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Attorney and client walking up the steps of a courthouse

New York personal injury lawyers usually charge on a “contingency fee” basis.  The contingency fee allowed in a personal injury case varies from state to state, but generally it is either 1/3 (33 1/3%) or 40%.  In New York it’s at most 1/3.  It is often less where the lawyer is representing a minor and in medical malpractice cases.  For the purposes of this blog post, let’s assume it is 1/3.  But 1/3 of what exactly?  It depends.  Read on to find out!

But before I explain how it works, let me explain why it even exists.  The contingency fee exists because most people can’t afford the very high hourly-based fees lawyers would charge.  The hourly-based fees might reach over $100,000 in a complicated case.  The contingency fee allows regular folks who have a valid personal injury claim to seek justice.The contingency fee is a gamble for your lawyer.  If he does not win your case, he does not get paid. If he does win, or settles, he gets roughly a third of the money.

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Believe me, getting injured is not worth the money you can get in settlement or at trial with a personal injury like me.  It never is.  I have represented hundreds of clients over the years, and every single one of them would have gladly returned the money in exchange for turning back the clock to their pre-injury life.  Although obviously no one can turn a clock back (well, except for Marty McFly in “Back to the Future”), there is a lot we all can do to reduce the odds that a serious accident – one of life’s great wrecking balls – will strike us.

In my line of work, I see accident victims all the time.  Most serious injuries I see happen while my clients are operating a motor vehicle or dangerous machinery or when they are working from heights. To help avoid or minimize these injuries, drive carefully, don’t get distracted, wear seatbelts, wear helmets when required or advisable, use the right safety equipment, use eye protection when using power equipment, and don’t drink when you are using machinery of any kind. The point is this: Even when your injuries are largely someone else’s fault, you still might avoid or minimize the injuries if you just use your common sense.

What about Medical Malpractice?  Can you avoid being a victim of that kind of injury?  This is an important question because medical malpractice is now the third leading cause of death (after heart disease and cancer) in America.

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Photo of newest roundabout in Ontario County

Before I explain why roundabouts (also called traffic circles) are popping up all around us, let me digress.  I lived in France for five years back in the 70’s and 80’s and I never once came across a four-way stop.  That’s because they don’t exist there.  In fact, I recently had a French visitor driving my car in Geneva, New York, with me as passenger.  When we approached the four-way stop on Castle and Brook Streets, he did not know what to do. After I explained to him the “first come first go” principle,  he seemed perplexed, and asked me, “but what if we get to the stop sign at the same time?” Touché!  Good question.

France has more roundabout intersections than baguettes. They’re everywhere.   One out of every 45 intersections in France is a roundabout.  Au contraire over here.  It’s only one in a thousand.

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The City this Central New York personal injury lawyer calls home, Geneva, New York, recently amended its sidewalk law.  Many local homeowners are concerned about the effect this might have on their “liability” for snow and ice on sidewalks. Before the amendment, the City Code had said, and continues to say, that homeowners (and business owns) “shall at all times keep the sidewalk (abutting their property) free from ice, snow, grass, weeds, rubbish and other obstructions; and shall at all times keep said sidewalk in a good state of repair . . .”.  (Geneva City Code section 306-7).  The Code further said, “If any person shall neglect or refuse to comply with the requirements of this section as to snow, ice or other obstructions, or sidewalks out of repairs, the Director of Public Works may cause all necessary work to be done at the expense of the person so in default” (id.)  The amended law now states that, for snow and ice, the abutting property owner has only 24 hours from the cessation of snowfall to clean it up.

Bottom line, the City has upped the ante so that now, if you don’t remove the snow and ice within 24 hours, the City will do it and charge you for it.

The question for today’s blog post is, given the mandates of this City Code, can a passerby who slips on snow or ice or trips on a defect on the sidewalk abutting my property sue me for failing to remove snow or ice or otherwise failing to maintain the sidewalk abutting my property so that it is safe?

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As I write this blog, the roads in Syracuse, New York and surrounding areas are deadly.  Sleet and freezing rain have been falling all day .  The roads are frozen.  My driveway in Geneva, NY is an ice skating rink.  My windshield had a thick shell of ice covering it before I rolled it into the garage.

The National Weather Service just posted that the roads in Syracuse and all the way down through Pennsylvania are likely to be “treacherous” for travel for the next 48 hours.  The National Weather Service is warning of “nearly impossible” driving conditions. They warn drivers to stay home or at least “use extreme caution, allow plenty of distance between you and the vehicle ahead of you”.

Already about a dozen Onondaga County vehicles are reported crashed or disabled likely due to the weather.

I recently flew across the Great Pond to France. I’m no stranger there. I lived there for five years in my 20’s.  So my French ain’t bad.  I also have three daughters and four grandchildren over there.  Here we are having some fun:

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While in Toulouse, my French son-in-law and father of two of my grandchildren, Fabrice, took me to a Court called the “Tribunal d’Instance”.  There’s no exact translation for this since the justice system is so different over there.  Mostly this Court processed what we would call misdemeanors and low-level felonies.   Fabrice and I sat through four legal proceedings in one afternoon for about 5 hours.

Here’s a picture of the courthouse:

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We are well into the one-year grace-period (which started on August 14) of New York’s Child Victim’s Act (“CVA”).  Victims of childhood sexual abuse of any age can, during this one-year window, sue their perpetrators and those who facilitated the sexual abuse through negligence or worse.  More than 600 CVA lawsuits have already been filed.  New York childhood sexual abuse lawyers, myself included, have received thousands of calls and emails from victims.

I have been surprised by the many calls I have received from those abused by teachers.  Some schools, it turns out, were sexual abuse “clusters”.  For example, Kenmore West High School in Buffalo has been in the news for the large number of CVA suits (31) filed against it. Maryvale Union Free School District and Niagara Falls School District also are sexual abuse clusters.

Sexual abuse clusters are the product of what I call a “culture of silence”.  A perpetrator cannot rape so many children alone.  He needs a culture of silence to surround and insulate him from detection. What do I mean by a culture of silence?  It’s a “see no evil, hear no evil” attitude about sexual abuse. It’s a kind of “what happens in Vegas, stays in Vegas” even when the evil perpetrated is against children.

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Congratulations to my partner, attorney Jan Smolak, who recently settled a Syracuse personal injury case in mediation for a confidential amount above seven figures. Although we are not at liberty to discuss the details of the settlement, nor any of the specifics regarding the injury (we signed a confidentiality agreement with the insurance company), nor the exact amount, I can say that Jan, once again, did an outstanding job.

I interviewed Jan about this result after his mediation.  Here’s what he said:  “My client was very satisfied with the result.  As usual, I can’t say much about the case because the insurance company insisted on a confidentiality agreement.  But I can say this:  The settlement was a win for our client.  She is very happy with the result.  And that’s my definition of winning.” 

Why did the insurance company insist that the settlement be “confidential”?  This happens a lot with large settlements. Insurance companies worry that, if word gets out that they have paid out a significant sum of money on one case, plaintiffs with similar injuries in other cases against them will hold out for more money and refuse to settle for less.

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Now that the new school year has begun, here’s a mind-blowing statistic for New York State parents to worry about:  50,000 drivers a day in New York illegally pass stopped school buses.  And by “stopped” I mean with lights flashing and stop sign extended.  I have actually witnessed this happen myself.  Do I sound like an old fogy if I say that drivers used to respect stopped school buses?

Maybe, but I’m not the only old fogy out there. Just talk to any veteran school bus driver.  They’ll tell you that “back in the day” people respected stopped school buses as almost sacred.  One of them, A North Syracuse Central School bus driver, was interviewed last year in the Syracuse Post Standard.  She  complained that she was seeing not just a few, but many motorists, on a daily basis, illegally passing her bus with its lights on.  She eventually took matters into her own hands; she no longer allows children to cross until she has personally checked to see if traffic is approaching.  She no longer trusts motorists to stop for her bus’ flashing lights and extended stop sign! Now isn’t that sad?

Check out this video that went viral a few years ago.  It shows a car in New York passing a stopped school bus and narrowly missing a child:

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I sue for a living. I say that with pride.  I help injured folks get compensation from wrongdoers.  But when the wrongdoer is the Government, it gets tricky. And when I say “the government”, I mean not just “THE” Government, but all the cities, towns, counties, school districts legally deemed subdivisions of the State of New York. On the road to victory against such defendants lies a minefield of bombs.

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The procedural requirements for suing the government are rigorous.  On the way to the finish line, government lawyers will be watching for your mistakes.  But not just watching.  Slung across their wool suit jackets, they carry a quiver packed with sharp arrows, legal defenses that are available only to government entities.

Why is suing the government so hard?  Because the legislature has deliberately set up an obstacle course between the injured victim and government money.

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