlike in Pennsylvania, another defense would likely prevail in New York: The statute of limitations.

Pennsylvania, unlike New York, has extended the statute of limitations for child sexual abuse victims until they reach age 30. From news reports, it seems that all the Penn State child sexual abuse victims are still under 30 years old. So they can, and probably will, be able to sue Penn State for compensation, though on the very same facts, they would not be able to do so in New York

In New York, there is no specific statute of limitations for civil cases based on child sexual abuse claims. The child victim must rely instead on traditional statutes of limitations for assault (by the perpetrator) and negligence (by the employer of the perpetrator or owner of the building where it happened). In New York, the statute of limitations for assault is one year, and for negligence it is three years.

But a child victim's statute of limitations is "tolled" (doesn't start to run) until he or she is 18 years old. That means that the statute of limitations against the perpetrator of the sexual abuse generally expires on the victim's 19th birthday, and against the employer/property owner, on the victim's 21st birthday.

But there are other --- and longer --- statutes of limitations that might apply. Under CPLR 213-b(2), if the sexual abuser is convicted of a criminal offense, the victim gets 10 years to sue him starting from the date of the crime. But this statute of limitations applies only to a lawsuit against the rapist/abuser who was convicted of the crime, not a lawsuit against his employer or others who may have negligently allowed the rape/abuse to occur. Thus, in a Penn State-like situation, the sexually abused child could not use this statute of limitations to extend his time to sue the State University.

What about CPLR 215(8)? That Statute gives the child victim of sexual assault in New York an additional five-year window to sue the perpetrator from the date the criminal action against the perpetrator terminates. But can a child sex abuse victim use this statute to extend his statute of limitations for suing not only the perpetrator, but also the negligent employer or premises owner or other culpable people who are not defendants in the criminal case? The courts in New York are divided on this issue, so this is far from a sure bet.

The bottom line is that most victims of child abuse in New York would probably be barred from suing SUNY (i.e., State Universities like Penn State) unless they did so before they turned 21. This is extremely unfair, because, as any psychologist will tell you, and as experience confirms, most victims of childhood sexual assault don't come to terms with what happened to them, or consider going to the police about it or making a claim for compensation, until they are closer to thirty years old. From what I have read, the victims of child sexual abuse at Penn State are now all over 21 years old, but younger than 30. Thus, their claims would likely be barred in New York, but not in Pennsylvania.

Why doesn't New York have a more fair law, like Pennsylvania's, that protects the rights of victims of child sexual abuse? Glad you asked. In 2009, the New York State Legislature considered a law that would have liberalized the statutes of limitations for child sex abuse cases. The "Child Victims Act" would have, among other things, extended the statute of limitations for filing civil suits for child sexual abuse to 10 years after a victim turns 18 (i.e., to age 28). But a very strong Catholic Church lobby defeated the bill.

There are some "loopholes" New York plaintiffs' lawyers might try to latch onto to avoid New York's harsh statute of limitations for child sexual abuse claims, such as "equitable estoppel". But those are very difficult arguments to make. For example, with an "equitable estoppel" claim, the once-child, now adult, victim must show that a defendant such as Penn State did more than merely cover up a crime; he must show that the defendant engaged in fraud, deception or misrepresentations that induced him to refrain from filing a timely action. This is almost never the case --- rather, usually the victim's own shame induced him to refrain from filing a timely action.

Maybe the Penn State drama will induce New York law makers to again attempt reforming New York's antiquated child sexual abuse law. Let's hope so.

Keep safe!

Mike Bersani

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

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

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

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 Toll Free 1-866-698-8169

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 Toll Free 1-866-698-8169

July 19, 2011

Surveillance Camera Saves Another Central New York Supermarket Slip And Fall Case.

Thumbnail image for Thumbnail image for Thumbnail image for banana peel.jpgI have already blogged about how surveillance cameras have made slam dunk cases out of slam dunk losers. Here's another example. Just this week I took in a doubtful slip-and-fall case. The plaintiff slipped and fell on some liquid of unknown origin in the produce section of a local supermarket. In the pre-surveillance-camera era, this case would have been a loser. Why? Because you have to show either that the supermarket created the spill, or knew about it and did nothing to fix it, or failed to notice it when it should have noticed it. And how do you prove that when it is just as likely that an inconsiderate shopper made the mess and did not report it a minute before the slip and fall? In the pre-surveillance camera era, I would have turned this case down.

But I did not turn it down, and for one reason: surveillance cameras. I knew there was likely to be a surveillance video that would tell the story of what happened. So I wrote to the supermarket, told them I was representing the slip-and-fall victim, and demanded that they preserve the video subject to legal sanctions if they did not,

Today I received a phone call from a supermarket insurance adjuster who informed me that the video shows a customer spilling a drink 15 minutes before the slip-and-fall, and then shows a supermarket floor inspector walk right past the spill without seeing it, and then shows my client turning a corner and slipping on the spill. It is a slam dunk because the supermarket employee was clearly negligent in performing his floor inspection, which caused him to overlook the obvious spill, and my client was blameless because she could not have noticed the spill before she turned the corner.

Moral of the story for my fellow Central and Syracuse (and beyond) personal injury lawyers: Before you turn a supermarket slip and fall case down, demand to see the surveillance tape.

July 14, 2011

New York Injury Lawyer Discusses Salem New York House Explosion

fire.jpgThree are dead and several injured, including a baby, in this evening's two-level house explosion in Salem, NY,

From my experience handling propane and gas injury cases, I can tell you this has all the hallmarks of a propane explosion: An extremely violent explosion completely demolishing the home, debris blown hundreds of feet out from the epicenter, insulation hanging from trees, shingles and other debris strewn everywhere, mattresses, too. Even cinder blocks are blown far from where walls once stood.

One of the survivors, a renter, said he had called his landlord about a propane leak earlier in the day. That probably means that he smelled the leak. If he did, he should not only have called his landlord, but he should also have gotten out of the house until the leak was fixed, and should have warned others to get out, too.

If you smell propane, get out, and get others out, without lighting anything, without turning on any switches, and without even calling from a phone. That's because any of those activities can create a tiny spark that will ignite the propane in the air, and cause an explosion. Go to a neighbor's house and call your propane supplier immediately from there. They should send someone immediately to investigate and fix the leak.

Depending on what the investigation reveals, the landlord may be held liable for not responding to this serious warning early on. The propane providers may also be liable for failure to properly warn, and for having improperly installed the propane delivery system, or for failing to properly inspect the propane delivery system for leaks on a regular basis. There are many other possible theories of liability, against various people and entities, depending on what the investigation turns up. The injured and their families should hire competent New York gas explosion injury lawyers immediately. Those lawyers should then hire competent explosion investigators and experts immediately to capture all the evidence before it disappears.

Keep safe!

Mike Bersani

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

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

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


June 20, 2011

Don't Be A Fool With A Pool; Syracuse New York Personal Injury Lawyer Explains

Today's Syracuse Post Standard reported on a study published in the journal Pediatrics concluding that, in the U.S.A., a child dies in a portable pool every 5 days during the summer months. Ninety four percent of the victims are under 5.

Drowning is the second-leading cause of death among young children. (The first is car accidents). But why so many deaths in these cheap, shallow pools?

I can think of three:

First, there are so many of those portable pools. Almost anyone can afford them. They sell like hotcakes this time of year in Walmarts, malls and other stores. With so many around, it is not surprising that at least some of them would become death traps.

Second, many parents blindly purchase these pools with no awareness of the dangers, especially to small children and toddlers. They don't look dangerous at all --- they look fun, and they are, too. The parents purchasing these pools are not required to take a safety course, or watch a safety video first. (Maybe they should be?).

And third, many of the safety mechanisms prevalent with in-ground pools, such as fencing, safety covers, and pool alarms, are not available, or affordable, to the purchasers of smaller, cheaper pools.

But the real cause of most childhood drownings is lack of adult supervision. Never, ever leave a child who is not a competent swimmer unsupervised anywhere near a pool. And if you are supervising, don't get distracted in conversations, books, electronic devices or anything. Especially with very small children, you must watch with undivided attention. Drowning is usually silent, so don't expect to hear screams for help. You might just read or talk your way through your child's death-by-drowning. Drowning is fast - it only takes a minute or so with small children. That's just a couple of pages of your book, or a little tidbit of gossip from your neighbor across the fence.

Since I'm a New York personal injury lawyer, let me tell you a little about pool liability. If you own any kind of pool, even a plastic kiddy pool, and a neighbor's child makes his way to your property, falls or jumps in, and drowns, you can be held liable. Children are naturally attracted to pools and water. You have to guard the pool when you are not there to watch it. With smaller pools, just empty the water. With larger ones, cover, fence, and lock them.

And always, always supervise your neighbors' kids when they are visiting and the pool is accessible.

Don't be a fool with a pool.

Keep safe!

Mike Bersani

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

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

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

April 26, 2011

Surveillance Cameras Are A Godsend To New York Personal Injury Lawyers

Thumbnail image for Thumbnail image for banana peel.jpgSurveillance cameras are a game-changer in personal injury litigation. I blogged about this before, but another recent example illustrates this point.

A client slips and falls in the vestibule entrance of a local movie house. It had been raining, and movie-goers had been dragging in the rain on their feet. The employees had forgotten to lay out the rectangular carpets to absorb the water as they were required to do by company policy. But the insurance adjuster handling the claim tells me it was all my client's fault because she "rushed" into the vestibule. I formally requested that any surveillance videos of the incident be preserved as evidence. After I sue the movie house (because the insurance carrier refused to pay), I demand the video. It shows my client walking at a normal pace and then sliding for about a foot before finally tumbling to the floor. That floor was like an ice-skating rink, and I have it on video to prove it.

Before the era of surveillance cameras (and they are everywhere now - you would be surprised just where), my client might have lost this case --- it was just her word against theirs. Now it is her word, and a surveillance video tape, against theirs.

One thing I have learned as a New York personal injury lawyer, and especially as a slip-and-fall accident lawyer, is that you have got to demand, in writing, that those surveillance tapes get preserved right away. Many stores and other institutions re-use surveillance video tapes, taping over earlier recordings, on a weekly basis. But if you ask them to preserve the surveillance video as evidence, and they have not already taped over it, then they must preserve it. If the don't, the Court can later dismiss their defenses and grant the injured plaintiff a judgment based on destruction of evidence.

If you are injured and you believe there may be a surveillance video tape of the accident, don't forget to tell your New York personal injury lawyer about your suspicions so he can demand that the evidence be preserved!

Keep safe!

Mike Bersani

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

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

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