Statute of Limitations Reform: Abuse Victims | Brooklyn Personal Injury Attorney

ABUSE  VICTIMS: STATUTE OF LIMITATIONS REFORM

In a recent New York Times article, Lawrence Lessig, a law professor at Harvard, noted the continuing role of the Catholic Church in opposing any change in New York State’s Statute of Limitations with respect to the ability of Sexual Abuse victims seeking redress for the harm they suffered.

Professor Lessig pointed out that New York has one of the most restrictive Statute of Limitations when it comes to child sexual abuse.  New York law requires a person to bring a lawsuit involving sexual abuse within five years of reaching their 18th birthday, or forever be barred from bringing such a lawsuit.

Three times the New York State Assembly has passed legislation altering that law.

Assemblywoman Margaret Markey has attempted to extend the Statute to allow a lawsuit TEN years following the 18th birthday and, additionally, to allow a ONE YEAR WINDOW, during which anyone, of any age, could bring a lawsuit for sexual abuse.  The New York State Senate has repeatedly refused to follow the Assembly’s example in passing such legislation.

According to Professor Lessig, “At the core of the opposition to this bill is heavy lobbying by the New York Catholic Conference (which)…has hired top dollar lobbyists to kill the bill.”   The object of the Catholic Conference is an attempt to protect the Church from the loss of significant wealth resulting from the inevitable avalanche of lawsuits.  Of course, this will also result in hundreds, if not thousands, of victims being barred from receiving compensation for the harm they suffered.
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THE SCOPE AND BREADTH OF PERSONAL INJURY CASES | Manhattan Lawyer

THE NECESSARY EXPERTISE OF THE PERSONAL INJURY LAWYER

Three recent unrelated cases can illustrate just how broad an area the issues facing the personal injury attorney can cover. *(Taken from www.claimsjournal.com )
Case 1: Man Sues PetSmart–Says He Slipped on Dog Feces
Case 2: Woman Dies After Getting Stuck in Elevator
Case 3: Teen Sues School Over Stabbing

The attorney receiving these cases will have to analyze a wide variety of issues in making an initial evaluation as tho whether or not  there is a valid, sustainable lawsuit.  In addition, the attorney will have to decide whether or not it makes “economic sense” for his firm to accept the matter.  This latter issue is usually based on two factors: first, what is the extent and nature of the injury incurred; second, is there a realistic source from which monetary damages can be obtained (in most cases, insurance).Let us imagine differing scenarios in the above cases:

Case1: What if the dog feces occurred when another customer’s dog, whose owner was in the  shop to purchase an item for his dog, had just relieved itself a moment before the victim fell?  Would the store owner be liable?

Case 2: What if a woman forgot to take her heart medication that day, the elevator gets stuck for a few minutes, and the women, who is also claustrophobic, begins to panic, and dies?  Is the building owner or elevator company liable?

Case 3:  What if the victim of the stabbing sought refuge in the school but was not permitted inside by a school guard (correct fact in this case)?  And what if this event was part of a gang fight outside the school?  Did the guard have to let this victim back into the school?

These scenarios demonstrate the complexity, at times, that arise with the wide variety of fact patterns Personal Injury Attorneys are confronted with on a daily basis.  In many firms, partners will often meet to digest and contemplate facts surrounding a “difficult” case and decide whether or not that firm can be comfortable in accepting a matter.
When a firm accepts a case, it is understood that a client is depending on that firm to alleviate, in some manner, through the obtaining of monetary compensation, the suffering that client has endured and may continue to endure into the future.  No responsible attorneys would want to have a client depend on them for such an awesome responsibility without being as sure as possible that their firm is in a position where a successful outcome, while never a total guarantee, will be a more than likely outcome.
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Collapsing Cranes | Brooklyn Personal Injury Lawyer

COLLAPSING CRANES

Within just the last several months there have been a spate of crane accidents in New York City, some of which have resulted is serious injury and even death. The latest crane collapse occurred in Brooklyn , at a construction site. Four workers were injured. Not long before that a large crane “tilted,” hitting a 25 storey building.

Before these incidents, the City of New York has seen crane accidents over a period of years.  With injuries come lawsuits, and cases have been going to trial. Just this month (April, 2010), in a case that involved the death of two construction workers in May, 2008, in a crane collapse, a judge  took the rare step of fining the City of New York, one of the defendants in the case, for failing to provide documents to the Plaintiffs as ordered by the court . There was also a criminal case pending against the owner of the crane company for taking inappropriate steps to repair a part of this crane that had previously cracked.  It was this part that caused the crane to subsequently collapse.

In the collapse of the crane into the 25 story building, New York City suspended the operator’s license.

It was determined that because the operator left the crane in other than the safest position possible, the collapse occurred.

In a criminal case that may well be symptomatic for so many of the problems the City faces at construction sites, the City’s former chief crane inspector pleaded guilty to “receiving bribes”.  His career with the City spanned 26 years.  He admitted he took bribes over the last several years to basically provide abbreviated and inadequate inspections of cranes, as well as crane operator qualifications.

It was after the second of two crane collapses in 2008, that resulted in a total of nine deaths, that the City began to seriously crack down on inspections.  The City then also began a program of “beefing up” its crane inspection system.

Crane collapses are almost invariably serious events involving drastic injuries.  Those seeking to bring a lawsuit based upon crane accidents would do well to investigate carefully the reputation and experience of any personal injury lawyer that they consider retaining to represent their interests.

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Intentional Torts & Assault & Battery | Manhattan Personal Injury Attorney

INTENTIONAL    TORTS | ASSAULT  and  BATTERY

Let us recall that we are dealing here with CIVIL, as opposed to CRIMINAL, concepts, though it is possible, and even likely, that both civil and criminal penalties may flow from the same actions.

“ASSAULT” occurs when one person intends for another individual to believe he/she will be subjected to imminent “harmful or offensive” contact.

The perceived threatened contact cannot be some future act.  The” intentional tort” of “assault” also requires more than mere words—it requires an “overt act”.  “Assault” requires apprehension, or even fear, that “harmful or offensive” contact is about to occur.  No physical contact, however, occurs !

On the other hand, the “tort” of BATTERY does involve physical contact.  It occurs when one person intends to cause “offensive or harmful” contact to another and such contact actually does take place !

If D throws a bat at the opposing little league’s coach because D’s team just struck out in the final out of the game, and D hits an opposing player instead of the coach, a “battery” has nevertheless occurred.

The INTENTIONAL TORTS of assault and battery occur with some frequency in cases involving false arrest by police officers and cases involving private security guards.

The issue will also often arise in cases involving “bouncers” in nightclubs and after hours spots where liquor flows freely.  From the point of view of the Personal Injury Attorney these cases do present viable opportunities to recover adequate compensation for injured clients because, in addition to the perpetrator of the “intentional tort” being the subject of the lawsuit, the employer will almost invariably be included as a defendant in the lawsuit as well.  It is the employer, after all, that will be the one with the resources to provide the compensation sought.

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Intentional Torts | NYC Personal Injury Attorney

INTENTIONAL TORTS

We noted previously that a “tort” is simply a civil, as opposed to a criminal, wrong, committed against another. While criminal acts often result in incarceration to the perpetrator, the consequence flowing from the performance of a civil wrong, or “tort”, is the imposition of money damages imposed upon the “tortfeasor” and awarded to the injured party.

“Torts” are divided into those that are “intentional” and those that are unintentional.

They can be distinguished rather easily by answering the question:  Did the person (“tortfeasor”) engaging in the particular action, purposely want the results of that act to occur OR was it “substantially certain” that a reasonable person could see that the results of that action would occur.

D, driving his car, sees T, who insulted D’s wife last week, on the sidewalk.    D wants to scare the daylights out of T so he decides to drive his car on to a busy sidewalk.  T is not hurt but, as D swerves, he hits P, an uninvolved pedestrian, severely injuring him. D committed an  ”intentional tort”  with respect to P !

The distinction between an intentional and unintentional tort, in the field of Personal Injury law, could be crucial and devastating.     The “Statute of Limitations” for unintentional torts is virtually always three years in New York State (with certain exceptions such as in the field of medical malpractice).   However, lawsuits based on “intentional torts” have a Statute of Limitations (the time within which a lawsuit MUST be brought) in New York of only ONE year.   Consequently, for this and many other reasons we have been pointing out, consulting with an experienced Personal Injury Attorney just as soon after you suffer an injury as possible can mean the difference between realizing compensation for the injury you sustained or forfeiting that possibility through ignorance and inaction.

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RES IPSA LOQUITOR | The Act Speaks For Itself

RES  IPSA  LOQUITOR | THE ACT  SPEAKS  FOR  ITSELF

As we have discussed before, a sustainable lawsuit requires an injured party to demonstrate the liability (fault) of another, at least to some degree, in having caused the incident that resulted in that injury.   Most often this is done through witnesses, with the injured party themselves being the most frequent of these witnesses.

There are numerous other sources of direct proof that can show the target of the lawsuit (the Defendant) failed to act with “due care” based upon a duty the Defendant had with respect to the injured party.

BUT SOMETIMES YOU JUST CANNOT SHOW, BY DIRECT PROOF, THAT ANYONE WAS AT FAULT.

In a recent case (Keyser v. KB Toys, Inc.) in Suffolk County New York, a shopper was injured by falling boxes piled high in a toy store. No employees were near the boxes. The jury found for the defendant toy store.  The judge set aside the decision !!  (Yes, a judge can do that saying that, according to law, there simply was not enough evidence to permit the jury to decide the way it did !!).

The injured party (the Plaintiff) had presented the theory of RES IPSA LOQUITOR which the judge believed was not adequately overcome by the Defendant. This theory is based on the thought that, unless someone was negligent, there are certain events that simply do not occur !

For “RES IPSA LOQUITOR” to be applicable in a case, three elements are necessary:

1. the accident that happened must be of the type that normally would not occur unless there was negligence–an “absence of due care,” by someone;

2. the Defendant had a “duty of care” toward the injured party, specifically in relation to the object that caused the Plaintiff’s injury;

3.  the Plaintiff was in NO WAY responsible for the occurrence of the event that lead to the Plaintiff’s injury.

The “Resp Ipsa Loquitor” doctrine is an important tool in the arsenal of the experienced Personal Injury Attorney.   This article should clearly demonstrate to the layman that, even in the event it would seem to an injured party that it would not pay to being a lawsuit since “no one is at fault”, there may well be a party that is, indeed, responsible and who should be compelled to fairly compensate the Plaintiff for injuries sustained.

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