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Articles Posted in Premises Liability

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Mel Gibson was born in Peekskill, New York.  But somehow he got his first big acting gig (in the movie Mad Max, his break-through role)  in Australia in 1978 at age 22. But why was this Peekskill, New York-born US citizen in Australia? Because his parents decided to emigrate there when he was 12 in 1968. But why did his parents decided to emigrate there? Because his father’s New York personal injury lawyer obtained a $145,000 settlement for him for work-related injuries.  This gave Mel Gibson’s father the money to move to Australia, where his family was originally from.

If Mel Gibson’s father’s personal injury lawyer had not gotten Mel Gibson’s father a $145,000 settlement, Mel Gibson would never have ended up in Australia, where his acting talent was discovered.

So as you can clearly see, a New York personal injury lawyer (the one who represented Mel Gibson’s father) is responsible for the meteoric rise to stardom of actor Mel Gibson.  Thus, every time you watch movies such as Mad Max, Lethal Weapon and Braveheart, you should thank a personal injury attorney!

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As a New York personal injury lawyer (serving mostly the Syracuse and Central New York areas), I have pretty strong opinions about so-called “tort reform” (which we personal injury lawyers call “tort deform”):  I’m against it. Generally, tort reform is just a power-play by big business, the chamber of commerce and insurance companies to get a free pass to act negligently and injure people without having to pay the price.  The “price” of their negligence is shifted to the people who can least afford it:  Their injured victims.

But I agree partially with the corporate/insurance lobby’s newest call to arms:   They want immunity from coronavirus tort lawsuits for businesses that open up to the public.  I agree that restaurants, gyms, and retail stores should get some kind of immunity. Total immunity, no, but rather “qualified” immunity.  I’ll explain what I mean further down.

But first, why would a New York personal injury lawyer like me be in favor of a form of personal injury lawsuit protection for certain businesses?  Because I want America to get back on its feet. This damn virus has slammed with particular vigor at our retailers and restaurants.  Some will never reopen.  Those that will are going to need some help.   Our restaurants and retail stores are like a boxer who has been felled by a near knockout punch.  We need to allow him to get back up on his feet before we can engage him in more fighting.  Otherwise, we could kill him. (For a contrary view, read here).

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Most New York State counties, including Monroe, Onondaga, and all the counties in between, have a law on their books which allows the county public health commissioner to issue an order for involuntary isolation if an individual disobeys a quarantine request and is believed to be an immediate threat to public health.  And the counties are not shy to enforce the law.  Example:  One of my brothers, who lives in Auburn, New York, developed Coronavirus symptoms a few weeks ago.  The Onondaga County Health Department ordered him to get the test (which he willingly did) and then ordered him quarantined in his home until the test results came back (7 days later).  Fortunately, he tested negative, but a County Health Inspector stopped by his house two times a day to make sure he was not leaving the home.  If they had found he had “flown the coop”, they likely would have issued an order for his arrest.

Here’s an even better example:  A Monroe County resident with Covid-19 symptoms, who refused testing, and then disobeyed a Monroe County Department of Public Health civil order to quarantine himself, was arrested and jailed recently in a County jail in Brighton, New York.   He has been isolated from other inmates to prevent COVID-19 spread.

Assuming this selfish and anti-social person passed the virus onto others, who got very sick or died, can his victims or their families sue him for money damages in New York?  That’s our New York personal injury law question for today.

IMG_0168-300x225 IMG_0172-225x300Like almost everyone else on Planet Earth, this Syracuse NY injury lawyer has been holed up at home, hunkering down against the pandemic.  My home is in Geneva, NY, which is a pretty nice place to be locked down.  People here are looking out for each other.  I’ve joined a group of corona virus fighters at a local church preparing cheap and even free meals for folks on the weekend.  Can you guess which one in the above photos is me?

My “real” job, though, is not on standstill.  In fact, my laptop keyboard is getting quite a workout:  I have been conducting online research, shooting out emails to adjusters and defense lawyers, preparing legal briefs, etc.  My cell phone has also been working overtime:  Insurance adjusters are still working (from home) so I have been trying to settle cases with them. I have also been catching up with clients on the status of their medical treatment.

The court system, however, is frozen solid, at least in the civil arena.  All motions, court filings, trials, etc. are suspended.  My calendar is just about empty.  And that does give me some extra time for reading and writing.

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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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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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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:

banana peelMy mom is turning 89 in about a month.  Her short-term memory is tarnished, but otherwise she is doing just fine.

I worry about her, though.  One thing I worry about, especially with the winter months now approaching, is her falling.  As a personal injury lawyer, I see a lot of slip-and-falls, trip-and-falls, and all other kinds of falls!  So I know first hand the kind of serious harm a fall can cause.

So far mom has avoided any falls at all in her senior years.  Will her luck continue?

dead treeI am representing – not for the first time – a personal injury plaintiff who was struck and injured by a falling tree. Very strong case.  But when I tell non-lawyers I am representing a falling-tree victim, they blurt out something like this:

“Wow, a tree falls and you can sue? That’s what’s wrong with our system. A tree falling is God’s fault. Who the hell are you going to sue? God?”

And if they really want an explanation (and are not just venting against our tort system), I respond something like this:

gorge in ithaca.jpgI came across an article recently in the New York Law Journal titled “Drunken Run Could Leave Cornell Liable for Fatal Fall”. It’s about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named “Fall Creek Gorge trail”.)

Cornell moved for summary judgment (to have the case dismissed) based in part on New York’s General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.

Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not “hiking”. The judge relied on a definition of “hiking” in the Department of Environmental Conservation’s regulations, which says hiking is “walking through trees for pleasure or exercise”. Here the kid was not “walking for pleasure”, the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.

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