Last week I gave a lecture to more than 800 fellow New York personal injury lawyers by Zoom. The hour-long lecture (followed by a 20-minute question-and-answer period) was titled, “How to Defeat the Governmental Immunity Defense”. You can watch a short clip from my lecture here, or you can, if you are a lawyer interested in this area of the law, watch the entire presentation here.
I used power point to guide my audience through the relevant case law and the “do’s and don’ts” of defeating the defense. Thanks to my legal assistant Becky, the accompanying power point presentation was attractive, informative, and well received.
The lecture was by zoom rather than in person because of COVID. I really missed delivering to a live audience. But the advantage was that I got in front of 800 lawyers from all over the State in real time in the same hour. Usually, I’ve got to travel around the State to deliver to rooms of a few hundred at a time.
As soon as my lecture was done, I was bombarded with emails from lawyers seeking advice on their personal injury lawsuits against New York’s governmental entities (State of NY, cities, towns, counties, school districts, etc.). I also received plenty of phone calls.
The complexity and difficulty of suing a governmental entity in New York for personal injuries is literally “aMAZing”, that is, it is like navigating a maze. At every turn, there are barriers or hurdles designed to block an injured plaintiff’s access to court. My lecture focused on three of the most significant hurdles: Proving that the government was acting in a PROPRIETARY capacity rather than a GOVERNMENTAL capacity, proving the government employee had a SPECIAL DUTY to the injured plaintiff, and proving that the governmental employee violated a MINISTERIAL DUTY or did not exercise “DISCRETION” in making the decision that ended up harming the plaintiff. Those are three major hurdles. And complicated ones. I gave my audience tips on getting past those barriers.
Unless you are a New York personal injury lawyer, all this is Greek to you. But even if you are a New York personal injury attorney, this stuff is not easy.
I am glad to have developed somewhat of an expertise in this complicated area of the law. I am glad to be able to provide guidance to my brethren personal injury lawyers on this and other issues. But I am not glad that the law is so difficult on injured plaintiffs when it comes to suing government entities. Many deserving innocent victims are left without a remedy.
But that’s something I am trying to help fix. I already blogged about my next endeavor: I am writing an “amicus curiae” brief to help change New York law so that folks who are injured by negligent law enforcement (as well as others who are directly harmed by governmental employees) get a right to their day in court.
Don’t get me wrong. I do not believe that everyone who is injured by government negligence should be able to sue. I realize we have an interest in limiting our government’s liability to keep our tax bills in check. But there has to be some balance to this. Right now, in my opinion, the pendulum has swung too far toward protecting negligent government agents from lawsuits. Terrible injustices result, such as the one I blogged about recently involving Jesus Ferreira. I think we need to swing the pendulum back the other way a wee bit to give the most deserving victims their day in court.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.