scaffold-300x200If you walk into a Syracuse, New York pub on a Friday at 5:20,  and you happen upon a group of personal injury lawyers having an end-of-the-week beer, you might hear them rant about how unfair some New York personal injury laws are.  For example, unlike most States, New York does not allow the immediate family of a wrongful death victim to receive compensation for their grief and heartache at losing their loved one, even if that loved one is a child.  A millionaire drunk driver ran over your thee year old?  Tough luck, mom.  Was he supporting you economically?  Of course not, so you don’t get economic loss recovery.  So what if he was the most important thing to you in the whole world, and your life has been destroyed by losing him.  No compensation for your grief!  You might settle that case for a few thousand dollars, but not the millions it is really worth. Very unfair!

But New York personal injury law has its upside, too.  For example, unlike any other state, New York has something called “the scaffold law”, also known as Labor Law section 240.  That law allows construction workers and others who fall from heights – and  in some cases upon whom objects fall — to get full compensation for their injuries.  This compensation goes far beyond mere workers’ compensation.  The injured fallen worker can sue the general contractor and owner of the construction project for real money, including pain and suffering compensation.  Usually, the case will involve a ladder or scaffold that failed, but can also involve a worker falling because he was not provided with adequate fall protection, such as a harness or barrier.

But here’s the real kicker, and here’s why New York construction accident lawyers like me just love Labor Law section 240:  The injured worker gets fully compensated even if the fall from the height was partially his own fault, as long as Labor Law section 240 was violated.  And Labor Law section 240 is violated almost anytime a construction worker falls from a height, whether because the ladder or scaffold or harness failed, or because such safety devices were not provided, or because proper barriers were not in place.

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In this Syracuse NY Injury lawyer’s last blog post, I talked about how, in most cases, a New York personal injury victim will end up with a much larger settlement with a lawyer than without one.  The problem with “going it alone” is that insurance companies will generally low ball” you an offer, hoping you will take it, sign a release, and go away (forever).

But my clients aren’t the only ones who get low balled.  Sometimes insurance company adjusters will “low ball” me an offer, hoping I will want to make a quick buck and move onto the next case.  But at my law firm, we don’t take low ball offers (except in the rare case where our clients won’t listen to our advice and take the low offer).  Although some New York personal injury lawyers regularly traffic in low ball settlements, I am proud to say ours does not.

In my opinion, those that do are typically large law  firms who advertise heavily and need to “churn” their cases to keep the money rolling in to pay their advertising bills.  At my law firm, where the bulk of our cases come by referral from other lawyers, we would rather handle fewer cases and MAXIMIZE the amount we can get for those few but dear clients.  We make our money by working up a few cases rather than knocking off quick settlements on a swarm of cases.

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I hate to break it to you, but despite all the cute auto insurance ads on TV, insurance companies are not “nice guys”.  At least not if you were injured through the negligence of their insured.  You have to understand this very important fact right from the get-go:  In personal injury litigation, insurance companies are not your friend.  They are not a “good neighbor”.  They are not a cute little lizard.  They are not “by your side”.  You are not in “good hands” with them.  They are a business.  Their business is to pay you as little as possible on your claim so they can yield a bigger profit.

Case in point:  Last week I settled a case for a woman who fell off a horse at a local riding stable during a riding lesson in upstate New York (near Syracuse).  It was her first time on a horse. The saddle spun around while she tried to mount, throwing her to the ground, where she suffered a serious femur fracture.  Turns out she weighed more than the saddle setup could handle. The stable owners knew it, but failed to warn her.  Here was the original position the insurance company took (you need to click the image to read it):

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After we got that letter, we sued  the stable owners.  We then took the deposition testimony of the owners and witnesses.  The insurance company lawyers then asked the trial judge to toss out our case because our client had “assumed the risk” of horse riding lessons, and had signed the waiver.  The trial judge dismissed our case.   We then appealed to the appellate court in Rochester, New York, got the trial judge reversed, and the case reinstated.  Last week, at a mediation, we settled the case for $130,000, which by the way was the amount of money we always thought the case was worth.

Yesterday there were lots of smiles on the sidewalk of East Genesee Street, Auburn, NY, just outside the office of Michaels & Smolak.   The reason?  Our back-to-school backpack giveaway.  We loaded up the new backpacks with all kinds of school goodies and supplies.  Live radio coverage was provided by Mix 98.5.  For a full hour they came, lined up, chose their backpack, and left with a smile.  Most takers were single parents or grandparents with their kids.  It was so great to see smiling kids pick out their backpacks.  Shout out to Catholic Charity volunteer Ellen Wayne and Angelo DiAngelo of Angelo’s Pizzeria (free pizza)! Check out our photos below:

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Keep safe!

Mike Bersani

I am in my final days in Costa Rica where I have been exploring rain forests, volcanos, and beaches. Some of the exploring is (just a little) risky.  Costa Rica is famous for its “environmental tourism” also called “adventure tourism”.  But where there is adventure there is a risk of misadventure.  In other words, s— happens.  And since I can’t go anywhere without taking my lawyer brain with me, I have been thinking a lot about the “assumption of the risk” doctrine, which protects sport facilitators from lawsuits by participants who might get hurt while engaging in the sport. This includes of course adventure sports.

I have had some “misadventures” here already.  Read on and find out about them!

But first, a little about the assumption of risk doctrine.  In New York, this means that if you are injured in an adventure sport such as zip-lining, hiking, bungee jumping or whatever, it is difficult to bring a claim and get compensation in court against the entity that provided or facilitated your participation in the activity.  It is pretty much universally the rule – in New York and everywhere – that you “assume the risk” of dangerous activities you choose to participate in.  This is based on a fundamental concept of law . It’s called “common sense”.

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Photo above:  A New York sidewalk defect, suitably marked with orange cones.

I love traveling and have done a lot of it, including in Mexico and Central America.  Right now I am in Costa Rica.  Love it here!  The people are super friendly, the climate is awesome, the food great.  The countryside is spectacular – active volcanoes, dense pristine jungles, and sandy beaches both on the Atlantic and Pacific costs. What’s not to like?

So far I can think of only one thing:  Their tort law.  Though I have not read their laws, I have to assume – from what I have seen – that someone injured through the negligence of others does not have much of a remedy in Court.  Take a look at this video I shot today before you read any further:

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At M&S, we are big on safety, and that includes motorcycle safety.  But safety requires some study and practice.  We like to say that “safe riding is no accident!”  We urge our biking clients to read up on and follow the strictest biking safety guidelines.  But unfortunately, there are many FALSE biking safety tips out there.  And some myths never die no matter how much evidence accumulates to debunk them.  For example, remember when they used to tell you that eating before you swim was a no-no because it could cause you to cramp up and drown?  Turned out to be false!  Still, many people still believe it to be true.

Here are the most common and enduring myths about motorcycle safety.  Share these with any friends or family members who bike:

MYTH 1. Full-Face Helmets Restrict Your Visibility

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Yes, you read that caption right.  This personal injury lawyer wants FEWER boating accident cases.  Not because I don’t enjoy representing those injured through negligent boating (I do), but because I want there to be fewer accidents altogether.  I have enough personal injury cases.  I don’t need more and would prefer fewer cases if it meant fewer people were being injured and killed in boating accidents.

And I think I know a way to make boating much safer, and to avoid accidents.  Here me out!

But before you hear me out, here’s a little background.  I just became a first-time boat owner.  Not that I am new to boats.  I grew up around motor boats and sail boats (on Skaneateles Lake) and have been using my brothers’ motor boats for many years. I have boated on Cayuga Lake, Owasco Lake and Seneca Lake.

Hey Upstate New York bikers, it’s that time of year again.  You’ve probably taken your motorcycle out of storage, tuned it up, wiped it down, and taken a few rides. Good for you.  Now all you need  is to freshen up on safety.  You might think (cynically) that New York motorcycle accident lawyers like us would rather wait for you to have the accident and then turn a profit off of your suffering.  No!  Believe me, we have plenty of work, and we would rather save a life than add one more case to our portfolio.

Knowledge is power.  If you know how most Upstate New York motorcycle accidents happen, you are more likely to avoid them.  So are you curious to know the most common types of motorcycle accidents here in Upstate New York, including the Syracuse and Rochester areas?  Thought so.  Here they are:

Head-On Collision As Car Turns Left

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M&S’ senior law partner, Lee S. Michaels, is not only a top New York personal injury lawyer, but also an award winning adjunct professor at Syracuse College of Law.  He teaches young soon-to-be lawyers how to try a court case.  This is called “trial practice” in law school.  The Syracuse College of Law website recently featured an article about Lee’s amazing trial teaching techniques.

Lee’s trial teaching philosophy is simple:  The best way to learn to try a case is – well – to try a case.  So his students all have to try one to get their final grade. It’s just a simulated trial, sure, but a very realistic one nevertheless.  The students take on roles such as prosecutor, criminal defense lawyer, and witnesses in a fictitious criminal trial.

Lee tries to make the simulated trial as realistic as possible, “with a little help from his friends”.  He calls on former students – now judges – to act as trial judges.  Lee’s class’ most recent  “trials” starred Auburn NY’s City Judge David Thurston and US Northern District Magistrate Judge Thérèse Dancks, both former students of Lee’s. Also participating were Auburn City Judge Michael McKeon and Lee’s former student Kevin Kuehner, a Syracuse trial lawyer

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