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Articles Posted in Premises Liability

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.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for banana peel.jpgThe 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).

turkey.jpgThanksgiving 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.

Thumbnail image for sad teen silouette.jpgYesterday 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.

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.

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 Thumbnail image for Thumbnail image for banana peel.jpgI have already blogged about how surveillance cameras have made slam dunk cases out of slam dunk losers. Here’s another example. Just this week I took in a doubtful slip-and-fall case. The plaintiff slipped and fell on some liquid of unknown origin in the produce section of a local supermarket. In the pre-surveillance-camera era, this case would have been a loser. Why? Because you have to show either that the supermarket created the spill, or knew about it and did nothing to fix it, or failed to notice it when it should have noticed it. And how do you prove that when it is just as likely that an inconsiderate shopper made the mess and did not report it a minute before the slip and fall? In the pre-surveillance camera era, I would have turned this case down.

But I did not turn it down, and for one reason: surveillance cameras. I knew there was likely to be a surveillance video that would tell the story of what happened. So I wrote to the supermarket, told them I was representing the slip-and-fall victim, and demanded that they preserve the video subject to legal sanctions if they did not,

Today I received a phone call from a supermarket insurance adjuster who informed me that the video shows a customer spilling a drink 15 minutes before the slip-and-fall, and then shows a supermarket floor inspector walk right past the spill without seeing it, and then shows my client turning a corner and slipping on the spill. It is a slam dunk because the supermarket employee was clearly negligent in performing his floor inspection, which caused him to overlook the obvious spill, and my client was blameless because she could not have noticed the spill before she turned the corner.

fire.jpgThree are dead and several injured, including a baby, in this evening’s two-level house explosion in Salem, NY,

From my experience handling propane and gas injury cases, I can tell you this has all the hallmarks of a propane explosion: An extremely violent explosion completely demolishing the home, debris blown hundreds of feet out from the epicenter, insulation hanging from trees, shingles and other debris strewn everywhere, mattresses, too. Even cinder blocks are blown far from where walls once stood.

One of the survivors, a renter, said he had called his landlord about a propane leak earlier in the day. That probably means that he smelled the leak. If he did, he should not only have called his landlord, but he should also have gotten out of the house until the leak was fixed, and should have warned others to get out, too.

Today’s Syracuse Post Standard reported on a study published in the journal Pediatrics concluding that, in the U.S.A., a child dies in a portable pool every 5 days during the summer months. Ninety four percent of the victims are under 5.

Drowning is the second-leading cause of death among young children. (The first is car accidents). But why so many deaths in these cheap, shallow pools?

I can think of three:

Thumbnail image for Thumbnail image for banana peel.jpgSurveillance cameras are a game-changer in personal injury litigation. I blogged about this before, but another recent example illustrates this point.

A client slips and falls in the vestibule entrance of a local movie house. It had been raining, and movie-goers had been dragging in the rain on their feet. The employees had forgotten to lay out the rectangular carpets to absorb the water as they were required to do by company policy. But the insurance adjuster handling the claim tells me it was all my client’s fault because she “rushed” into the vestibule. I formally requested that any surveillance videos of the incident be preserved as evidence. After I sue the movie house (because the insurance carrier refused to pay), I demand the video. It shows my client walking at a normal pace and then sliding for about a foot before finally tumbling to the floor. That floor was like an ice-skating rink, and I have it on video to prove it.

Before the era of surveillance cameras (and they are everywhere now – you would be surprised just where), my client might have lost this case — it was just her word against theirs. Now it is her word, and a surveillance video tape, against theirs.

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