Forum Shopping | Brooklyn Personal Injury Attorney

“FORUM SHOPPING”

PICKING THE COURT THAT’S “RIGHT” FOR YOU

CHOICE  OF  “VENUE”

As any experienced litigation attorney will explain, more often than not there will be a choice of courts in which to bring a lawsuit you may be contemplating.  Among attorneys, this is known as choosing a “venue.”

Often the venue choice will be between state courts in different counties.  Other times, it may be a matter of choosing to bring the case in either a state or a federal court.

Experienced attorneys fully realize that the choice of “venue” at the very beginning of a case can, in and of itself, spell the difference between  great, or merely modest, success,  and at times it can even mean the difference between success and complete failure!

In 2004 a disabled passenger fell down a flight of stairs while disembarking from a commuter airline (Elasaad v. Independence Air) in Philadelphia.   The lawsuit was brought in the state court.  The state court ruled that federal law applied.   Since federal law requires that a disabled passenger must request assistance before the airline is obligated to lend assistance, and the passenger in this case failed to request assistance, the case was dismissed by the state judge.

Since appeals are both time consuming and costly, pursuing an appeal from a court decision is not a frequent event.In this case however, an appeal found its way to the Federal Court of Appeals which reversed the state court decision.  The Federal Appeals Court found that while federal rules do apply while the plane is in flight, state laws may apply while passengers are disembarking. Federal law did not pre-empt state law in such a situation. The case, originally brought by the Plaintiff in state court, may stay in state court and state law may apply. Since state law does not require a prior request for assistance to an airline by a disabled passenger, before the airline becomes responsible, the passenger was victorious.

While the attorneys in this matter certainly chose the correct court originally in which to bring this lawsuit, it was the original court that got the law wrong!  The diligence of the Plaintiff’s attorneys corrected that mistake.  Future attorneys will take note of this case.  Those attorneys that keep track of cases as they develop (which is essential for any competent, experienced attorney), will be aware that the choice of venue in cases of this nature will be the state, and not federal, court.

“Forum shopping” extends beyond issues of conflicting laws.  Often it concerns itself with more subtle issues.  We will touch on this subject in another posting.

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CITIZEN’S ARREST | New York Personal Injury Attorney

“CITIZEN’S   ARREST”

While virtually everyone has heard the term “citizen’s arrest” used at some point in time, rarely do people realize that the term has specific legal meaning and potentially serious legal implications.


The definition is simple enough: a “citizen’s arrest” is an arrest by any civilian (not necessarily a “citizen” in some states) who does not have official government authority to make an arrest.  In fact “citizen arrests” are legal in every state, though state laws with respect to the situations in which such arrests are permissible vary.

As a general rule, every state permits a civilian to make an arrest if a “felony” (a very serious crime) is being perpetrated in the presence of that civilian.   Where differences among the states occur is in matters involving “misdemeanors” (less serious crimes),  and where a felony is not witnessed by the civilian.

The difficulty is NOT when the civilian arrests a person that committed a crime in his presence.   Both the fact that the crime occurred as well as the identity of the person committing the crime is, in that instance, clear.   More difficult is the situation where the crime was committed outside the presence of the civilian intending to make the arrest.   In New York, such arrests should be limited to felonies.  Furthermore, if the civilian makes a mistake and, it turns out, no felony was committed, the civilian may well be subject to a lawsuit for false arrest.  If, on the other hand, the crime actually occurred, but the civilian makes a reasonable and good faith mistake as to the identity of the person the civilian arrests, then in that instance the civilian may be able to present his good faith effort as a valid defense to a lawsuit for false arrest. We should also mention, however, the possibility that the person arrested may file criminal charges of assault against the well intentioned civilian!

It would seem self evident that the best approach is always to contact the proper authorities, an act that has become infinitely easier with the advent of cell phones.  If, as an absolute last resort you must resort to a civilian arrest, do so recognizing fully the legal limitations within which you are compelled to act.
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False Imprisionment | Brooklyn Personal Injury Attorney

FALSE  IMPRISONMENT

One should keep in mind that the “civil” tort (a wrongful act) of “FALSE IMPRISONMENT” is much broader than the act involved in a “false arrest” under the criminal law.   While a “false arrest” committed by a police officer will fall under the civil concept of “false imprisonment”, there are any number of other situations, not necessarily involving police or official personnel, that will also be encompassed by “false imprisonment.”

Any time a perpetrator intentionally confines the victim to a specific area, and does it against the victim’s will, that will constitute a “false imprisonment.”

One of the most frequent instances of “false imprisonment” by non-police personnel involves retail establishment security personnel.   Someone thought to have shoplifted an item is detained, only to have store personnel find out a mistake was made.
A landlord, annoyed that a tenant has not paid his rent, locks the tenant in his tenth floor apartment.  This may well constitute “false imprisonment.”   Locking the tenant out of the apartment would not.

The yardstick is determined by the mental state of the victim.  If the perpetrator tells a person they are locked into a room, and the victim has grounds to believe it, even though the room is in fact unlocked, a “false imprisonment” has occurred.   Alternatively, if the victim is asleep when the perpetrator locks the room, and the perpetrator then unlocks the room before the victim awakens, the is no “false imprisonment.”.

As in all cases that are considered potential lawsuits, the issue of the amount of injury sustained by the victim becomes important to consider.

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Sexual Abuse: Pedophile Pediatiricians | Brooklyn Personal Injury Attorney

 

SEXUAL  ABUSE: PEDOPHILE  PEDIATRICIANS

It would be hard to imagine something as repugnant as members of the clergy participating in, and countenancing, the sexual abuse of those they counsel and to whom they provide spiritual guidance.   If exceed that we must, we only have to look at the cases of sexual abuse coming to light now involving pediatricians and their patients, ranging in age from 2 years to teenage.

As with priests in the Catholic Church, physicians who become aware of these gross violations of professional conduct by their colleagues invariably seek the removal of that colleague from their practice, and condone the fact that those pedophiles simply relocate to another practice.

The continued participation by the pedophile physicians in their abominable activities would seem to be preferable to fellow physicians than pursuing avenues that would certainly lead to removal from the practice of medicine and probable criminal prosecution.   The welfare of the young patients, as was the case with the welfare of young parishioners, is of secondary importance !  The “code of silence,” it would seem, crosses professional boundaries.

Within just the past few months, what is possibly the single worst case of physician pedophilia came to light in Delaware.  Dr. Earl Bradley was accused of sexually abusing more than 100 children. The accusations ranged from oral sex to rape, and his history is one of willful ignorance and repeated inaction by professional colleagues and police.

Outrageous and illegal activity such as that which is described should not go without some recourse for the victims. The effects of this conduct will likely last a lifetime, and the pain and suffering visited upon these young people in  their most tender years should not go uncompensated.  While the pedophile himself may be “judgment proof,” those from whom the victim or his or her family seek legal help will, if adequately experienced, be in a position to seek out other sources that contributed in some way to the offenses that occurred and who are, themselves, susceptible to providing the compensation to which the victim is entitled.
For more information on what to do if you or a loved one has been sexually abused in New York , contact The Orlow Firm online or at 800-LAW-NYNY.
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Staged Accidents: Insurance Fraud | Manhattan Personal Injury Attorney

STAGED ACCIDENTS: INSURANCE FRAUD

The police chief of Hackensack, NJ was recently striped of his 15 year position after being charged with insurance fraud–he filed a false insurance report. An upstate New York man was recently also charged with the same crime: all he did (!) was take out an automobile insurance policy AFTER the date of his car accident and then made a claim under the policy changing the date of the accident so that the policy would cover it.

People in all walks of life, for a variety of reasons, but virtually always grounded in the desire to reap rewards to which they are not legally entitled, participate in what is almost a national pastime: insurance fraud. There are numerous forms that insurance fraud takes, but perhaps the most insidious is the scheme involving staged accidents. (See the instructive video: https://www.nicb.org/multimedia/staged-videos/staged-accident-videos ).

The staged accident phenomena is becoming more prevalent. It involves claims under a state’s no-fault provisions relating to medical costs, where medical providers of all sorts have been found to participate in these schemes.

It also involves claims for bodily injury that find their way into court cases, reaping enrichment for unscrupulous lawyers and thieves acting as clients. The two states with the highest rates of staged accident fraud are, in order, Florida and New York..

While the claim may be that “only” insurance companies are hurt, in reality it is everyone that owns a car that is hurt. Fraud has a significant effect on insurance premiums, which affects every car owner in his or her pocketbook.  And make no mistake about it, engaging in any type of insurance fraud changes what would normally be a civil matter involving claims for money damages, into a criminal matter, where the penalties faced by those engaging in this nefarious practice will include incarceration!

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Slip & Fall Cases: "TRIVIAL DEFECTS" vs. Open & Obvious Defects | Manhattan Personal Injury Attorney

 

SLIP AND FALL CASES: “TRIVIAL DEFECTS” vs. “OPEN AND OBVIOUS DEFECTS“


It would seem that the Defendants in slip and fall cases have options open to them that can make Plaintiffs’ heads spin. A claim that a defect that was the alleged cause of a “slip and fall” injury was too trivial to actually constitute a nuisance or hazard is a recognized valid defense to a personal injury action. Alternatively, it is a recognized defense to claim that a condition that was the cause of the “slip and fall” injury was “open and obvious” and, as such, was not the responsibility of the property owner. Seems they may have you coming and going.

In situations such as these, the value of an attorney’s experience in facing these issues cannot be over emphasized. Both of these issues usually arise in motions made to the court for “summary judgement” and it will be the court’s discretion that determines the fate of your case.  There is voluminous case law relating to each of these areas and the outcome is often based upon a battle royale between and among the opposing attorneys.
With respect to the “trivial defect” defense, demonstrating through evidence: pictures, prior accidents, description by the plaintiff as to how the defect caused the accident, etc. can, and often does, overcome this defense.

The “open and obvious” defense is based on the supposition that the obviousness of the danger itself is sufficient warning to any potential victim.

This defense has the possibility of counter arguments:  that the landowner should have anticipated the danger to others even though it was open and dangerous or where the landowner had reason to believe the potential victim would be somehow distracted from noticing the defect.  Recent New York case law seems to make the issue of “foreseeability” by the landowner the primary determinant–the more the accident was foreseeable, the more likely the landowner will be held responsible, regardless of the defect’s obvious nature.
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Good Samaritan Laws: Liability for Voluntary Acts | New York Personal Injury Attorney

THE “GOOD  SAMARITAN” LIABILITY FOR VOLUNTARY ACTS ?

A recent news item in New York City showed portions of video from a surveillance camera.   Twenty or more people simply passed by a man that was lying on the street.   It happened that that man had just saved a woman from a knife wielding attacker and in the scuffle, had himself been attacked.   No one stopped to help this man for an hour after the incident, and the “Good Samaritan” eventually died of his wounds for want of a “Good Samaritan” to come to his aid..   Prompt attention would have saved his life.
It is difficult to understand the motivation of anyone that would simply ignore another human being in grave distress.  Certainly, however, the public policy in most, , if not all, states, and definitely in New York, is to encourage the performance of life saving acts. To this end, there is a “Good Samaritan” law (Public Health Law, Article 30, Section 3000-a) that specifically establishes protection for anyone acting as a “Good Samaritan.”

The law applies in the following circumstances:
—It applies to ANY person (and NOT just medical personnel)
—The person must act without any expectation of monetary  compensation
—The act must take place outside a hospital or other medical facility

Under those circumstances, the person rendering the aid will not be held liable for either injuries or death allegedly caused by any act of that “Good Samaritan” while rendering aid, UNLESS it is determined that the “Good Samaritan” was “grossly negligent” in performing his acts.

What constitutes “Gross Negligence” can differ in different situations.  One word of advice, stay within your sphere of abilities.  If you have never taken a course in CPR, or learned how to utilize a defibrillator, be reluctant to utilize those capabilities.  A first step should always be to seek professional help if available.  Most important: the motivation should always be to assist the person in dire distress–and certainly not to render yourself a “hero.”
One more word of advice: No one is required to lend assistance–unless, of course, you are responsible for the dire situation in which the injured party finds him or herself.  If,  however, the decision is made to assist someone, the injured person  must not be left in a worsened condition than before the assistance began. So, if you decide to take an injured person to a hospital and, after driving a block you decide you’d rather not do it, for whatever reason, you cannot simply dump the person in the middle of a street where traffic now becomes a real hazard in addition to whatever injury the person sustained.

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