As the presidential election campaign heats up, I thought you might want to know where we New York personal injury lawyers stand. Do we favor democrats, like Obama, or Republican like _______ (fill in the blank)?
I won’t give you a bunch of crap about us being impartial. We favor democrats hands down. Why? Among other reasons, because many republicans are in favor of
Yesterday 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.
Like 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.
Just read a great article in the New York Times about developmentally disabled people in New York State care, or in the care of not-for-profit homes charged by the State to care for them, who die for “reasons other than natural causes”. Check out the stats: One in six such deaths in the past decade have been chalked up to “unnatural” or “unknown” causes. Other states, like Connecticut and Massachusetts for example, count only 1 in 25 such deaths.
The Times, God bless their soul, undertook its own analysis of death records, to find out just what these poor folks were dying from. What they found is very disturbing: Many of these deaths result from errors and preventable deaths, such as drowning in bath tubs where the disabled were not supposed to be left alone in the tub, or choking on food when they were not supposed to be left alone with food; or falling down stairs when they were not supposed to be navigating stairs on their own. Some of the mentally disabled simply ran away, repeatedly, until they died out on their own.
The Times further found that these preventable deaths rarely resulted in measures being implemented to prevent the same mistakes from recurring.
Kids have a known propensity to fool around, sometimes dangerously. Some kids go beyond mere fooling around, and bully or hit other kids. All these childish behaviors are dangerous, which is why God invented adults. Yes, we adults were put here on earth to keep kids from killing and maiming each other! (Unfortunately, some adults are like children, but that’s another story. . . )
When you, as a parent, turn your sweet little Johnny over to the school district to receive his education, you also hand over to the school, to a certain degree, parental responsibilities. The school, in the eyes of the law, steps into the shoes of a parent, which means the school has a duty to provide proper supervision and control of your child and all others. If the school does not properly supervise its students, the school district can be sued and held liable for the harm caused.
But not all harm that befalls your child at the hands of other kids at school can, in the eyes of the law, be blamed on the school. The school is not an insurer of your child’s safety. The school must act responsibly in fashioning sound safety rules, and in supervising its students, and it must ensure that the rules are being implemented by teachers and other staff. But it cannot prevent all injuries caused by other kids, especially unexpected and unforeseeable injuries.
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.
News reports say that a driver carrying 3 passengers in Sennett crashed after swerving to avoid a deer. A 27-year-old Auburn female passenger was killed and four others were injured in the collision. The car struck a culvert, rolled over several times, and ejected three of the passengers. It seems that all of the passengers suffered fairly serious injuries.
These were young people — late teens and early twenties. As the father of several kids that age, I can say that the parents are living my worst nightmare.
Finding enough insurance to fully cover all the injuries will be a challenge. To have the best shot at getting sufficient coverage, the passengers or their families should promptly retain a New York car accident lawyer to fully represent their interests, which includes investigating all potential insurance coverage.
A house violently exploded in Whitesboro, Oneida County today, killing an elderly woman, and strewing house debris in all directions. Neighbors say they smelled gas before the explosion. State officials, and the National Grid, are investigating the cause of the explosion.
From my experience representing victims of house explosions caused by gas, including a 2005 house explosion in Oswego County that injured 9 and killed one resident, this appears to be a typical gas-fueled explosion. Gas explosions in homes are typically violent, demolishing the home and strewing debris many feet in all directions.
From a liability perspective, the gas provider, or those who installed the gas-fueled appliances, or, if the house is rented, the landlord, may be held liable for the explosion and resulting injuries or death. It all depends on what went wrong. Did the resident receive proper warnings about the smell of gas, what it meant and what to do? Was the gas-odor properly added and mixed into the gas? Where did the leak start, and how? Were the gas-fueled appliances installed correctly?
The Syracuse Post Standard reports that, after the fatal series of New York bus accidents this year (see my prior blog posts below), New York State troopers, and Department of Transportation officials, started cracking down on bus safety violations using, as a weapon of choice, surprise roadside inspections. The result? 530 bus drivers and 460 non-compliant buses have been removed from our roads for safety violations. Twenty two buses were inspected within Onondaga County alone, of which three were removed. Two of these were Greyhound buses.
What kind of violations are we talking about? Minor things? Hell no. How about one bus with 20 percent of its brakes out of adjustment. Or a driver failing to keep a week’s worth of driving records (these are required to show that the driver has taken legally mandated “times off” from driving, which avoids the risk falling asleep at the wheel).
Does this kind of law enforcement work? You bet. The crackdown costs the bus industry money. It becomes cheaper for them to simply comply with the safety rules. It no longer “pays” to cut safety corners. And you and your family are safer. Which of course means that New York motor vehicle accident lawyers like me get fewer bus accident cases, which is absolutely fine with me, thank you.
http://www.baltimoreinjurylawyerblog.com/2011/10/should_lawyers_be_required_to.html
I ran across a fellow personal injury attorney’s blog post pointing out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. When you think about it, it is amazing there are no laws on the books in other states requiring attorneys to carry malpractice insurance, especially personal injury lawyers who handle multi-million dollar claims for their severely injured clients. Can you imagine surgeon not carrying malpractice insurance? Unheard of. Lawyers make mistakes, too, and their clients should be protected from that, just as doctors’ patients are.
I am not sure whether we need a law that all New York lawyers carry malpractice insurance. But I do think we need, at the very least, a law requiring full disclosure. I think all uninsured New York lawyers should be required to disclose, on their letterhead or in some other prominent place, “we do not carry legal malpractice insurance”. Why? Because most clients see lawyers as “rich” professionals, and assume they have adequate insurance coverage, just like doctors do. If they knew the lawyer they were about to hire was “bare”, they might decide to choose another lawyer who is covered.
Central New York Injury Lawyer Blog
