Central New York Injury Lawyer Blog

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.