Premises Liability

Central New York Lawyer: Are Amusement Park Rides Safe?

March 30, 2010 | by Michael Bersani

Today’s Syracuse Post Standard reports on a seven-million dollar investment by the owners of the Darien Lake Resort to expand the amusement park this spring, adding new water-based rides and other attractions, and splitting Darien Lake into two much larger amusement parks. The Florida-based corporate owner of Darien Lake christened the new expanded water park “Splash Town” and the amusement ride area “Darien Lake Theme Park”. The article reports that Central New York is one of Darien Lake’s top markets.

But are amusement parks like Darien Lake safe? I read in the paper this week that an Indianapolis boy is fighting for his life after an amusement ride accident on a “tea cup” ride at an amusement park. The state authorities later determined that the ride had not been inspected in more than a year. At the same park, a 6-year old boy was seriously injured on an amusement ride only a week before.

The U.S. Consumer Product Safety Commission keeps statistics on amusement ride accidents. Between 1987 and 2003, a period of 16 years, only 12 people were killed on amusement park rides. That’s not bad, but in 2002 alone, over 3,000 injuries were reported from “mobile” amusement rides (the kind that are assembled at fairs) in the United States.

Syracuse New York Accident Lawyer: Landowners May Be Liable For Falling Trees or Tree Branches.

March 12, 2010 | by Michael Bersani

You are out for a stroll on a nice, but windy, spring day and suddenly, as you walk under a tree, a branch dislodges and falls on you, seriously injuring you. Is anyone liable for your injuries? Can you bring a New York personal injury lawsuit for injuries caused by a falling tree branch? After all, wasn’t this a “natural” occurrence? No one is liable for that, right?!

The answer is (as is so often the case in New York personal injury law) “it depends”. The owner of the property, or whoever is in control of the property, where the tree is growing MAY be liable for the tree branch accident if they “knew or should have known” that the tree was dead, rotten, or in poor condition. If an owner, or someone who controls the property, fails to remove a decaying, rotting or dead tree, or branches, and the tree or a branch falls and injures someone, or falls on a roadway and causes a car accident, he can be held liable.

Here’s a recent example of a falling-tree branch injury that could, or could not, become a valid case, depending on the circumstances: A Brooklyn man was recently killed in Central Park when he was struck by a falling tree branch that snapped off under the weight of wet snow. As reported in the New York Times, the tree branch weighed over 100 pounds and struck him directly on the head. Could the City be held liable for this tragedy? It looks like a tough case. The New York Times reports that branches were falling down all across the City because of a heavy build-up of wet snow. Maybe even healthy branches were giving way under the weight of the snow. If the tree showed no obvious signs of decay, rot or death, then the City is most likely not liable.

Syracuse Trip and Fall Lawyer Explains Why He Just Turned Down a Trip and Fall Case

March 1, 2010 | by Michael Bersani

Today a sweet elderly lady met with me in Geneva, New York, with what she described as a “trip and fall” case. I listened sympathetically to her story of how she was hurt, and then told her could not take her case. Why?

Let’s start with what she tripped and fell on. She was on her way out of a local supermarket with her adult son when she suddenly tipped on . . . well, she really did not know what it was. Her son, who had been with her, said that when he looked down after her fall, there was a floor mat that was “flipped up at the edge”. He deduced that his mother must have tripped over the flipped up edge of the mat. The store should have been more careful with that mat, right?

There are two problems with that:

Can Minor Who Gives Alcohol to Another Minor Be Sued for Injuries Caused by Drunk Minor in New York?

January 25, 2010 | by Michael Bersani

Two days ago the Syracuse Post Standard reported that the New York State Police had arrested a brother and sister, who are only 22 and 20 years old, for allegedly endangering the welfare of a child in Boonville, New York, by having an underage drinking party at their home on New Year’s Eve where the minor was served alcohol.

Here’s my blog-post question of the day: What if the under-aged drinker had injured someone because of his intoxicated state? For example, what if he had driven away from the party only to smash his car into an oncoming vehicle? Or what if, emboldened by his alcohol-fueled testosterone levels, he assaulted someone and caused serious injury? Who would be liable for those injuries? Can both the 22 year-old and the 20 year-old kids who hosted this party be held liable in a New York under-aged drinking lawsuit?

Yes they can! Obviously, the under-aged drunk driver or assailant would be liable, but so too would the people who held the underage drinking party, even if they themselves are minors. These rules are all found in New York’s General Obligations Law 11-100. Under this law, if someone is injured by an intoxicated minor, the injured victim has a right to bring a New York lawsuit against the person who caused or contributed to the intoxication of the minor by unlawfully selling to, or assisting in the procuring of liquor for, the minor. In order to be held liable, the procurer of the alcohol must have known, or had reasonable cause to believe, that the person he was providing the alcoholic drink to was under the age of 21. Under the law, even an under-aged person who provides alcohol to another under-aged person can be held liable to the victims.

Syracuse New York Accident Lawyer Explains How Camera Phones Are a Game-Changer for Personal Injury Cases.

January 11, 2010 | by Michael Bersani

Central New York accident lawyers and victims, and such lawyers and victims everywhere, owe a big debt to Philippe Kahn. Who’s he, you ask? Kahn invented, on a whim, the camera phone about 13 years ago (while he was waiting for his wife to deliver a baby — read full story in USAToday). Yes, that ubiquitous, ever-handy device that can snap a picture anywhere, anytime, was invented only 13 years ago!

Why do accident victims need to thank Kahn? Because they can just reach into their pocket, or pocketbook, pull out Kahn’s invention, point, click and — voila! – evidence preserved!

Two of our recent cases demonstrate what a game-changer the cell phone camera is for personal injury cases.

Syracuse New York Area Attorney Explains Restaurant’s Liability to Injured Patron for Falling Moose Head

January 3, 2010 | by Michael Bersani

The Associated Press and the Daily News both reported last week that an injured restaurant patron, Raina Kumra, filed a New York personal injury lawsuit against the White Slab Palace restaurant in lower Manhattan after a stuffed moose head fell from its wall onto her head. The restaurant first opened its doors for business only last February. Her lawsuit claims damages consisting of a concussion, loss of cognitive skills, chronic neck pain, dizzy spells, fatigue and anxiety. The moose head weighed 150 pounds and sported 3-foot-wide antlers.

When this Central New York personal injury lawyer read this story, my first thought was in Latin: “Res ipsa loquitur”. No, I don’t speak Latin. This is a legal doctrine, taught to all first year law students, which allows an injured plaintiff to use circumstantial evidence to prove negligence. In Latin, the phrase means “the thing speaks for itself.” In order to invoke the doctrine, the injured plaintiff has to show that the injury-producing event normally would not happen in the absence of some negligence. (Here, does a moose head just fall from a wall unless someone failed to secure it properly?). The injured person also has to show that the object that caused the injury (here, a moose head) was in the exclusive control of the defendant. The plaintiff must sufficiently eliminate other possible causes, including the conduct of the plaintiff herself or of other parties who might have tampered with the object.

The theory is often used in falling object cases. We at Michaels Bersani Kalabanka have brought several claims based on the theory of “resi ipsa loquitur”, mostly when merchandise falls from a shelf onto a shopper at big-box stores such as Wal-Mart, but also in our New York medical malpractice lawsuits where a doctor leaves a foreign object, such as a surgical sponge, inside the patient.

Do I Have a Case if I Slip on Ice or Trip on a Defect in a Sidewalk in New York State? Central New York Injury Lawyer Explains.

November 24, 2009 | by Michael Bersani

First scenario: You are walking on a sidewalk in Auburn, Cayuga County, New York and trip and fall on a raised portion (a “differential”) of the sidewalk that had been poorly maintained. You are injured. Second scenario: Same thing happens in Penn Yan, Yates County, New York. Question: Can you sue anyone to recover compensation for your injuries? Your central New York slip-and-fall lawyer’s answer: You probably can if you are injured on a sidewalk in Penn Yan, but not in Auburn, New York. Make any sense? Of course not.

Welcome to the complicated world of New York sidewalk laws. To understand why the result is different in Penn Yan and Auburn, you first have to understand that there are two possible owners of city sidewalks: The city or the abutting landowner. In Penn Yan, the sidewalks are owned by the abutting property owners. You can sue the property owner if you trip and fall on his or her poorly maintained sidewalk.

But in Auburn, the abutting property owner does not own the sidewalk. The City of Auburn does. If you have the same accident on a city-owned sidewalk, for example in Auburn, your case is much tougher. New York State sidewalk laws protect the city from liability for trip and falls or slip and falls on its sidewalks if the city has enacted a “prior written notice” law. If the city has such a law on the books (which Auburn does), then generally you cannot sue the city unless, before you tripped or slipped on that defect in the sidewalk, someone else had written a letter to the city complaining about the same defect. But this almost never happens! Although people might call the city to complain, they rarely write letters complaining about a raised sidewalk or a pothole.

Is a School in New York Liable When a Student Trips Another Student at School?

November 19, 2009 | by Michael Bersani

Recently, in Ontario County, in the Finger Lakes region of New York State, a 14-year old student of a public middle school didn’t go home at the end of the school day. Instead he ended up in a hospital getting plates and screws installed to fix a severely broken elbow. How did that happen? A fellow 14-year old student, who was just “goofing around”, tripped him in the school hallway when they were changing classes between periods. This was not the first time this student had injured other students. He apparently had a history of rough play.

The parents might ask a school accident lawyer the following questions (I will answer them further down): (1) can the injured child (and his parents) sue the boy’s parents? After all, they failed to properly raise this kid to be a civilized human being who can live safely with others. (2) Can they sue the tripping kid? (3) Can they sue the school?

Here are the answers, in order:

Central New York Winters, the Elderly, and Slip and Falls in Syracuse and Surrounding Areas

October 26, 2009 | by Michael Bersani

The older they are, the harder they fall. Or so it seems. With winter coming, property owners, as well as seniors and those who care for them, have to be extra careful to avoid slip-and-falls on ice or snow in all of central New York, including Syracuse, Auburn, Ithaca, Geneva and especially the very snowy Oswega areas. Why are slip-and-falls so dangerous for the elderly?

Seniors fall more often, suffer more severe injuries when they do fall, and recover more slowly. Here are some statistics gleaned from The Center for Disease Control and Prevention website More than one third of those over 65 fall each year in the United States. Among older adults, falls are the leading cause of injury deaths. Falls are also the most common cause of nonfatal hospital admissions for trauma. About 16,000 people over age 65 die yearly from falls. And fall-related deaths for the elderly are rising as the population ages.

In addition to the greater severity of the fractures (often the hip) which seniors face from falls, and the slower recovery time, seniors are exposed to greater risks of complications such as infections and blood clotting, skin ulcers and sores.