A RECENT CASE

In a recent case, the Plaintiff managed to jump out of the way of a fire department vehicle which struck a person standing next to the Plaintiff. Thinking that she was not seriously injured, the Plaintiff did not pursue litigation.

The seemingly minor injury eventually turned into a serious injury which required knee surgery. The Plaintiff indicated that she had been stymied in an attempt to obtain information from the Police Department because she was not directly hit by the offending vehicle, and she failed to report any injury at the time of the accident. This set of circumstances led to the late filing of the Notice of Claim.

At a hearing regarding the motion to file the late Notice of Claim, the court noted the testimony of the individual that was hit by the vehicle supporting the Plaintiff’s contention that she was present at the scene and time of the accident. The Court also noted that the municipality was well aware of all the relevant facts surrounding the accident because of the police presence at the scene and because it was the agents of the municipality which performed the acts of alleged negligence complained of by the Plaintiff.

Finding the reasons for the Plaintiff’s delay in filing were reasonable, and that no prejudice inured to the municipality, the Court allowed the late Notice of Claim.

AM I LIMITED TO GETTING WORKERS COMPENSATION?

During the last week of May of this year (2010) alone, there were two serious construction site accidents involving falls from significant heights. One involved a worker at a residential building falling fifty feet while he was working on the building’s steel framework. The other involved a worker at the Throgs Neck Bridge.

The first worker died after falling fifty feet. The bridge worker fell 15 to 20 feet off a ladder and was seriously injured.

With respect to the worker that died, officials indicated that it seemed as if he was not wearing a safety harness ! It is precisely this point to which we direct our attention.

There are several facts that make accidents at construction sites unique in the area of Personal Injury Law in New York:

• Construction site accidents are among the most frequent accidents that occur;
• The resulting injuries are among the most serious that occur;
• Public policy is very inclined to seek protection for injured workers and their families;
• the law, especially with respect to liability (who is responsible for the accident that occurred) is not at all necessarily what the layman might think it is–the law can be extremely complex.

The fact that the worker that fell and was not wearing a safety harness should not, and does not, eliminate the possibility that the worker or his family will have a THIRD PARTY LAWSUIT available to him. This would be in addition to any workers compensation claim the worker or his family might have.

It is truly esential when dealing with a construction site accident that a personal injury attorney, in addition to a workers compensation attorney, be consulted. As we have noted on previous blog postings, this could mean very substantial differences to the injured worker and his family. Because of the law’s complexity in this area, be very certain the Personal Injury Attorney chosen is well experienced in this important area of law.

“FORUM  SHOPPING” II

PICKING THE COURT THAT’S RIGHT FOR YOU: CHOICE OF “VENUE”

As we have seen, with respect to situations where state law may differ from federal law, and both state and federal jurisdiction exists, the fact situation of the case may determine the most advantageous court in which to bring your lawsuit.   There are, however, several other factors that will be considered by the experienced litigator, particularly in personal injury cases, in deciding which court to file your lawsuit, presuming a choice exists.

Time limits that restrict, or even eliminate, your pursuit of an action in state court may well be viable in Federal court.

This could also hold true should you have a choice of bringing an action in the courts of different states–the Statute of Limitations in one state could well differ from that of another state.

“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.

SEXUAL  ABUSE: PEDOPHILE  PEDIATRICIANS

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 NECESSARY EXPERTISE OF THE 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.

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.

TRIP & FALL CASES

“UNKNOWN CAUSE”

Countering the “Open and Obvious” and “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.