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Articles Posted in Municipal Liability

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.

72x10007E1A2458-700x466.jpgI am going on tour again this fall. Tickets are still available to catch my show. Email me and I’ll make sure you get in. My itinerary? Buffalo, Rochester, Albany, Syracuse and New York.

Bruce Springsteen performed in all those places. But unlike Bruce, when I am done with my gig, I really don’t expect to see any lighters flick on.

No, no, I am not a rock n’ roll star like Bruce. Rather, I’m just a humble New York personal injury attorney dashing around the State to fill other New York accident lawyers in on the newest developments in “New York Municipal Liability” law.

firefighters.jpg.jpgJust before jury selection a few months ago, I tentatively settled a complex Syracuse New York wrongful death case I was about to try. For the settlement to be final, we needed Onondaga County’s legislature to approve it, and several layers of workers’ compensation approval, too. We finally got the last stamp of approval last week.

The case, which has bounced its way through the court system for more than 8 years, and went up on appeal twice, generated a lot of press, not only locally, but nationally, especially in firefighter publications. It is believed to be the only case where a court has ruled that a firefighter, and his or her employer, can be held liable for negligently issuing firefighting instructions or orders that end up killing or injuring another firefighter.

Yes, I am proud of this win. It took years of hard work, innovative legal arguments, the scaling of the high and thorny firefighter “red wall of silence”, untold hours of preparation (ask my wife and kids!) and, of course, a large dose good luck, too. This blog post is a kind of “scrape book” for the case, and that’s why I am listing below a few of the headlines this case generated over the years (you can read the full articles by clicking the headlines):

sad teen silouette.jpgLike everyone else, I have been following the “Happy Valley” Penn State child sexual assault scandal with disgust, awe, shock and dismay. But unlike everyone else, I am also thinking, as I read, who I would sue, for how much, and under what legal theories.

Although I am admitted to practice law in Pennsylvania, I have never handled a case there. My practice is limited to New York personal injury cases, and particularly to cases in Central and Western New York State. So I was surprised to read that some PA lawyers saw obstacles under Pennsylvania law to a lawsuit against Penn State because of the doctrine of “sovereign immunity”. Penn State would, of course, be the principle target of my lawsuit because of its deep pockets. The lawsuits brought against the rapist/sexual predator, Sandusky, or any of the individual coaches, such as Joe Paterno, would quickly deplete all their assets, leaving the plaintiffs under-compensated. There are at least eight victims, and probably a lot more will be stepping forward, which in my mind equates to many, many millions of dollars in lawsuit recovery.

In New York, a suit against a State University for something like this would not trigger a viable sovereign or governmental immunity defense. That’s because New York law distinguishes between the State’s traditional governmental role (such as providing police protection) and non-traditional roles the State has assumed over time, such as owning and running a university. Generally, the State can raise the governmental immunity defense only against tort lawsuits for the former, not the latter.

Thumbnail image for photo__1501307_michael_bersani.jpgFinally, I’m done! I have finished preparing my 2010-2011 review of all New York State municipal and government liability cases. I am ready to go “on tour” around the State educating other New York personal injury lawyers about the new case law on suing New York State, cities, counties, villages, towns, school districts, public authorities, and other governmental entities for personal injuries. I started this project back in early July, and just now finished. This is my fourth consecutive year preparing the case review. I can say, without exaggeration, that I am probably the only New York personal injury lawyer, or even the only lawyer — or the only person — to have read almost every New York case on governmental liability for personal injuries for the last four years!

Why is that such a big deal? Well, it really isn’t – except for one thing: It gives me an edge on analyzing and preparing New York personal injury cases against New York State and its cities, counties, villages, towns, school districts, public authorities, and other such entities.

When I was in college, a professor once defined a “generalist” as someone who knew nothing about everything, and a “specialist” as someone who knew everything about nothing. Well, I guess I am a “specialist” in the very narrow field of New York governmental and municipal liability. Fortunately, I also know quite a bit about other areas of New York injury law, including New York car accidents, construction injuries, defective product cases, just to name a few. I guess that makes me a “generalist”, too. Bottom line: I am a generalist and a specialist! But I haven’t quite figured out whether that makes me a generalized specialist or a specialized generalist . . .

Picture of Michael Bersani .jpgI haven’t had much time for blogging and I am sure that my many thousands (yea right!) of dedicated readers are wondering why.

Wonder no longer. Instead of blogging, I have been working on my review of this year’s New York case law regarding New York municipal and governmental liability. Every year I review and summarize new cases in this area of law for my fellow New York personal injury lawyers. Then, in the fall, I travel around the State (to Manhattan, Queens, Albany, Syracuse, Rochester and Buffalo) lecturing my fellow New York personal injury lawyers on the new developments in this area.

Some of you might be asking, “what is municipal and governmental liability“? Glad you asked.

playground (2).jpgI love the New York Times. Read it every day. That doesn’t mean I always agree with it. And here’s a great example.

A recent article by John Tierny explains that some playground “researchers” question the value of safety-first playgrounds. The researchers claim that, while it is “debatable” whether modern safety-minded playgrounds protect children from injuries, they hurt children by “stunting emotional development.” These academics believe that taking “risks”, such as the risk of falling from heights, is an important part of developing a healthy psyche. According to one of these head-in-the-clouds academics- a professor of Psychology – we should bring back the days of sky-high slides and jungle gyms, and see-saws too, because, while falls are common, “these rarely cause permanent damage”, and getting rid of those risks makes playgrounds boring and deprives kids of the opportunity to grow emotionally.

No offense Professor, but this sounds like bull_ _ _ _. And I have to wonder whether your research was funded by municipal insurers. Where’s your proof? The article doesn’t say.

Thumbnail image for masthead_lt[1].jpgThis Central New York accident lawyer is “on tour” again, traveling across New York State teaching other New York personal injury lawyers about New York “municipal liability law”. I addressed a very welcoming and attentive room of New York personal injury and medical malpractice lawyers in Manhattan this Friday, and will be hitting Albany, Syracuse, Rochester and Buffalo over the next 6 weeks.

What’s “municipal liability law“? It’s a maze of byzantine rules New York injury lawyers have to follow for suing New York State and its counties, cities, towns, villages, school districts and other governmental entities. The State and all these “subdivisions” of the State have special defenses they can raise to beat back accident and injury claims against them. I try to steer other lawyers around these blockades, and away from mistakes that might harm their injured clients’ cases

The rules are really quite complicated, and most years the courts “tweak” the rules at least a little bit in some of the cases they publish. And I read all the cases, hundreds of them, each year. I then try to distill from all this the most important changes in law, and convey that to my fellow personal injury lawyers.

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