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Articles Posted in Premises Liability

Next Tuesday I’ll be jumping on a plane to Central America. But I won’t be on vacation. I’ll be representing my Guatemalan clients as they get deposed, remotely, by video, from Syracuse, NY. There’ll be an interpreter with us.

How did I end up in Guatemala on a case? That story made the front page of the New York Law Journal and the Syracuse Post Standard. I blogged about that here.

Technology has changed every aspect of law practice. A few decades ago, what is about to transpire would have been impossible. Your Central NY injury lawyer will be sitting next to his clients in Guatemala City while insurance defense lawyers in Syracuse New York ask them questions by video. We will see those lawyers on the screen, and they will see my clients. They will be face to face. It’s kind of like Star Trek. “Beam me up, Scotty”! The video of my clients will later be presented to the jury.

Sometimes when I read newspaper accounts of other personal injury lawyers’ cases I wonder why those lawyers bothered to take them. While I wouldn’t call them frivolous, they just don’t make economic sense. How can you make a living taking those kinds of cases?

Case on point. Disney World’s “It’s a Small World” ride gets stuck. While most riders are evacuated right away, a paraplegic (from a prior injury), who is difficult to remove, is left on the ride for 30 minutes while “It’s a Small World” blares over and over again.

He sues Disney in Federal Court, claiming they should have called firefighters to evacuate him along with the others. He claims his high blood pressure and tendency toward panic attacks were aggravated as he sat in the boat listening over and over again to “It’s a Small World”. How much money would you give him? What’s his case worth?

Last year I blogged about a case (Miglino v. Bally Total Fitness) where one of New York’s intermediate appellate courts (the Second Department) held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If not, they can be held liable to the unattended victim.

In that case, the Court was interpreting a 2005 Statute, General Business Law 627-a, whose literal reading required only that AED’s be “on-site” at New York health clubs, and did not specifically mandate that Club employees use them. Nevertheless, the intermediate appellate Court read between the lines, holding that it was “illogical to conclude that no such duty exists”.

Now the highest Court in the State, the New York Court of Appeals, has reversed that Court’s Decision. The majority disagreed that the law creates an affirmative duty for clubs to use their defibrillators.

Life is full of surprises. I got one yesterday.

A client suffered a very bad injury from tripping on a sidewalk defect in a village near Geneva, New York (I won’t name names!). Normally, trip-and-fall on sidewalk cases are nearly impossible to win because of a special law that protects villages (as well as cities, towns, etc.). That law — General Municipal Law section 50-e(4) — says that, under most circumstances, you can’t sue a village, town, city, etc., for injuries caused by defects in a “sidewalk, crosswalk, street, highway, bridge or culvert” as long as the village (or town, city, etc.), has enacted a “prior written notice” local law. Such a local law must in turn say, “hey, folks, you can’t sue us for injuries caused by defects on our sidewalks, crosswalks, streets, highways, bridges or culverts unless, before you were injured, we already had written notice of the defect.”

This is an extremely unfair law. No one, at least in upstate New York, ever writes to a village or town or city to tell them, “hey, you have a defect in your sidewalk at such-and-such a location and you’d better fix it before someone gets hurt”. If people complain at all about a defect or hazard they see, they are more likely just to call and complain. But that’s not enough under New York Law. It has to be in writing to be valid.

This 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.

The New York Times just published a story titled, “A Fatal Slip on the Stairs Cuts Short a Life at 29“. Deaths in slip-and-fall cases are rare. Especially in someone that young. Usually you get fractured wrists or knees. So, an article with a title like that piqued the interest of this Central NY personal injury lawyer like a hurricane from Alaska would a weatherman’s.

So I read on. The article talked about how an unfortunate young lady was found dead, covered in blood, on a landing in a Manhattan building where she was staying with a friend. The police had initially suspected foul play, but later came to the conclusion that she was merely the victim of a slip-and-fall accident. She had been wearing high heels, was carrying a heavy bag and “the stairs were slippery“. The story goes on to talk about what an amazing person this was, how she was having some trouble in her marriage, and how she had just had a really tough week. A nice human interest story for sure, but what I am interested in is, “why were the stairs slippery”? So I kept waiting to get to that part.

And I never did. The article did not say what caused the steps to be slippery. It appears this was an indoor stairway. If the stairs were wet, I would want to know whether (1) management had just mopped them and left them that way with no warning?, or (2) there was a leak in the roof above, or (3) a tenant or someone else had just spilled a soda or something there. All this would be important for me if I were representing the estate of this young lady in a slip-and-fall case in New York against the landlord. In scenarios (1) and (2), the landlord could probably be held liable for negligent maintenance, but in scenario number (3) probably not (unless the spill had been there for a significant period of time, enough time for the landlord’s staff to notice it and clean it up).

Thanksgiving is this Central New York injury lawyer’s favorite holiday. Why? Because I love good food, and good company, but don’t like the complicated and expensive business of gift giving.

Although Thanksgiving is a holiday, unfortunately, it is not a holiday from accidents. In fact, there are more accidents on Thanksgiving than on other days. Primarily, car accidents. People drink too much, then they drive. Crash. Don’t do it!

Tis the season for slip-and-fall and trip-and-fall accidents, too. Black Friday means packed stores, with shoppers tripping over objects left in aisles, or slipping on liquid spills.

Yesterday I blogged about whether a “governmental immunity ” or “sovereign immunity” defense would bar a claim by child sex abuse victims against the State University of New York (“SUNY”) if something like what happened at Penn State (State university football coach sexually abuses children on campus) happened in New York at SUNY Geneseo, or SUNY Albany, or SUNY Cortland, etc. I concluded that those defenses generally would not be applicable in New York. But unfortunately, unlike in Pennsylvania, another defense would likely prevail in New York: The statute of limitations.

Pennsylvania, unlike New York, has extended the statute of limitations for child sexual abuse victims until they reach age 30. From news reports, it seems that all the Penn State child sexual abuse victims are still under 30 years old. So they can, and probably will, be able to sue Penn State for compensation, though on the very same facts, they would not be able to do so in New York

In New York, there is no specific statute of limitations for civil cases based on child sexual abuse claims. The child victim must rely instead on traditional statutes of limitations for assault (by the perpetrator) and negligence (by the employer of the perpetrator or owner of the building where it happened). In New York, the statute of limitations for assault is one year, and for negligence it is three years.

Like 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.

I 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.

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