Central New York Injury Lawyer Blog

Should New York Cyclists Obey ALL Traffic Laws? Central New York Bicycle Accident Lawyer’s Opinion.

July 31, 2010 | by Michael Bersani

O.K., I have a confession to make. I am a law breaker! Yesterday, for example, I blew through at least 5 stop signs. Why?

Because I was on a bicycle. Good excuse? Not legally. And as a New York Bicycle accident lawyer , I usually recommend that cyclists strictly adhere to the New York vehicle and traffic law. But come on! Is a cop really going to pull me over for rolling through a stop sign when I am on a bike!? Of course not. And am I endangering others (as a motorist does) when I roll through a stop sign without stopping? Of course not. So who am I endangering, if anyone? Only me. And actually, I don’t’ think I am endangering even myself! Let me explain.

The street I live on, Maxwell Ave, in Geneva, New York, is four blocks long. Each intersection is controlled by four-way stop signs. The City speed limit is 30 miles per hour. So when I take off for a ride down Maxwell, I don’t stop at these stop signs (unless cars are coming). Instead, I slow down a bit, and look to my left and right (twice!) and just keep going. It’s safe! Cars are going slowly, you can see them from far away, and they have to stop no matter which direction they are coming from, so there is plenty of time to react to them.

New York Defective Machine Injury Cases Require an Engineer’s Help.

July 29, 2010 | by Michael Bersani

Let’s say a guy with a completely limp arm walks into my office. The arm just hangs there, lifeless. The guy will never be able to use that arm again. What happened? Let’s say his sleeve got caught in a machine, which drew in his arm, and that his arm was stuck in the machine for many hours while emergency response teams tried to extricate him. My client appears blameless. He was just doing his job the way he always did it, and the way his employer instructed him to do it. Why did the machine suck his arm in? Was it defectively designed? Was it improperly maintained? Why wasn’t there a kill switch he could reach? Were the warnings and instructions on it sufficiently clear? Was my client simply not trained right on how to use it?

These facts are similar to several cases I have handled, including one I just recently took in. And I can’t answer those questions I just posed, at least not yet. New York workplace injury lawyers like me need to rely on engineers to help us answer these questions. The main question, though, is whether the machine was “defective”. By “defective” I mean “unreasonably dangerous”, which is the standard for proving a New York product liability lawsuit. My client has a case only if the machine is “defective”, and the engineer’s main job is to determine whether it is defective.

I have already consulted with such an engineer. We are going to carefully examine the machine together. My expert engineer will then be able to tell me whether, in his opinion, the machine was defective. He will research the relevant standards for designing and building such machines during the time period when this machine was built, and also will research the standard warnings and instructions that should be placed on this kind of machine.

You Don’t Give Up Your Right to Medical Privacy Just Because You Bring a New York Personal Injury Lawsuit for Compensation for Your Injuries.

July 28, 2010 | by Michael Bersani

Insurance companies love to snoop. They want to dig up all the dirt they can on you. They think that if they know everything about you, they will eventually unearth something they can use to torpedo your case.

For example, both federal and New York State law give you a right to medical privacy. Just because you are injured in an accident caused by someone else’s negligence, and you sue them, doesn’t mean you give up that right. But many insurance companies act as if this gives them a right to find out everything about your medical history. Whether my client is the victim of New York medical malpractice, a slip-and-fall case, a car accident, or other type of New York personal injury case, the insurance company lawyer will almost invariably ask me for “unrestricted” medical authorization, which, when signed by my client, will give the insurance company lawyer the right to access any and all medical records regarding any and all treatment my client may have gotten from any medical provider from the beginning of the world to the end of the world!

But New York personal injury and medical malpractice law doesn’t give them a right to such broad authorizations. They can’t snoop! They have a right only to the medical records that are relevant to the parts of the body you are claiming were injured. For example, if you are suing for a broken arm, they have a right to see all medical records, both pre-and post-accident, for treatment for that arm. They can’t find out about your C-section, or your hemorrhoids, or about that depression you were treated for years ago!

Does New York Auto Insurance Cover Vehicular Assaults in New York Pedestrian Injury Cases?

July 26, 2010 | by Michael Bersani

The Syracuse Post Standard reported the other day that an SUV struck a Syracuse man “on purpose” after an argument on Westcott Street Tuesday morning. Fortunately, the injuries do not appear serious; the victim suffered only cuts to his arm and leg and was taken to Upstate University Hospital.

Here’s my blog topic for today: Will a New York State car accident insurance policy cover the man’s medical expenses or anything else for that matter? Answer: No! Why not? Because this is not a New York motor vehicle “accident” case. It is a New York motor vehicle ASSAULT case. An accident is a mistake. This was no mistake. It was deliberate. No liability or car insurance on God’s earth covers for motor vehicle assaults. The reason is simple: Insurance companies don’t want people buying insurance policies so they can go out and deliberately bowl people over, and force the insurance company to pay!

Even if the victim owns his own car, his own SUM (supplemental uninsured motorist) coverage won’t cover his injuries here, again because it was an “assault”, not an “accident”. To summarize: He can forget about auto insurance coverage of any kind!

Prescription Drugs and Driving — Can You Hold Legal Drug Users Liable in Your New York Car Accident Case?

July 25, 2010 | by Michael Bersani

Yesterday the New York Times reported that, while drunken-driving deaths are dropping, car-accident deaths caused by drivers who have taken legally prescribed narcotics, such as painkillers, sleeping pills, anti-anxiety medications, and other potent drugs, are increasing. Unlike with alcohol, no firm studies or guidelines exist determining what blood level of these drugs impairs driving. Yet the drugs, in many cases, clearly cause driving to deteriorate. They can impair motor skills, slow reaction time, and undermine judgment. For example, anti-anxiety drugs can make a driver less alert, and slower to react. Stimulants, on the other hand, can lead to risk-taking and diminished judgment. Drivers “on drugs” (albeit legal ones) often have many of the symptoms of drunk drivers — bloodshot eyes, slurred speech, or erratic driving.

So here’s my blog topic of the day: What happens, in a New York car accident lawsuit, if the defendant driver who you claim is at fault for the car accident, was “on drugs” (albeit legally prescribed ones) at the time of the collision? Can the fact that he or she took prescription drugs before the crash be used in Court to make out your case?

Answer: Yes, of course! Most prescription drugs that can affect driving have clear indications on them that they should not be ingested before driving or using machinery. And besides, common sense dictates the same. The motorist who struck your car should have known better, and had a duty to either refrain from using the drugs or refrain from driving. So it is no excuse that the drugs taken by the driver, who, say, swerved into your lane, were “legal”.

How Do You Calculate A Statute of Limitations on A New York Legal Malpractice Case?

July 23, 2010 | by Michael Bersani

When a client brings a potential New York legal malpractice case to me, one of the first things I do is try to calculate the statute of limitations (the last day the lawyer can be sued). I say try because this is not always easy in legal malpractice cases. And that’s what I am going to blog about today.

Here’s the easy part: The statute of limitations is always three years. Here’s the hard part: When does the three-year period start running? The legalese answer is, “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (Ackerman v. Price Waterhouse, 84 N.Y. 2d 535). But what does that mean? In most cases, it is the day the lawyer made the mistake (committed malpractice), but not always. Some of the cases say that the damages due to the malpractice need to be “sufficiently calculable” for the clock to start running. But “sufficiently calculable” is not always black and white. There are grey areas. That’s why we don’t always know what a court will find to be the “accrual date” (start date) for the three-year period.

Does it matter when the client found out about the malpractice? Example: A client consults a lawyer about what he thinks is a great lawsuit, but the lawyer tells him (wrongly) that he has no case. More than three years later the client consults another attorney who says, “gee, that was a great case, but your statute of limitations on it expired about a month after you saw that first attorney. That first attorney should have filed suit for you and you would have gotten a million-dollar recovery!” Does the three-year statute of limitations bar the client from suing the first lawyer, even though the client did not know he had been malrpracticed until after the three-year period had run?

Why Do New York Foster Care Abuse Lawyers Sue the County?

July 22, 2010 | by Michael Bersani

Every year I give a lecture to other New York accident and personal injury lawyers across New York State on the issue of “Municipal Liability”. Before my lecture, I review the recent case law in New York on this issue. This is a complex topic. Suing New York municipalities (its Counties, Cities, School Districts, Villages, Towns and other local governmental units) is tough to do. The government has given itself all kinds of special defenses to lawsuits for injuries it causes through its negligence and wrongdoing.

Every year when I read the new cases, I find at least one, and usually several, cases of foster parent abuse, mistreatment or neglect of a foster child. What do these cases have to do with municipal liability? Usually, the County and its Department of Social Services are sued for having negligently placed the foster child in the foster home where abuse was likely to occur, or for having failed to properly monitor or supervise the foster home.

These cases are very tough for me to read. I love children (I have five!) and feel very protective of them. This year I read the case of Adam H. v. County of Orange, where the mother of a foster child sued Orange County and its Social Services Department when her four infant children were sexually abused while in foster care. All four of them!

New York Personal Injury Lawyers — A Brotherhood of Justice Seekers

July 19, 2010 | by Michael Bersani

Today I got a call from a fellow New York personal injury lawyer in Buffalo, New York. He is representing the widow of a firefighter who died while fighting a fire. The case he is building revolves around some code violations by the homeowner and some firefighting rules not heeded by fellow firefighters. The widow is obviously furious that her husband had to die because of other people’s mistakes, and she wants justice.

The widow’s lawyer had read about a case I had won on appeal a few years ago. News of that case , Prince v Onondaga County, had spread like wildfire when I won it because, I was told, it was the first time in the nation that a Court had ruled that an emergency responder could been held liable for failure to follow the “incident command system”. The incident command system is what emergency responders, such as firefighters, are supposed to follow when they arrive to an emergency scene. The command system is headed by an “incident commander”, usually the first officer-level firefighter who arrives on the scene. All orders and information flow from the incident commander out to the various units of the firefighter team. If individual firefighters start acting on their own without following this system, it can lead to disaster. The left hand does not know what the right hand is doing. That’s what we allege happened in Prince v. Onondaga County.

Coincidentally, in both my case, and in the Buffalo case, the firefighter died after a floor, which had been compromised by the fire, gave way, causing the firefighters to drop down into the basement where they were trapped in the fire and smoke with no escape. I can hardly imagine a worse death!

New York Personal Injury “Loss-of-Consortium” Claims: What Are They, What Are They Worth, and Why Do They Sometimes Lead to Trouble?

July 18, 2010 | by Michael Bersani

What is a “Loss-of-Consortium” Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.

Wew, that was a mouthful! Let me try to break that down.

Although the uninjured spouse of a New York accident victim has not suffered any “physical” injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal “services” that the injured spouse would have continued to provide but for his or her injury. The “services” lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of “loss of consortium” is rooted in traditional principles of “man and wife”, it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.

Facebook, Social Media and New York Personal Injury Cases

July 17, 2010 | by Michael Bersani

I recently read a blog post by a New York criminal defense attorney, Nicole Black, about a juror’s misconduct in a criminal case. The juror had sent a Facebook “friend” request to a witness while the trial was pending. (Jurors are supposed to remain absolutely objective and not communicate with any witnesses or parties during trial). The witness later testified that he had no idea who this “friend” was, and ignored the request. The Court ruled “no harm, no foul” and refused to reverse the verdict based on the misconduct.

But the story makes an important point about today’s juries. Social media, including Facebook, are a relatively new phenomena and courts, and lawyers, continue to struggle with how to deal with them. While I know that the judge will instruct the jurors that they are not to google or use social media or any outside sources too “look up” the witnesses and parties, I am convinced that many jurors disobey these orders.

That’s one reason why the New York personal injury lawyers at Michaels Bersani Kalabanka make sure our clients are aware of their “exposure” on Facebook and other social media. What would a jury think if they saw your Facebook page? Would the jury see that photo of you dancing and think it was taken AFTER your injury, when in fact it was taken before? Would the jury see that photo of you partying with your friends and draw negative inferences about you? These are serious concerns to a personal injury lawyer who wants to present his client in the best possible light to the jury.