Central New York Injury Lawyer Blog

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.

Central New York Tort Lawyer: “Avandia” Scandal Demonstrates How Product Liability and Defective Consumer Goods Lawsuits Protect Americans

July 13, 2010 | by Michael Bersani

So you say you don’t like tort lawyers, product liability lawsuits, or personal injury cases? Well, guess what? You need them, as demonstrated (once again) by the headlines in the New York Times!

The New York Times reports that, as early as the fall of 1999, SmithKline Beecham, maker of a popular diabetes medicine called “Avandia”, found out, through studies it conducted, that the drug posed significantly greater cardiac risks than other leading diabetes medicines. So what did they do about it? Let’s see how smart you are with this multiple choice test: Did SmithKline Beecham: (a) stop production of Avandia; (b) call the FDA and informed them; (c) do more studies to make sure; or (d) bury the study, tell no one, and continue to churn out huge profits on the sale of the dangerous medicine.

If you guessed “d”, you get a gold star, not only for getting the right answer, but for understanding how corporate America, with its single-minded profit-lust, works.

Fleming, New York Car / Bus Cross-Over Collision Demonstrates Power of Head-On Collision Force

July 8, 2010 | by Michael Bersani

The Cayuga County Sheriff reports that yesterday afternoon a car crossed over into the oncoming lane of traffic and collided into a bus carrying disabled people on Route 34 in Fleming, New York (just a few miles south of the Central New York personal injury llaw office of Michaels Bersani Kalabanka, P.C., on Route 34 in Auburn, New York). A 73-year-old female passenger was killed, and 15 others were taken to hospitals. The collision flipped the bus over onto its side, causing lots of injury to the passengers.

From my years of experience as a Central New York car accident lawyer handling head-on collision cases, I know that this type of car accident, more than t-bones, or rear-end collisions, is especially terrifying. The seconds before the collision seem like an eternity because you can SO see it coming! Perhaps the bus passengers here were lucky enough to have avoided this terrifying scene. But the impact also is usually horrific; twice as bad as with any other kind of automobile collision. That’s because the combined speed of the two vehicles hurling against each other doubles the force exerted against the vehicles, and the people inside them..

Another anomoly of cross-over collisions is that the vehicles don’t usually meet exactly at center point, but rather the left sides of the front of each vehicle tend to meet. And since the left side is where the drivers are located, this makes impact even worse for the drivers. Also, the off-center impact can cause a vehicle to spin or flip, which might explain why the bus flipped in this Flemming, New York accident.

Central New York Accident Lawyer Gives Hiker Safety Tips

July 6, 2010 | by Michael Bersani

Yesterday I blogged about New York personal injury liability for a Park owner’s failure to properly maintain trails and hiking areas, and for failing to place appropriate warnings signs. What sparked off that blog entry was a tragic hiker accident in Letchworth State Park in which a 19-year old hiker fell to his death into the gorge.

Now let’s discuss common sense safety rules for hikers that can prevent many tragedies on the trail. A hiker is, in the first instance, responsible for his or her own safety. A safe hike begins before the hike. Proper preparation and planning, including making a pack list, which should always include: proper clothing, footwear, appropriate gear, a cell phone, a compass, or a gps navigator, plenty of water, food and a first aid kit.

Learn about the area you are hiking ahead of time. Take recent guidebooks and maps of the area with you. Check weather forecasts before you set out. Do not attempt a hiking excursion that is beyond your physical abilities or health limitations. Let friends or family know where you plan on hiking and when you plan on returning. Bring lots of water on a hot day.

New York Hiker Accidents: Can the Park or Land Owner Be Held Liable under New York State Personal Injury Law?

July 5, 2010 | by Michael Bersani

Letchworth is one of several upstate New York State parks. It is the deepest gorge anywhere east of the Rockies and is sometimes called “the Grand Canyon of the East”. I personally have spent many splendid, sun-drenched days hiking its trails, and driving or bicycling around its “rim” to take in the spectacular view. It is “gorge-ous”!

But unfortunately, it can also be deadly. Case on point: Local news media sources report that a 19-year old hiker died after suffering a 300-foot fall into the gorge at around 9:30 p.m. this Saturday. No other details are available. What makes this tragedy (only 19 years old!!) so, well, tragic, is that it could almost certainly have been avoided.

Although hiking, especially in State Parks, is a healthy, enjoyable good-weather activity, two human failings (or a combination of them) cause almost all injuries or death on the trail: (1) The Park owner’s failure to properly maintain the trails and area and to place appropriate warnings signs and (2) hikers’ failure to follow common sense safety rules. In today’s blog post, I will talk about number (1), and in tomorrow’s, number (2).

Fourth of July Safety Tips from Your Central New York Personal Injury Lawyer

July 3, 2010 | by Michael Bersani

Fourth of July, Independence Day, or whatever you want to call it. It’s here! And in New York, where private fireworks are illegal, many citizens are pitted against the law. I personally spend the evening of the Third on Otisco Lake, which is illuminated like a roman candle by private fireworks displays, though I don’t buy or handle fireworks myself (sounds kinda corny, but I like to obey the law!)

If you ARE going to “do” fireworks, here some fireworks safety tips from your Central New York injury lawyer:

Use fireworks outdoors only.

New Law in New York Will Make Cars Passing Cyclists Give Them a “Safe Distance”

July 1, 2010 | by Michael Bersani

I am a regular reader, and admirer, of Elmira bicycle accident attorney Jim Reed’s New York Bicycle Accident Lawyer Blog. Jim is always one of the first to post updates on bike equipment recalls and changes in New York laws that affect cyclists. So I was not surprised to read Jim’s blog post today in which he notified his readers, and me, about a new pro-cyclist New York bill (called “Merrill’s Law”) that is making its way through the legislative process in Albany right now. According to Jim, with a little luck, it will become law this November. The new law will require motorists to keep a “safe distance” from cyclists while passing.

Well gee, about time! Until now a motorist could legally bring his car within inches of your bike and, as long as didn’t sideswipe it, he was not violating the law. That makes no sense! And as Jim and I both know from our years of representing New York bicyclists injured by cars, it makes for bad injuries, too. So it’s a good thing the law is changing (we hope!).

This new law reminds me of a story my brother Tom Bersani told me. He, like me, is an avid cyclist. He took a trip to Italy a few years ago and brought his bike along. Under Italian law, motorists are required to keep a distance of 6 feet or so from bicyclists. As he was climbing a long, winding mountain road on his bike, a long line of cars trailed him. The motorists could not safely pass Tom while giving him the mandatory 6-foot distance, so they stayed behind him. When the road finally straightened out, Tom noticed that several car windows began rolling down as they passed him. He expected the Italian equivalent of a one-finger salute, or some Italian profanities to be hurled at him for slowing them down. But instead they shouted, “bravo, bravo, bravo!” They were congratulating him on his hill-climbing stamina! I guess Italians really love cyclists!

Auburn New York Dog Bite Case Perfect Example of New York Dog Bit Liability

June 28, 2010 | by Michael Bersani

The Syracuse Post Standard reported today that an Auburn, New York police officer suffered muscle wounds and injuries requiring stitches after a pit bull attacked him Sunday night. The officer had walked up a driveway on East Genesee Street to investigate some smoke coming from the back (it turned out to be a pit fire), when a large pit bull charged at him from the porch with such fury that it broke free of its tether. The dog sunk its teeth into the officer’s right arm and right upper leg before the dog’s “dog sitter” pulled the dog free of him.

After years of handling Central New York dog bite cases, I read newspaper articles like this somewhat differently than most people. I “analyze” the case from a “liability” perspective as I read. It’s a professional hazard!

But now that I am on the topic, let’s talk about the liability issues in this case. Is the dog owner, who was not home, liable to the officer? What about the dog “sitter”? Is anyone liable? After all, the dog broke free of its chain, so the owner, or the sitter, had at least taken the precaution of tying the dog up. Does it matter whether they had tried to be careful in securing the dog?

Federal Law Regarding Compensating Wrongful Death at Sea Is, Like New York’s Wrongful Death Law, Unfair and Harsh

June 25, 2010 | by Michael Bersani

Laws should be fair and just, but are sometimes unfair and harsh. Think of the laws that allowed slavery, and later the Jim Crow laws. Think of the Nazi laws that allowed Jews to be arrested and deported or worse just for being Jews. Or think of the Roman laws that allowed Jesus to be crucified. All these laws were perfectly “legal” and they were carried out “by the book”!. So don’t think that just because it’s the law, it’s right.

Those, of course, are extreme examples of unfair, harsh laws. But lesser examples of harsh, unfair laws abound in our law books even today.

The families of the 11 workers who died in the Deepwater Horizon explosion are now discovering how unfair and harsh one of our laws is. In their lawsuit against BP for the loss of their loved ones, they are limited, by a 90-year old Federal law, known as the Death on the High Seas Act, to “pecuniary loss” compensation, which consists mostly of lost income stemming from their loved one’s death. They have no right at all to claim compensation for their grief, loss of care, comfort and companionship, and emotional suffering.

Intoxicated Motorist Who Caused Syracuse Car-on-Motorcycle Crash Gets Jail Time.

June 23, 2010 | by Michael Bersani

The Syracuse Post Standard reports that a Baldwinsville man got a one-to-three year jail sentence for seriously injuring two motorcyclists last fall in a Syracuse, New York car-on-motorcycle collision. He was driving through the intersection of Hiawatha Boulevard and State Fair Boulevard in Syracuse with a .08 blood-alcohol count when he turned left into an oncoming motorcycle. The driver of the motorcycle ended up having the lower part a leg amputated. The motorcyclist’s passenger also suffered leg and back injuries in the crash, and still walks with a cane.

From my experience as a Syracuse New York motorcycle accident lawyer, I can tell you this is an all too common car-on-motorcycle crash in three ways: (1) the car turned left in front of the bike, violating his right-of-way (a very common cause of car-on-bike crashes); (2) the motorist clearly failed to see the motorcycle (also very common); (3) the motorcyclist lost a leg (a common injury in motorcycle accident cases – we represented a cyclist last year who had to have a leg amputated as well); and (4) alcohol was involved (again, far too common).

What are these New York motorcycle accident victims’ rights (besides seeing this guy go to jail)? They both have a strong claim under New York motor vehicle accident law for compensation from the driver, and from his insurer. The problem is this: I can almost guaranty you that his insurance policy won’t have a high enough limit to fully compensate these horrific injuries. And the motorist himself, now in jail and with no income, won’t be able to contribute a dime. So these Syracuse motorcycle accident victims will probably just remain under-compensated (unless they have something known as “SUM” coverage in their own motorcycle insurance policy, which I will discuss in a later blog). Unfortunately, this too is all too common.