Articles Posted in Workplace Accidents

Who wouldn’t want to be Spider-man? His outfit is so much cooler than Superman’s. And what about swinging between skyscrapers by spitting that web-gook from your wrists? Isn’t that a more thrilling way of getting around than that all-so-boring Superman extended-arm flight?

Not so fast! Be careful what you wish for. At least that’s what three Spider-man actors are saying.

Let me take you back to December of 2010, when I blogged about Spider-man’s incredible 30-foot plunge to the stage floor in a Broadway performance of the musical, “Spider-Man: Turn Off the Light”. His spider-swing-line failed, catapulting him to the stage below in front of a horrified crowd of Spider-man fans. But Spidey — as I like to call him — in true superhero fashion, recovered and returned to the show within months. The show must go on!

Do you think you might be a safer driver if your traffic convictions and accidents were posted on line and easily searchable so that all your neighbors and friends could look your record up?

If your answer to that question is “yes”, then you’ll like a new rule by the Safety and Health Administration (“OSHA”) which makes companies’ safety records easily available on a government website.

Why this new rule? The shame factor. OSHA’s thinking is that if companies with a bad safety record know their record will not remain hidden is some dusty notebook in a government basement, but rather see the light of day on the world-wide web, they might think twice about cutting safety corners. In addition, prospective employees will be able to compare, when deciding which job to accept, not only the wages of the employers but also their safety records. As a side benefit, personal injury lawyers like me can build negligence cases against repeat offenders with greater ease.

Imagine a three-way chess game where two players actually play, while a third sits by watching. Let’s call the guy watching “the watcher” (I’m brilliant!). The watcher is going to play you next. But here’s the thing: If you win the game you are now playing, the watcher will actually play you. But if you lose, then the watcher automatically wins his game against you and you automatically lose. No need to actually play that game. In other words, if you lose against your opponent, you lose against both your opponent and the watcher. But if you win, you win only against your opponent, and have to play the watcher to take a second win. In other words still, a loss makes for two losses, but a win makes for only one win.

Sound fair? Of course not! But those are the rules of the game the Court of Appeals has recently signed off on in Auqui v. Seven Thirty One Limited Partnership. And the player with the one-loss-equals-two-losses dilemma is YOU if you are an injured worker with a comp claim against your employer as well as a “third-party action” (personal injury lawsuit) against someone else.

Here’s how it works: Let’s say in both cases (comp claim and personal injury lawsuit) you are claiming you are disabled. Your workers’ comp hearing comes up before your personal injury trial. If the comp judge finds you NOT disabled, the personal injury lawsuit judge will rule you are automatically NOT disabled for the purposes of the personal injury trial, too. But if the comp judge finds you ARE disabled, you can’t use that ruling in your favor at the personal injury trial. You have to prove that all over again to the jury, who will never learn of the prior comp disability finding.

Should undocumented Mexican and Guatemalan farm workers who cross our U.S. border illegally, work in New York illegally, then get seriously injured through the negligence of others, then file a personal injury lawsuit in New York against those others, then go back home because they can no longer work or afford to live here while they await their trial date, and then can’t get visas to get back to the U.S. for their depositions or trial, be allowed to give video-taped deposition and trial testimony from their home countries? After all, the general rule is that a plaintiff must present him or herself for depositions and trial testimony in New York where they filed the lawsuit. But still, should their cases be dismissed for failing to appear in New York when they can’t get visas to get back here, even if the visas were denied because they came here illegally to begin with?

This was the question I recently presented to a trial judge, and then to an appellate court. I argued that a “balancing of the scales of justice” required the court to allow the testimony of my injured migrant farm workers by video-conferencing from abroad. I argued that, on one side of the scale of justice, if testimony was allowed to be taken from abroad, both plaintiffs and defendants would have their day in “court”, sort of, and justice would be served, although there would be quite a bit of inconvenience to the parties and the Court, and of course it would be better to have the plaintiffs testify in person before the jury. On the other side of the scale, if the Court required plaintiffs to appear physically in Court in New York for depositions and trial, their claims would be dismissed when they failed to show up, no trial would be had, and no justice would be done.

In other words, on the one hand, there was a less-than-perfect forum for justice, but a satisfactory one nonetheless, and on the other, there is no justice at all.

My fellow Syracuse personal injury lawyer, Joseph Cote, who besides being a great lawyer, is a really nice guy, recently won a nearly $3.4 million Rochester NY personal injury verdict for a security guard shot in the face during a robbery at a Wilson Farms convenience store in Rochester.

The jury held the chain-convenience store’s corporate owner 50% responsible and the robber (who was never caught) 50% liable. How could the store be held liable, even half liable, for an armed robber shooting its security guard? Well, Joe argued that the convenience store should have required its employees to move cash from the store to the bank more often. Instead, Wilson Farms became a favorite piggy bank for armed robbers because they knew there was likely to be a big payday inside. In the past decade, armed robbers targeted the Rochester area Wilson Farms stores a grand total of 126 times, which included six shootings and one death.

Joe’s argument reminds me of what Jesse James said when asked why he robbed banks: “Because that’s where the money is”, he quipped.

News reports say a man working on a cell phone tower near Marcy, New York, suffered serious injuries today after falling more than 80 feet. He is reported to have suffered multiple broken bones and was taken to Utica’s St. Elizabeth’s Medical Center.

Falls from a height like that can cripple, maim or kill. We had a similar case (fall from a cell tower) a few years ago, which we brought to a successful conclusion. To win it, we used a special law that helps workers who fall from rooftops, scaffolds and towers. It’s called Labor Law 240, or “the scaffold law”. It allows a fallen worker, under certain circumstances, to sue anyone with an ownership interest in the tower or the land the tower is on, including leaseholders, for compensation above and beyond what the worker will get in workers’ compensation from his employer.

The key to winning this kind of case is to show that the worker was on the tower to “repair” something or to inspect something that was broken or malfunctioning. If his task involved “repair” work, or inspection work in contemplation of repair work, he is generally protected by Labor Law 240. But if he was performing mere “routine maintenance” of the tower, then he cannot prevail under Labor Law 240. He will generally be stuck with just his workers’ compensation benefits, which (as anyone who has been on comp knows) generally isn’t enough to pay the bills. It covers at most only about 2/3 of lost wages.

I get calls from people all the time like this one: “I was injured at work, and I am getting comp, but it’s not enough to pay the bills. Can I sue for more”?

But I need more info. So I start asking questions back. As I listen to how the accident happened, I am trying to see if anyone other than the employer or co-employees was partially at fault. Was some third-party, such as an outside contractor, partially responsible? If not, at least a little bit, then we can’t sue anyone. That’s because the employer and co-workers can’t be sued, even though they were at fault, as long as the injured employee got comp. This is known in colloquial legalese as “the workers’ comp bar”.

Just to make sure we can’t sue anyone, after I have all the facts, I usually ask the caller, “can you think of anyone who was at fault for this accident other than your employer or your co-workers”? If the answer is “no”, then chances are the guy is stuck with just his comp, which sucks, because that pays, at most, 2/3 of his pay. If you are a member of the working class, and you are just barely getting by on full pay, imagine trying to pay those same bills on 2/3 pay. A lawsuit, on the other hand, could result in full payment of lost wages, plus pain and suffering compensation.

This story just kills me. The Syracuse Post Standard reports that a construction worker repairing the roof of Tully High School fell from the roof this morning while members of the high school’s girls cross-country team stood by and witnessed it. I feel terrible for the injured worker, but also for those poor kids who witnessed the tragedy.

And it was an avoidable tragedy. The law was not followed. I’ll tell you more about that later, but first let me say that, in my experience as a Syracuse construction work accident lawyer, most fallen roofer injuries are serious, and life-long. Because the injuries from falls are so serious, New York has a special law to protect construction workers on rooftops and scaffolds. It’s called Labor Law 240, or “the scaffold law”.

Tully School District will almost certainly be held liable to the fallen roof-repair man. Why? Because under New York Labor Law 240, the owner of a building is, in almost all circumstances, strictly liable for all worker falls from the building’s roof. The roof repair man should have been tied up with a lanyard or some other safety device, and apparently he was not. This is, generally, a clear cut violation of Labor Law 240.

A web article I stumbled upon jumped off my computer screen at me today. It was titled “Plaintiffs lawyers eyeing Marcellus Shale Work.” My first thought: “Gee, I am a New York personal injury lawyer located right in the Marcellus Shale zone, so how come I am not ‘eyeing’ the future Marcellus Shall Work”. Next thought: “Hey, that hydrofracking work will be dangerous, workers will get hurt, they will need New York personal injury lawyers to represent them, so gosh, maybe I should be ‘eyeing’ the Marcellus shale work”. Next thought: “Don’t want people getting hurt, and besides, it’s going to be messy for our environment up here, so thanks but no thanks”.

All those thoughts streamed through my brain in about 3 seconds, before I even got to the first word of the article. Then I read it. A personal injury lawyer out of Pennsylvania somewhere was quoted as saying that the Marcellus Shale drilling would cause “horrendous injuries” because of all the gas and liquid under high pressure carried through pipelines, stored in big tanks, and ejected underground at high pressure. Drill rigs are notoriously dangerous. Toxic gas leaks burn workers and gas rigs explode. Big tanker trucks cause motor vehicle accidents on narrow local roadways.

OMG! Parade of horribles. Well, he convinced me: the Shale gas drilling, or “hydrofracking” as it’s called, if it ever happens up here, will be good for the personal injury law business. Unfortunately, it probably will, if it goes forward, produce a fair number of serious injuries and deaths. And I am sure that many of the injured and the families of the dead will find their way to our law office since we are well regarded in the personal injury field and, I believe, the only law firm located in our area of the Finger Lakes that limits its practices almost exclusively to New York personal injury cases.

Further news reports indicate that the injured and killed worker were not employed by DuPont, as I had indicated in my earlier blog post, but rather by another company, an outside contractor. This means that a New York workplace explosion lawsuit against DuPont for failure to provide a safe workplace will not be barred by workers’ compensation law.

The welding equipment was apparently attached to an outside storage tank that had been taken out of service. The tank previously housed a chemical known as polyvinyl fluoride, or PVF, which is used as.a coating for solar panels.

Since the cause of the explosion is still unknown, a New York explosion lawyer would have to hire an explosion expert to investigate. From my experience handling explosion cases, I can say that this explosion must have been caused by some negligence on the part of DuPont of the supplier of the chemical or tank. Explosions like this just don’t happen. Carelessness and mistakes make them happen.

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