Articles Posted in Municipal Liability

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:

courtroom-300x199Winning is fun, especially when it’s a win not only for your client, but for many other people as well.  I am proud to say I recently helped win a victory for people injured through the negligence of governmental entities such as counties, cities and school districts.  In New York, these entities are known as “public corporations”.  Let me explain.

The case, Newcomb v Middle Country Central School District, was about a teenager struck by a hit-and-run car while attempting to cross an intersection near his high school. He suffered a life-altering brain injury.  His parents hired a lawyer who, among other things, tried to investigate whether other people, besides the driver, might have contributed to accident.  In other words, was anyone besides the driver at fault?  The lawyer did everything he could to get his hands on the police file.  But unfortunately the police delayed eight months in getting the lawyer the photos of the accident scene, the police report and other investigative materials.

Once the lawyer got the photos, he noticed that the School District had placed a temporary sign (announcing a high school musical) at the corner of the intersection.  The sign appeared to obstruct the line of sight between pedestrian and driver. This was likely a cause of the pedestrian not seeing the car approaching, and the driver not seeing the teenager as he stepped off the curb.

Rear-view of a young man hitchhiking on the side of the road
This fall your Central New York personal injury lawyer will again — for the 9th straight year — give his annual “CLE” (continuing legal education) class to fellow New York personal injury lawyers across New York State.  Once again I will be lecturing on the topic of governmental liability for causing personal injuries.  In other words, I’ll talk about how to hold the State and its various sub-divisions (counties, school districts, villages, towns etc.) liability for negligently causing personal injuries.  Each year, the New York State Trial Lawyers Academy invites me to do so.  I am invited to speak to rooms full of New York personal injury lawyers in Buffalo, Rochester, Syracuse, Albany, Manhattan, Queens, Long Island and more.

Why?  Because I have been fortunate enough through my work to become seen as one of the top experts in this field of law in New York State.  My articles on the subject have been published in New York’s most important law journals and magazines.  New York State judges sometimes cite to my work when they decide cases.

Suing governmental entities and agencies such as New York State or its cities, counties, school district, villages and towns is very different from suing a private wrongdoer such as a car driver or a hospital or a business.  The procedure is different, the time deadlines are different, the things you can sue for are different, and the defenses that can be raised are different.  You name it, it’s different.

Picture of Michael Bersani
Tomorrow I head to Buffalo to give my annual “Municipal Liability” update lecture to a room full of lawyers there.  I have already given the same talk in Albany, Syracuse and Rochester earlier this month.  Buffalo is the “end of the road” for this year.

I’ve been giving the annual update on this topic to my fellow New York personal injury lawyers all around New York state every year since 2007.  To prepare the talk, I have to  read EVERY published case from all New York courts on the topic for the entire year, which amounts to hundreds of cases.  I then have to write an “outline” summarizing the most important hundred or so cases.

Lots of work?  Sure.  And it is UNPAID work.  Totally voluntary.  But still, I get more out of it than what I put in.  How?

shoulder injury.jpgteacher knocked out.jpgIn nearby Tioga County, NY, a 10-year-old boy was recently hospitalized after his math teacher caused this injury (see photo) to the boy’s shoulder. The kid’s mom posted the photo on her Facebook page. Mom and child have served a “notice of claim”, which is the precursor to a lawsuit, on the School District. The notice of claim alleges that the boy was working on a math question, when teacher overheard him say, “c’mon.” The teacher then confronted the boy, dragged and lifted the boy by his right arm from his seat, and pushed him out of the classroom. He has apparently suffered a separation of his clavicle bone. Ouch!

Meanwhile, in another part of New York State — down in Long Island — the mother of a middle school student received a call from her 12-year-old daughter complaining that her teacher had “put her hands on me.” The outraged mother raced to school and somehow got past security (that should not have happened) and into the school. She then made a beeline to the teacher’s classroom, attacked her, put her in a headlock, and then threw her to the floor where the teacher lost consciousness. That’s her lying on the floor in the photo. (It’s all captured on surveillance tape). But that’s not all. While lying on the ground unconscious, the teacher was beaten by several students, including the mother’s 14-year-old niece. Talk about being an unpopular teacher!

So why am I blogging about these two unrelated events? Well, first, they are somewhat related in that they suggest there must be something in New York State’s drinking water making people crazy at school.

IMG_0242.JPGIMG_0243.JPGIMG_0245.JPGIMG_0248.JPGIMG_0250.JPGIMG_0262.JPGIMG_0261.JPGIMG_0257.JPG——————– As my regular readers know, I was in Guatemala for the last few days taking deposition testimony. Why so far away to take testimony? I blogged about that here.

I love Guatemala. Beautiful country, weather and people. But some things are definitely better in the U.S. For example, the sidewalks in Guatemala City are treacherous. How treacherous? Take a look at these photos I took all within a few blocks of my hotel. And that’s the best section of Guatemala City!

Traveling to a country like Guatemala makes me appreciate U.S. “tort laws”, that is, the laws that allow us to sue for money damages if we are injured. These laws are necessary to keep us safe. If the laws are stripped from the books (as “tort reformers” would have it), there is no financial incentive for companies and others to keep things safe.

Seal_of_New_York.svg.pngThis Auburn New York personal injury lawyer has a new feather in his cap. I have been invited to speak at a state-wide meeting of New York Court of Claims judges in Cooperstown, NY on September 26. It appears that several judges read my recent article, which recently appeared in the New York Bar Law Journal, on the topic of “governmental immunity”, and want to hear me talk on the subject.

Governmental immunity is hot button topic for New York personal injury lawyers and judges. The “governmental immunity defense” can be raised by any governmental agency that is sued for personal injuries, including the State.

The Court of Appeals (New York’s highest Court) has recently come down with a series of rulings that tilts the playing field of this defense in favor of the government at the expense of victims of the government’s negligence. (That’s what I wrote about). Since Court of Claims judges preside over all personal injury claims brought against the State of New York, it is easy to see why the judges want to hear from me.

Picture of Michael Bersani .jpgFolks, it’s been a while since I have had the time to blog — been in trial! But now that I am out of trial – and have some breathing space – I wanted to post an article of mine that was recently published in the New York State Bar Association Journal. It’s titled The Government Function Immunity Defense in Personal Injury Cases in the Post-McLean World”.

This article is for my fellow-lawyer readers. It walks you through the most recent legal requirements for getting past the “governmental immunity defense”, which is often raised when you sue governmental entities such as the State, counties, cities, towns, villages, school districts, etc. I hope this article helps my fellow lawyers navigate the rough seas of municipal liability.

And I will be traveling throughout the State, once again this fall, to present to my fellow lawyers my municipal liability update —- a compendium of new case law on the subject. It will be great to see old friends from all around the State. Hope to see you then!

maze.jpgThe biggest single change for 2013 in New York personal injury law is, without a doubt, the Uniform Notice of Claim Act, which Governor Cuomo has signed into law on December 20.

It’s a real game changer. Let me explain.

Until now, New York public entities (counties, cities, towns, villages, school districts, public authorities, fire districts, water districts, public libraries, etc.) have enjoyed disseminating a jungle of inconsistent procedural rules and time limits for starting personal injury lawsuits against them.

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.

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