chairlift.jpgAs an avid skier, I was distraught to read about another terrible chairlift malfunction at Sugarloaf Mountain in Maine. The chairlift suddenly started moving swiftly backward. Seven skiers were pretty seriously injured, some of them because they removed their skis and jumped to “safety” from the chairlift, fearing that they would be more severely hurt if they wound up getting spun through the chair housing unit at the bottom. More than 200 people were later evacuated from the chairlift over a 90-minute period.

This isn’t the first time a chairlift malfunctioned at Sugarloaf. In December of 2010, a chairlift cable derailed, dropping 5 chairs violently to the ground. Five adults and three kids were injured in that accident. That time Sugarloaf was at fault for negligent operation of the lift. Sugarloaf paid out-of-court settlements to the victims.

This time the manufacturer of the chairlift – Partek Ski Lifts — is to blame. Engineers believe a design flaw prevented a safety system from locking the chairlift in place after a mechanical failure caused it to begin moving in reverse.

snowy blizzard.jpgDid you see the recent article in the Syracuse Post Standard about weather-related motor vehicle death statistics? Statistics can be pretty boring. But I found this pretty interesting.

The new study shows that SNOW, SLEET AND FREEZING RAIN cause more than 800 vehicle-related deaths each year in the U.S. And one of the highest snow-related death areas was – you guessed it – Upstate New York’s “snow belt”. Hey, if Syracuse basketball can’t be number 1, at least Syracuse is number 1 at something . . . 🙂

Lake effect snow is literally deadly. Not surprisingly, the intensity of snowfall correlated strongly with the number of vehicle deaths. Also not surprisingly, New York City has a much lower rate of snow-related motor vehicle deaths than Upstate. Onondaga County and Oswego Counties had the highest rates in the state.

car accident.jpgLet’s say you get into a car accident in New York State and it was the other guy’s fault. But when the police officer shows up and “investigates” he determines it was your fault. And he says so in his accident report. You sue the at-fault driver for your injuries. Can the cop’s police report come into evidence against you? Can the cop testify it was your fault?

The answer generally is, no and no. Why not? The conclusions in his report that it was your fault are “hearsay”. Further, it’s for the jury to determine whose fault it was based on the evidence. Letting the cop testify about whose fault it was would unduly influence the jury. The cop can testify only about the evidence he found at the scene, for example skid marks, the damage to the cars. He can also generally testify about what the PARTIES said to him, but not about what non-party witnesses said to him. That would be hearsay, too. Those witnesses must be brought into court to tell the jury what they saw and must be subject to cross-examination. The cop can’t tell the jury what they said because then the right of the parties to cross-examine those witnesses would be lost.

Some of these concepts were explored in the recent case of Watch v. Gertsen. In that case, the cop determined, after talking to the participants in the accident, that two motorcyclists who collided into the back of a car were at fault for following too closely. In the personal injury trial, the trial judge let the cop testify about his conclusions in the report. The jury’s verdict aligned with the cop’s conclusions. But the appellate court reversed, finding that it was error to allow the police officer to testify about fault from the accident report. And rightly so. What good is a jury trial if a cop is allowed to say whose fault it was? That’s the job of the jury, not the cop.

wrestlers.jpgA new case demonstrates how tough it is to sue for kids’ sports injuries.

Normally a participant in a sport – even a child – assumes the risks inherent in the sport and therefore can’t sue to recover for injuries. There are some exceptions to the rule. For example, You don’t “assume the risk” of a danger you would not normally expect to find in the sport (example: a puddle on an indoor basketball court).

So here’s a summary of that new case: In Cvijenovich v Beacon Kids Wrestling Club, a child wrestler’s opponent suddenly did “an illegal or unreasonably dangerous wrestling move” causing him injury. An illegal or dangerous move like this is not covered by the “assumption of risk” doctrine because no one joins a wrestling club with the expectation that illegal, dangerous moves will be used. Participants assume the risk only of legal moves.

doctor bad.jpgCame across a great article in the Observer. Here’s my rambling summary:

The insurance industry has convinced more than half the states to pass medical malpractice “tort reform” legislation. Their tactics? Cash-in-fist lobbying plus promises that restricting medical malpractice suits would cause doctors’ insurance premiums to plummet. This would in turn lower health care costs and improve healthcare.

The only problem is it turns out the insurance lobby sold us a bill of goods. Every study ever done since tort reform (I have read most) was enacted has shown little or no gains in the area of insurance premium reduction or medical care cost reduction.

jail.jpgYes, even convicted criminals have rights. Including the right to bring a New York personal injury or medical malpractice claim. An inmate has a right to competent medical care while under the custody of the prison authorities. If the prison medical team screws up, and causes him harm, he can sue for compensation. At Michaels & Smolak we get letters from inmates at the Auburn State maximum security prison (just around the corner from our main office!) all the time. We reject 99% of those cases either because there was no real malpractice, or because the injuries are too minor to bother with a lawsuit against the State. But every once in a while an inmate has a legitimate claim for real serious injuries.

Case in point: In Black v. State of New York, a prison doctor, after examining an inmate complaining of cervical neck pain, and after reviewing an MRI, correctly concluded he was suffering from “spinal stenosis“, a condition in which the narrowing of the spinal canal exerts pressure on the spinal cord, and myelomalacia, a softening of the spinal cord. The physician correctly noted the condition was serious and even dangerous, and justified an expert consultation, but did not realize that it required immediate emergency surgery to prevent paralysis. While awaiting approval for a neurological consultation, the inmate re-injured his cervical spine when he fell in his prison cell. The inmate ended up paralyzed from the chest down. Timely surgery would have prevented this from happening.

The Appellate Division, Fourth Department (Rochester, NY appellate court) recently upheld the Court of Claims’ $15 Million medical malpractice verdict on behalf of the estate of the now deceased inmate.

just because you did it.pngI came across this lawyer advertising billboard on the web and couldn’t convince myself NOT to post it on my blog. So now I have to justify posting it. I am going to somehow tie this sign into New York personal injury stuff. Just wait and see!

When you think about it, the sign is not just funny, or a sad statement about sleazy lawyering, it is actually true. You may have done the act you are accused of doing, but nevertheless be “not guilty” of the crime for a variety of reasons. For example, Bob Marley may have shot the sheriff, but if it was in self-defense (or if he was insane, or if the gun went off by mistake) there may be no “crime”.

When deciding whether a defendant committed a “crime”, the law looks not only WHAT he did but WHY he did it. What was going on in his head as he did the act? That’s what lawyers call “the mens rea“, i.e., the mental state. If the defendant kills someone deliberately with premeditation, that’s a more serious crime than if it was just careless. And if it was in self-defense, then it was no crime at all.

doctor bad.jpgIf you wanted to hire a driver to drive you on a long trip, would you want access to an easily searchable website where his and other licensed professional drivers’ traffic convictions and accidents were posted?

If your answer is yes, then safety is important to you. And I assume that, if you were going to have major surgery, you would also like an easily searchable website that gives you details about your surgeon’s medical malpractice records, hospital affiliations, and other background information.

Right now, New York State has such a website. It was mandated by a year 2000 Statute, which was passed in response to several high profile medical malpractice failures by doctors with bad – but not easily discoverable – track records.

Reid.jpgIt’s all over the news: Seventy-four year old Senate Minority Leader Harry Reid’s power workout “backfired” on him. Literally.

In a freak accident, the senator was using an “elastic exercise band” to do some kind of exercise in his bathroom, with the band attached somehow to his shower door. As he “flexed”, the band “snapped” and sent him flying across his bathroom floor where his face met some cabinets. He suffered such severe facial injuries that he risks losing the sight in one eye. He also broke a number of bones around his right eye and four ribs. See photo!


icyroad.jpgI just read about a spectacular rollover crash on Interstate 690 in Geddes, NY (near Syracuse) a few hours ago. Fortunately, there were only minor injuries.

I don’t usually blog about local accidents, but I did want to make folks aware that – even though the heavy snow we have been getting is partially to blame for this kind of car accident, New York car accident lawyers routinely bring these kinds of claims successfully against the drivers of the out-of-control vehicles. Yes, insurance defense lawyers often raise the “act of God” defense to weather related accidents. But that defense usually works only where the driver is totally blameless, which is hardly ever the case.

Always remember that you, as the driver, have an absolute duty to your passengers and to other motorists or pedestrians to KEEP CONTROL OF YOUR VEHICLE. Usually, “the road was real icy” or “I hit a snowy patch” are not valid excuses in Court. The only exception usually is where there was no ice or snow anywhere on the roadway before you hit a patch. If you already know there is snow and ice on some areas of the roadway, you have a duty to drive at a speed and in a manner that allows you to control your car even given those conditions.

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