law-360-300x182I recently posted a blog about New York’s top Court’s recent ruling that New York personal injury plaintiffs can win “summary judgment” against defendants without proving that the plaintiff was blameless for his own injury.  The rule previously, in most courts, was that the plaintiff could not get summary judgment without first proving that he or she was blameless. You can read that earlier blog here.

Since the blog was posted, Law360, and online legal newspaper of national renown, interviewed me about the case.  The article’s headline is:  “NY High Court’s Injury Ruling Could Spark Fast Settlements”.  The article quotes me as follows:

Michael Bersani, a personal injury plaintiffs lawyer for Michaels & Smolak PC in Syracuse, New York, said it has been in insurance companies’ best interests to stall litigation given their considerable resources. But if liability is already established, then a 9 percent interest rate on a potential $1 million verdict would glean $90,000 annually, he said. “It makes the plaintiff comfortable and makes the insurance companies very uncomfortable,” Bersani said. “If the insurance adjuster knows I’m going to get a verdict, they have much more incentive to get it resolved early and get it settled.” Bersani said the ruling will also help injured clients obtain third-party litigation funding in order to pay for daily living expenses. “Some plaintiffs are poor, and to wait out their case they have to borrow money from third-party lenders,” said Bersani, who noted that many can’t work due to their injuries and often run out of disability insurance funds. “Once you get a finding of liability, it’s easier to get a third-party lender at a better rate,” he said. “If I have an iffy case and can’t get a lender, if I get summary judgment, then it makes it a lot easier because the lender knows there will be money coming in and will get paid.”

images
It’s lacrosse season.  I learned to love the sport while watching my youngest son Nico play in middle school.  He went on to play JV and Varsity lacrosse at Geneva High School in Geneva, New York where we live.  I witnessed many games.  It’s a fast and furious sport, “the fastest game on foot” as its fans say.

As in any sport, especially one where a very hard ball is being tossed around at speeds above 60 miles per hour, lacrosse has its risks.

I remember back a few years ago a Buffalo NY Lacrosse player died when the ball hit him right in the solar plexus and caused his heart to stop. And that same thing has happened more than once.  Naturally that’s a risk we as parents assume when we let our kids play the sport.  And our kids assume that risk, too.  We lawyers call this concept “assumption of the risk”.  Here’s what that means:  A sports participant who agrees to play a sport like lacrosse is legally consenting to the commonly appreciated risks that come with the sport.  When the player is injured by one of those normal risks that everyone knows is part of the game, he or she is , naturally, barred from suing anyone for the injuries.

courtroom-300x199
Warning:  This blog may be a little too “legalese” for many of my readers, but it is an important development in New York personal injury law, so I feel compelled to write about it for my many lawyer-readers and others with a more-than-casual interest in the law.  The new development is a case from New York’s top Court — the Court of Appeals — called Rodriguez v. City of New York”.

The particular facts of that case don’t matter for our purpose here.  So I am not even going to talk about them.  Here’s what you need to know:  Whenever we New York personal injury lawyers sue a defendant for negligence, there comes a point, usually after depositions, when we consider making a “summary judgment motion on liability”.  That means we are asking the Judge – without a jury – to rule that the evidence so clearly shows the defendant was negligent that the Judge – without even giving the case to the jury to consider – should rule that the defendant was negligent and is liable to our client, the plaintiff.  At that point, if we get “summary judgment on liability” in our favor, we gain several advantages.

First, the only remaining issue now for a jury to decide is the amount of “damages”, in other words, how much is the injury worth?  We get to go to the jury and tell them “the judge has already found the defendant liable for what he did to our client and now you only have to consider HOW MUCH he owes our client, not WHETHER he owes our client.”  Huge advantage.  It’s like starting a football game with a three-touchdown head start.

scared-driver-300x199
A woman is walking her bicycle across a street at night. She is wearing light colored clothing. A car approaches.  Its headlights shine upon her.  The car does not slow down. It is traveling at 40 miles per hour. The car does not brake. Inside the car, another woman sits behind the wheel. She does not steer. She does not brake. She just sits there.  At the last second, just before the collision, the woman behind the wheel shrieks.  But it is too late to react.  The pedestrian is down.  She is dead.

In the 20th Century traditional car accident case, no question about who’s responsible:  the driver.  But this case is different.  There is no driver.  The car was driving itself.  The car is owned by Uber.  Uber’s engineers designed the car to be driverless.  The woman sitting behind the wheel was not driving.  She is an Uber employee and was supposed to be “monitoring” the vehicle, just in case the vehicle made a mistake.

This collision, which occurred Sunday night in Tempe, Arizona, was a major setback for Uber.  But also for the entire self-driving car industry. It is believed to be the first pedestrian death caused by a self-driving car.

 
blood-test-300x225
New York personal injury lawyers like me welcome this news:  The Food and Drug Administration recently approved a new kind of blood test that can detect concussions and identify possible brain injuries.  It’s called the “Banyan Brain Trauma Indicator” (“BBTI”).  The test works by measuring the levels of proteins, known as UCH-L1, and GFAP, that a damaged brain releases into the blood. Higher levels of these blood proteins indicate intracranial lesions.

There are several advantages of BBTI over traditional CT scans (which is how brain lesions at present are usually detected).  First, the blood test does not expose the brain to radiation as a CT scan does.  Second, the blood test will make for a speedier diagnosis of a brain injury.   But my hope is that the test will one day also be used to detect small lesions that today’s CT scans cannot detect.

Why is this last thing important?

maroons-300x225
Michaels & Smolak has several connections with the Auburn Maroons hockey team: (1) We are financial & broadcast supporters; (2) our law partner Dave Kalabanka is the father of goalie Jack Kalabanka; and (3) we love to win in Court just like the Maroons love to win on the ice!

And now we have even another reason to be proud of “our boys”: On Monday evening, at the Onondaga County War Memorial, Auburn defeated Clinton Warriors 5-1 to take the Division II section 3 final. Among the hundreds of exuberant Auburn players and fans who filled the ice in pan-demonic celebration were M&S partners Dave Kalabanka (proud father!) and Jan Smolak (proud supporter!).

“I’m just ecstatic to see this team make it this far” said Dave Kalabanka. “I have followed these kids for years. I know their capabilities. There is so much potential to be harnessed. I don’t think they realize just how good they can be with the right focus. They are a great bunch of kids. They are everything we want our kids to be: Hard-working, dedicated, spirited, respectful of each other, and with a never-give-up attitude.  They so deserve this win!”

lavern-205x300
RIP Lavern Wilkinson

Nearly three years after Kings County Hospital sent Lavern Wilkinson, a Brooklyn mom, to an early grave because of medical negligence, New York State legislators have finally revised a cruel New York State law that robbed her of her right to seek legal redress for the deadly medical malpractice that killed her.

Lavern was not the only victim of this cruel law.  Thousands of victims of malpractice have been denied their right to compensation by this arcane New York State law.

exploded-cigar-cartoon-man-prank-his-face-41193813-227x300
Remember those old cartoons with exploding cigars?  Pretty funny in a cartoon.  Not so funny in real life.

Today’s real-life exploding “smokes” are not the old-fashioned trick cigars, but rather the hip x-generation electronic cigarettes (a/k/a vaping devices).  They may be “cool”, but when they explode in your face they are a little too hot for comfort.

And that’s why e-cigarette manufacturers are facing dozens of personal injury lawsuits around the country from people who were injured by their exploding lithium-ion batteries.

file-300x300file-1-300x300
Since I am a New York personal injury lawyer, you might think I never met a personal injury case I didn’t like.  Nothing could be further from the truth.  I reject more injury cases than I take.  One reason I reject so many is that injuries are often caused by no one but the injured.  They sometimes try to blame others when there is no one to blame but themselves.  When that happens, obviously, there is no one to sue.

One thing I have learned in this profession is that, if there is a way to get hurt, some people will find it.  Mostly guys.   Some guys just live kind of dangerously. And I am one of those guys.

I have gotten injured through my own male stupidity many times.  Here’s one more to add to my long, painful record.

img-002-249x300As Syracuse New York personal injury lawyers, we often represent construction workers who fall from ladders and roofs when no safety line or harness is provided.  In such cases, we sue the construction site owners and operators for failing to provide this essential equipment. This happens far more often than you would think.

However, as a recent New York Times article points out, deer hunters who use tree stands are also at great risk of serious injury when they don’t wear harnesses with safety lines attached to the tree.  But personal injury lawyers don’t end up representing those folks.  Why not?  Well, think about it.  Usually a hunter has no one to blame but himself for failing to tether himself up.  We lawyers are a pretty smart group, but so far we have not figured out a way for someone to sue himself and come out ahead.

Still, since safety matters to us, we want to get the word out that tree-stand hunters, like roofers, need to tie themselves up.  A recent New York Times brings this message home very clearly.   It points out that at least five people died this year (2017) in New York State by falling from tree stands.  And many more have been injured.

badges
Contact Information