New York Injury Law Blog
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CONSTRUCTION SITE ACCIDENTS | Bronx Injury Lawyer
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.
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CHANGING LAWYERS | New York Personal Injury Attorney
"SUBSTITUTION OF ATTORNEYS"
SO YOU WANT TO CHANGE YOUR LAWYER
It is a fact of life that Personal Injury lawsuits, as a general rule, require years, rather than months, to reach a conclusion. This is a product of both the nature of a personal injury lawsuit–which requires investigation and "discovery"– and crowded court calendars. This situation also leads to the increased chance that a client will become dissatisfied, in some manner or for some reason, with some aspect of his or her attorney's performance.
It is the absolute right of any client to dismiss their attorney at any time. It is also the right of that client to choose another attorney and to replace the dismissed attorney with another attorney. In legal parlance this is known as "SUBSTITUTION OF ATTORNEYS." No grounds need be stated–though any responsible attorney to be "substituted" will want to know the reason he is being asked to replace the original attorney. The ethical attorney would be reluctant to accept the client if the reason being presented was one which the newly approached attorney would not be able to improve upon.
One of the most common reasons that clients give for dissatisfaction with their attorneys , as inexplicable as it is, is that the attorney does not respond to phone calls; that inquiries go unanswered; that the client feels as if they are ignored. Attorneys are often overworked and very busy. However, an attorney owes their client the respect and consideration of answering their inquires as expeditiously as possible, and that should be considered part of the responsibility in every case that is accepted by the attorney.
That is not to say that, rarely, clients can be unreasonable in the frequency of their requests for information. But experience shows that this is the infrequent exception. Unfortunately, the failure of attorneys to respond to their clients is a far more frequent occurrence.
An oft repeated complaint by clients is that they have not heard anything from their attorneys for a long period of time. The conclusion reached is that, therefore, nothing is being done on the case. This is harmful to the attorney client relationship and unfortunately is based on lack of knowledge about the activity involved in a personal injury case. While some participation by a client is necessary, such as depositions, attendance at medical examinations and perhaps supplying needed documentation, it is very limited in nature. The attorney is also involved in investigations, discovery of documentation from the other parties, possible motions, depositions of parties and witnesses and a variety of conferences. For most, if not all of these events, it is not necessary to involve the client. So while the attorney is very busy on the case, the client is unaware of the activity and deems the attorney to be idle. To inform the client of every event taking place, for every case in an attorney's office, would indeed be excruciatingly time consuming and would probably generate client phone calls that would also consume an attorney's time that could be far more productively be used elsewhere. It is somewhat of a dilemma.
Additionally, once ALL of the work on a case is completed, and usually not until all the work is completed, the case may be put on the court calendar ("filing the Note of Issue"). Filing the "Note of Issue" places your case in line to have a trial. Courts throughout the State of New York vary in the time it takes for a case to reach trial once the "Note of Issue" is filed. In New York City, it can vary from about eight months to two years, depending on the backlog of the particular court. This creates another problem in client relations: "dead time," while the client is wondering what is happening to the case. Once a case is placed on the calendar, it would be a good idea for an attorney to so notify the client and make the client aware of the situation.
If, for whatever reason, the client feels compelled to change attorneys, and locates another qualified attorney with whom they believe they will find greater satisfaction (recognizing that the familiarity with the case gained by the first attorney may be sacrificed in the switchover), the client should realize that the fee charged to the client WILL NOT CHANGE. It will be the obligation of the old and new attorneys to arrange, between themselves, exactly how they will share the original fee charged the client by the first attorney. The client will in no way be penalized in terms of the fee for the desire to change attorneys.
Changing attorneys, while the absolute right of the client, should not be undertaken lightly. Suggestion: Speak with your attorney and tell them frankly of your dissatisfaction and see if it would be possible to remove the cause of your dissatisfaction before making this important decision.
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Forum Shopping II | Manhattan Personal Injury Attorney
"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.
With respect to cases brought in New York City, it is well recognized that, almost invariably, a lawsuit filed in the Federal Courts (again, presuming jurisdiction exists) will reach its conclusion well before a lawsuit, based on exactly the same incident, would reach its conclusion in State court. If time may be an important factor, such as the presence of an elderly or ill client or witness, this could become decisive.
More amorphous or subtle considerations are apt to enter the picture as well. Discovery rules differ in Federal and State courts, and if certain discovery is crucial to a case, the experienced attorney will factor that issue into the choice of "venue".
And choice of courts is not only limited to one state vs. another state's courts or State vs. Federal court. It may well come down to as simple a choice as to which county within one state (again presuming a choice exists) one should file the lawsuit. Here, again, the length of time to bring a lawsuit to conclusion can differ significantly between counties. And, though attorneys may be somewhat loathe to admit this fact, "common knowledge" among the profession has it that certain counties may have juries that are more favorably disposed towards plaintiffs than other counties–while others are more favorably disposed towards defendants.
The practice of law, and in particular it's applicability to the field of Personal Injury Law, is highly technical. It is filled with issues that require not only "book knowledge" but also the need to "sense" factors that can only come with experience. As this topic of "FORUM SHOPPING" clearly demonstrates, some factors that would never appear on the client's "radar screen" could well make a dramatic difference in the outcome of that client's case, even before the client is aware that a case has begun !!
Forum Shopping
Forum Shopping | Brooklyn Personal Injury Attorney
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.
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.
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.
Negligence: Duty & Forseeablility | Bronx Personal Injury Attorney
NEGLIGENCE: DUTY AND FORESEEABILITY
The overwhelming number of personal injury cases involve an act of "negligence" by one individual that results in an injury to another. However, the fact that one individual's negligent act results in another individual's injury does not automatically create a valid basis for a lawsuit by the injured party against the negligent party.
The most famous "tort" ("tort"= a civil wrong) case studied by every law student for generations is Palsgraf v. Long Island Railroad. Mr. Palsgraf was standing on a train platform after buying his ticket, near some scales. At the other end of the platform some men were rushing onto a train. Conductors on the train helped the men aboard, but in the rush one man dropped a package which contained fireworks. The fireworks exploded, causing the scales near Mr. Palsgraf, at the other end of the platform, to fall and injure Mr. Palsgraf. Was the LIRR liable to Mr. Palsgraf for the injury he sustained?
The appeals court discussed whether, in the first instance, there was any duty owed Mr. Palsgraf by the LIRR and its conductors, since he was so far from the scene of the activity involving the alleged negligence. The lower court ruled that there was a duty owed to Mr. Palsgraf. The appeals court (overruling the lower court that found in favor of Mr. Palsgraf) decided that it was not reasonably foreseeable that the action by the conductors would result in injury to someone as remote as Mr. Palsgraf was to the scene of the acts. Consequently, there being no "duty", there is no basis for the LIRR's liability !
Since that case, courts have differed considerably in determining the basis as to whether negligent parties owe a duty to, and therefore become liable for, injuries that occur to remote individuals. The Palsgraf court established the principle of "foreseeability"–would a reasonable person have foreseen the possibility of the incident resulting in injury, in the manner the accident occurred?
Other courts have adopted a broader definition: was there a continuous and direct connection between the cause (the negligent act) and the effect (the injury)? "Foreseeability" of the exact occurrence is not as dramatic an issue in this latter scenario.
Zone Of Danger | Bronx Personal Injury Attorney
"ZONE OF DANGER"
We have seen that in "wrongful death" actions, the generally applicable rule in New York is that emotional trauma caused family members by the loss of a loved one is not a permissible basis for a "cause of action" in a lawsuit.
Is there ever a time when the emotional impact upon a loved one can be the basis for a lawsuit by that loved one?
The answer is "YES". When the loved one finds themselves within what is known as the "Zone of Danger"at the time a member of their immediate family was injured or killed…
To be eligible to bring a "zone of danger" lawsuit for the emotional trauma and psychological impact an immediate family member's accident had upon you, it would be necessary to demonstrate not only that it was an immediate family member that was involved, but that:
—You were also in such proximity to the accident victim that you could well have been injured yourself;
—You were aware of the fact the immediate family member was being seriously injured or killed as the event was occurring;
— You have valid medical proof that you suffered a psychological injury as a result of that accident (psychological or psychiatric medical treatment).
Zone of Danger cases are relatively rare since the requirements to bring such a lawsuit are very stringent. There is a general perception that whereas physical injuries are usually subject to objective tests, psychological injuries might be more susceptible to fraud and so conditions are created that make the infliction of psychological injuries more plausible.
It takes an experienced Personal Injury Attorney to recognize the possible availability of a Zone of Danger case, and to properly analyze the circumstances surrounding an accident to appropriately apply the requirements to be successful in such a lawsuit.
Wrongful Death: Children & Infants | New York Lawyer
WRONGFUL DEATH | CHILDREN AND INFANTS
We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to "conscious pain and suffering" and "pecuniary loss", the latter item of which, in the case of a child or infant, is understandably negligible.
In determining "pecuniary loss", the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to "conscious pain and suffering" that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.
If the defendant evinced conduct that was utterly indifferent to the safety of others, exhibited gross negligence or showed a conscious disregard for the life of others, then punitive damages might be applicable. In such instances, recoveries can be significantly higher.
If a parent was at the scene of the accident, in what is known in legal parlance as the "zone of danger", then the parent may possibly be entitled to separate damages for "emotional trauma" inflicted by witnessing the accident.
Both "punitive damages" and a "zone of danger" claim are rarely available, but the experienced Personal Injury Attorney will be alert to any possible avenue to increase what might be, frankly, an otherwise inadequate recovery.
Texting While Driving: Update
In a follow up to our posting (January 12, 2010) regarding the Presidential Executive Order banning federal employees from texting while driving government vehicles, the Federal Government has just (January 26th, 2010) banned all texting by drivers of buses and large commercial trucks.
This ban is enforceable by fines of up to $2,750.
The National Safety Council estimates that 200,000 crashes in the U.S. are caused by drivers who are texting. Currently, about 24 states ban texting while driving, and more states are on the way. There is also pending legislation in Congress that would accomplish the same result.
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