New York Injury Law Blog

A “Strip Search,” which involves the compulsory removal of clothing pursuant to an order by some official, is a degrading and humiliating experience.  Regardless of the circumstances, this experience, in and of itself, can leave an indelible impression on the affected individual.

Most often, the issue arises when police officers are involved.  The guidelines established by the New York City Police Department would appear to treat the issue with requisite seriousness, and seem to establish certain safeguards to see that a “Strip Search” is conducted only under proper circumstances.   As is so often the regrettable case, these guidelines are either ignored or unknown  to many officers, with unfortunate results.

A recent case decided by the United States Supreme Court (Safford Unified School District v. April Redding**) declared that students may be “strip searched” by school officials “…only in the most extraordinary situations.”    The bar for valid strip searches in schools was thereby raised..

If anyone is subjected to a “Strip Search”, and if is unclear in the least to that person why he or she was subjected to that humiliating procedure, it is important to contact an experienced civil rights attorney to discuss the circumstances.  Even if you were arrested or issued a summons, the “Strip Search” itself may have been uncalled for and inapropriate, and may be the subject of a lawsuit by the victim of such a search.

**http://www.oyez.org/cases/2000‑2009/2008/2008_08_479

Your choice of an attorney to represent you in a case will have an effect on you that may be hard to imagine at the time that you make the choice.    After all, locating an attorney can be as quick as finding a name in the telephone book or catching an ad on TV. But beware! You will most probably have to live with that choice for a long time, and the wrong choice can be as painful to you as a bad toothache–except that your choice of a lawyer goes on and on.

Without question, the very best source for choosing an attorney is by way of a friend or relative’s recommendation. Even better is if you used an attorney yourself previously and were very satisfied. Nothing can beat the recommendation of a satisfied and happy former client. The MOST common complaint against lawyers is that they either do not return phone calls, or the client cannot get through to their lawyer. See what the experience of your friend or relative was in this regard.

Often, however, it is not that easy. You may not be able to find someone who either experienced the same problem you are trying to deal with, or may not have been satisfied with the lawyer they used. What then?

First, what NOT to do. Do not even think about hiring an attorney whom you have never met before but shows up at your door unannounced. He may have heard about your accident from some source and decided to “chase” after your case. This is illegal and unethical. Just imagine that if an attorney, sworn to uphold the law, shows such contempt for the law and the standards of his profession, what kind of treatment you can expect ! And even more so, never, ever agree to meet with an attorney recommended by an individual you have never before met but gives you a lawyer’s card in the hospital or at an accident scene. This, too, is blatantly illegal, and attorneys that must resort to this type of solicitation are to be shunned, if  not prosecuted.

Today, however, there are many legitimate sources to find, evaluate and finally choose someone to represent  you in what could be one of the most important decisions you will have to make. Advertising is legitimate. Certainly one of the best sources is the use of the internet which affords you the opportunity to find out much more about an attorney you are thinking of hiring then was ever available in the past. Websites are good  beginnings, and you should never hesitate to ask an attorney questions about himself or his background. A little careful screening in the beginning can avoid a lot of heartache later.

Posted by New York Personal Injury Attorney Steve Orlow

This question is not as simple as it may sound.   Under most circumstances, if you suffer an injury and another person shares some or all of the blame, then a lawsuit against that individual seems clearly your right.   It does not necessarily work that way in motor vehicle accidents in New York State.

New York State has made a tradeoff.   Regardless of whether or not and individual is responsible for a motor vehicle accident that occurred, that individual will be entitled to payments for his/her medical costs and lost  wages, and some other expenses as well.  For  passengers in vehicles, these expenses will be paid  by the insurance company of the vehicle in which you find  yourself.   Since “fault” is not an issue, these payments are known as “NO FAULT” coverage.

However, in return for this guaranteed payment for medical expenses and lost wages, the traveling public had its right to sue curtailed !   A person may only sue if the injury he/she sustained is a “SERIOUS INJURY”.

What is a “SERIOUS INJURY”?   That is an injury that is defined by the statute.  It can be specific: any fracture (broken bone) meets the requirement–or as lawyers say, it meets the “threshold” permitting a person to sue.  More troubling, the acceptable injury may be much  more vague (see below).   What is clear is that injuries that are passing in nature, and do not involve significant permanent damage, will probably not meet the “threshold”.

Here’s the problem. If a person sues regardless of the seriousness of his/her injury, and the party being sued asks the court to throw out the case  because the injury is not serious enough, the court has the right to “dismiss” the case if the judge decides the “threshold” is not met..   And this can happen a year or two after the case has begun, at which point a significant amount of time, effort and expense has been invested in that case, which then is all lost !

Bringing a lawsuit always requires an car accident attorney well versed in the field of law involved.   This is certainly true in a case involving such a potentially confusing area as MOTOR VEHICLE ACCIDENTS.

Statutory Definition of “Serious Injury”

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Posted by New York City Injury Lawyer Steve Orlow

Notice • Actual Notice • Constructive Notice

You fall on a bunch of grapes on the floor of a supermarket and injure yourself.   Is the supermarket responsible?     You fall down a stairway in your apartment building when you trip on a loose stairway tile and end up in the hospital. Can the landlord be held legally responsible?   The lighting in the hallway of an office building is not working and you fall over some boxes left in that hallway by one of the tenants, suffering a fractured nose..  Will you be successful in a lawsuit against the building owner?

While each of these scenarios may seem quite different, each has an element in common.  It is an element that may well be one of the most important issues in almost every type of injury lawsuit.   It is an element that can, and often does, spell the difference between success and failure in many, if not most, lawsuits.

Lawyers call this element “NOTICE”.   What lawyers are asking is whether or not a person who might be held to be legally responsible for an injury actually knew about the defect or condition that caused the injury (“ACTUAL NOTICE”).    In the event the potentially responsible person did NOT know of the defect or condition that caused the accident, an equally important question will be whether that person SHOULD HAVE KNOWN about that defect or condition .

When we ask whether that potentially legally responsible person SHOULD HAVE KNOWN, we are asking whether or not the defect or condition existed for a long enough period of time that the potentially responsible person can be reasonably expected to have found out about that defect or condition within that time – regardless of whether or not they actually did find out (“CONSTRUCTIVE NOTICE”)!!

In our first example, when did the grapes fall onto the floor of the supermarket?  Were the grapes dropped by another customer just a minute or two before our victim slipped and fell on the grapes?   Or were the grapes on the floor a half hour earlier during which time supermarket employees probably passed that location, or could reasonably have been expected to pass that spot,  several times, but failed to pick the grapes up.  PROBLEM: Proving how long the grapes were on the floor.   If the issue are tiles on a building stairway or light in a hallway, the testimony of witnesses, such as other tenants in that building, would easily show the existence of the defective condition for a period of time.   It is much more difficult in the supermarket situation.  We would usually have to rely either on other customers (forget about store employees !!) or even on the “victim” him/herself if, for example, the “victim” passed the exact spot where the grapes were located fifteen minutes or a half hour earlier and could state, with certainty, he/she saw the grapes on the floor at that time.

Another problem: if the “victim had seen the grapes earlier, why didn’t she/he avoid them the second time around?–Which is why you need a good lawyer !!.

Most often, if there is no ACTUAL NOTICE or CONSTRUCTIVE NOTICE, then a lawsuit will not be successful.  There are many exceptions, often created by law, and it is essential that you consult an experienced attorney to discuss your individual situation.

Posted by New York Personal Injury Lawyer Steve Orlow

What is the status of legislation that is designed to extend the Statue of Limitations in New York for sexual abuse?

With the change in control of the New York State Senate going from the Republicans to the Democrats after several decades, advocates for extending the time that a person may file a lawsuit for having been sexually abused are now seeing the light at the end of the tunnel.

Until now, a person had five years from the time they became 18 years old (i.e. 23 years old) to bring such a lawsuit.   If through neglect, or more often, the effects of the trauma, a person waited more than five years after they reached 18 years to bring a lawsuit for the sexual abuse they suffered, they were forever barred from bring the lawsuit.

There are currently two competing pieces of legislation intended to alleviate this harsh situation: First, there is a bill simply extending the period within which a lawsuit may be brought to ten years from a person’s 18^th birthday (until 28 years old).  A second bill would also extend the age limit to 28 years old but would, additionally,  add a provision giving anyone at all, no matter how old, and no matter how long ago the sexual abuse occurred, the ability to bring a lawsuit within a one year “window of opportunity” from the date the bill becomes law.

Some  religious organizations are vigorously opposing the “window of opportunity” portion of the legislation.   They oppose it for two main reasons: first, this could open them up to such a large number of lawsuits that it could bankrupt many organizations.  Even the Catholic Diocese of Brooklyn is concerned about that possibility. Second, they see no way of defending themselves in cases that could conceivably be as much as forty years old–and where often the accused clergyman may have already died.

Those in favor of the “window of opportunity “ portion of the bill point to the enormous harm sexual abuse can have on a person’s entire life and claim that it may take many years for a person so affected to be willing to actually admit and face up to the facts of the abuse.   They argue that it would be unfair to the victim of this horrendous abuse to deny them any compensation whatsoever.

With valid arguments being available to both sides, it might be wise to attempt some compromise..    While it is generally unfair and potentially injurious to the cause of justice to limit compensation to harmed individuals, it might be acceptable when the equities on both sides are so cogent.   Limit, if you will, recovery to perhaps $500,000 or even one million dollars.   In this way, at the least, most organizations will probably be able to cope with any lawsuit they face.and, at the same time, the victims will have the opportunity to have “their day in court”, an act that may well be a very significant contributor to their further recovery.

Post by New York Personal Injury Lawyer Steve Orlow

The New York City Police Department was faced with a tragedy recently.  An off-duty police office, chasing an individual he had witnessed attempting to break into his car, was shot and killed by a fellow police officer.  The off-duty officer, Omar J. Edwards, was chasing the suspect, gun in hand.  The on-duty officer, witnessing an unknown man with a gun running, identified himself and told the as yet unidentified off-duty officer not to move.   The off-duty officer, probably as an automatic reflex, turned towards the on-duty officer who, fearing for his life since a gun was now pointed in his direction, fired his weapon at the off-duty officer, killing him.  A difficult, tense situation leading to a tragic result.

We are told that police officers train for this event both during the initial Police Academy training and in follow-up training courses.  The officers are taught to overcome instinct and not to turn around despite an almost automatic reflex to do so, when confronted with a situation such as occurred in this case.

QUESTION: When police see a person with an object in their hand that they suspect may be a weapon, and they demand that person “STOP”, is it not natural to assume that a civilian will also have that same instinct to turn around?

What training, exactly, do police officers get to prevent the mistaken killing of civilians?    We see special training given to police officers to avoid becoming the target of mistaken shootings.  Is it not clear that civilians, without any training, are much more likely to be the victims of mistaken shootings since they receive no training whatsoever.

The life of every human being is precious, and it is essential that the training provided to police officers must be substantially improved to prevent ALL forms of mistaken shootings.  Too often we have witnessed tragedies that, with proper and repeated training, could probably have avoided an enormous amount of suffering for all the people involved in these tragedies.

Posted by New York Injury Lawyer, Steve Orlow