January 13, 2015

Diving Board Liability and the Assumption of Risk

This post discusses a personal injury concept that, while at times confusing, often plays an integral role in determining liability: assumption of risk. Assumption of risk is a defense in a personal injury action in which a defendant claims that the plaintiff voluntarily undertook an activity with the knowledge that there is an inherent danger of suffering an injury while partaking in such an activity. As such, the defendant should not be held responsible if that injury does in fact occur.

To many, the concept of assumption of risk gained notoriety due in part to a famous decision written by Judge Benjamin Cardozo, at the time chief justice of the New York State Court of Appeals. The case was Murphy v. Steeplechase, 250 NY 479, but is often colloquially referred to as "the Flopper case." In 1929, Coney Island featured a ride known as the Flopper. We can only go by Judge Cardozo's descriptions in the decision, but the Flopper appears to have been a kind of long walkway/maze wherein the floor and walls and "flopped" about, causing riders to lose their balance in what presumably was a humorous and thrilling manner. Plaintiff, a "vigorous young man," fractured his knee cap on the ride, presumably from flopping about and eventually falling to the ground. He lost his lawsuit against the ride owners, with Judge Cardozo noting that, "One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball."

baseball crowd.jpgThe reference to sports is an appropriate one - the doctrine of assumption of risk has evolved greatly since this decision, particularly in the area of amusement park liability. Where the doctrine still has its greatest bite is in the area of sports liability. It is this very doctrine that has stifled the efforts of those who have been hit and injured by wayward balls at baseball games to be compensated for their injuries. Amusement parks are now far less likely to be protected by the doctrine of assumption of risk, the modern thinking being that people enjoy rides specifically because they do not believe there is any chance of being injured.

That said, assumption of risk doesn't only exist in the context of sporting events. In the recent Suffolk County personal injury case Freeman v. Village of Hempstead, 2014 NY Slip Op 06298, the plaintiff was injured when he fell off a diving board at a public pool. The defendant argued that the plaintiff assumed the risk of falling off when he got on the diving board. On its face, this argument seems reasonable. It did not win the day, however, and here we see a slight twist on the assumption of risk doctrine. The plaintiff alleged that the treads on the diving board, which are standard and meant to create some traction to reduce the risk of slipping and falling, were worn away and thus defective, and that the plaintiff did not assume this risk - only the risk of slipping and falling from a properly maintained diving board. This argument was successful, with the court finding that the defendant did not overcome its burden of showing that the lack of properly maintained treads on the board did not increase the risk of falling beyond what was assumed by the plaintiff.

The takeaway here is that a potential plaintiff should not assume that they assumed a risk by virtue of the activity they were partaking in when that injury occurred. Speak with a personal injury lawyer - they should be able to help inform you as to whether such an injury deserves compensation.

January 9, 2015

Second Department Reduces Damages in Suffolk County Car Accident Suit

Cicola v. County of Suffolk, 2014 NY Slip Op 06293, involves a Suffolk County car accident in which an official vehicle being driven by an employee of Suffolk County hit the plaintiff's vehicle, injuring him. At trial Mr. Cicola was able to prove that the accident resulted from negligence, and further was able to defeat the defendant's attempts to convince the jury that his injuries were largely pre-existing and simply exacerbated by the accident. After the plaintiff's win, the defendants appealed, seeking to have the verdict dismissed. They lost - the verdict stood. But, without much explanation or legal reasoning, the Appellate Division, Second Department, ordered damages reduced.

crash2.jpgWe opened with the brief summary of the case because there is not much more legally relevant information in the Second Department's opinion. The defendants lost numerous motions. The jury found the plaintiff's expert more credible than the defense expert. Defendants moved to have the verdict dismissed as "against the weight of the evidence," They lost this attempt as well. Their appeal also largely fell flat, as they were unable to get the jury verdict imposing damages set aside. But the defendants were ultimately successful in having the Appellate Division forcibly lower the jury's damage award.

It bears a paragraph to take a close look at those awards. Mr. Cicola (who injured his back in the accident) won from the jury two damage awards: $325,000 for "past pain and suffering" and $250,000 for "future pain and suffering." The Second Department did not simply lower these damages. Rather, it directed that there would be a new trial solely on the issue of damages (not liability) unless the plaintiff agreed to a reduction to $150,000 for past pain and suffering, and $100,000 for future pain and suffering. Of course, because the court indicated that it would not be friendly to any higher amounts a second trial may lead, to the plaintiff may have felt compelled to accept the lowered damages.

On its face, the allowance made for a court to lower damages awarded by a jury may seem contrary to the immense faith we put into the civil jury system. To this jury, after hearing all of the evidence, this accident leading to a serious injury warranted the award given. Yet the Appellate Court disagreed.

The appellate court cites to CPLR 5501(c). This law allows appellate courts (specifically the mid-level appellate courts of the state, the so-called Appellate Divisions) to alter an award of money damages through the above-described "stipulate or new trial" process if the court finds the award to be "excessive or inadequate if it deviates materially from what would be reasonable compensation."

The concept of "reasonableness" is a common one in law, and typically a body of case law has been built up determining when something is or is not reasonable depending on the context in which the reasonableness concept is used. No lawyer would condemn a reasonableness analysis - but the Second Department might have done a service to future plaintiffs, defendants, and their attorneys by providing a bit more context as to why this award of damages was truly "excessive."

January 6, 2015

Second Department Affirms Summary Judgment in Westchester Labor Law Action

This blog has previously discussed New York State's Scaffold Act: namely, Labor Law 240. In short, New York's Scaffold Act mandates that contractors, owners, and managers of construction sites provide appropriate safety devices (often scaffolding, though the law allows for other devices) to their workers when said workers are performing construction or demolition work on a "building or structure." The purpose of the law is to protect laborers from falls, or from being hit by objects or people that fall from above.

The Scaffold Law sounds fairly simple, and truth be told, it is not as complex or cumbersome as many other laws. That said, its limits and boundaries are not always readily apparent from the plain text of the statute. Consider Passantino v. Made Realty Corp., 2014 NYSlipOp 07136, a recent Appellate Division, Second Department decision heard on appeal from Supreme Court, Westchester County. Passantino is a good illustration of how an astute lawyer can fit the facts of his or her case within the existing law, to his or her client's benefit. This isn't "creative lawyering," that pejorative phrase on par with "creative accounting." It is good lawyering - it's knowing the law well enough to use it to a client's advantage even when such an advantage is not obvious or apparent given the facts.

ladder.jpgMr. Passantino was a member of a three-person crew installing fiber optic cable on the defendant's property. Note that Labor Law 240 applies to "contractors and owners and their agents." The instant decision does not make clear whether the defendant directly employed Mr. Passantino, but regardless, it was liable as owners of the property. As Mr. Passantino's coworker installed wiring while perched on a ladder, Mr. Passantino secured the ladder at its bottom by holding it. The court explains the rest: "Passantino let go of the ladder in order to reach some cable, the ladder started to 'kick out,' and began to fall. Passantino reached out in order to stop the ladder and his coworker from falling, allegedly causing him to slip on sand and gravel in the area, and tear a tendon in his arm."

It is not immediately apparent that this would be a case for the Scaffold Law. Labor Law 240 speaks of heights, and more generally, we associate scaffolds with the sides of tall buildings, not with ladders for installing cable. But Mr. Passantino won his lower court case by suing under the Scaffold Law, and this victory was affirmed (in part) by the Second Department. As per the court, the harm caused to Mr. Passantino was a result of "the application of the force of gravity" to the ladder, and that Mr. Passantino should have been provided with some kind of safety device. (Remember, the Scaffold Law doesn't actually mandate scaffolding in all cases - other safety mechanisms can achieve compliance with the law.)

Note that Mr. Passantino's victory was a partial one. In the lower court, his attorneys were able to convince the jury to return a verdict of liability under not only Labor Law 240, but additionally under Labor Law 241. Unlike the Scaffold Law, Labor Law 241 is dense, wordy, complex, and only applicable in very specific circumstances. Essentially, Mr. Passantino did not "trip and fall," which is the essence of Labor Law 241, though clearly what he did do was close enough that a lower court felt the issue should go to a jury.

If you've been injured and believe the Scaffold Law may apply, speak with our New York labor law attorneys regarding your potential case.

December 4, 2014

New York Personal Injury: Who Owes a Duty?

As we've discussed before on this blog, personal injury liability is determined in a manner that (in theory at least) resembles a checklist. Did the defendant owe a duty to the plaintiff? Check. Did the defendant breach that duty? Check. Did the breach of that duty cause harm to the plaintiff? Check. Duty, breach, causation, and harm: the four checkpoints of tort liability.

The above makes this all sound easy when in fact, in actual lawsuits, it is anything but. In this post, we will examine a legal concept relating specifically to the duty element. How do we know when a duty is owed to another? As we'll see, this also implicates the concept of causation - how far do courts extend "blame" for the actions undertaken by a defendant in a personal injury suit?

snowy lot.jpgThe case of Espinal v. Melville Contractors, an important 2002 action decided by the New York State Court of Appeals, helps to explain the concept of duty. The facts are fairly simple: the plaintiff, Ms. Espinal, slipped and fell in the parking lot of her employer, Miltope Corporation. Ms. Espinal sued Melville Snow Contractors, the company hired to plow the lot. The issue before the Court was whether Melville owed a duty to Ms. Espinal, which would be necessary for a finding of liability. Or did Melville's duty only extend to its client, Miltope Corporation, with whom it had signed a contract?

Generalizing a bit, the principle we're discussing here is useful when, for one reason or another, a plaintiff wishes to bring suit against a so-called "third party" - not the owner of the premises or property that caused your injury, but someone in contract with that person. For example: you get severe food poisoning from popcorn served to you by a movie theater. You soon learn that the theatre itself is bankrupt, so suing them may be an exercise in futility. But the popcorn maker, a different company than the theatre, is not. May you sue the popcorn maker?

The Espinal court identifies three situations where a plaintiff can seek damages from a third party, all having to do with the extent of the contractual undertaking by said third party. The greater the contractual duty assumed by the third party, the easier it will be to prove that the third party is liable to the plaintiff.

Espinal is an example of the law working as we would expect it to. As the Court makes clear, when a plaintiff has relied on the continued proper performance by the third party, that plaintiff should be able to sue the third party if that proper performance ceases or becomes deficient. Similarly, if the third party has essentially replaced the owner or "first party defendant," they will also be assuming certain liabilities. To bring us back to the movie theatre analogy, if a company rented out and operated every aspect of the theater without owning it, they would be liable for the selling of bad, sick-making popcorn.

As for Ms. Espinal, she unfortunately was unsuccessful. The court looked to the contract between the owners of the property where Ms. Espinal fell, and the snow removal company, which has agreed to remove snow and/or lay salt only when very specific conditions were met. Notably, the contract did not simply say, "We will keep your property snow-free, 24/7." If it did, there's a good chance Ms. Espinal would have prevailed.

If you feel that an individual or property owner has breached a duty causing an injury to you, or you think you may need to speak with a personal injury lawyer about an Espinal-like situation you have suffered, please contact our offices. We are happy to assist.

December 4, 2014

Liability for Sidewalk Accidents: Continued

In a previous post, we went over the laws governing which party is liable when a plaintiff trips and falls on a defective sidewalk in the City of New York. Brief review: NYC's Sidewalk Law places liability on "abutting" property owners - those who own the land next to that portion of the sidewalk - with exceptions for one, two, or three family homeowners where the homeowner also resides in the building. (In fact, the excepted homeowners can simply call the City up to perform sidewalk or tree repairs on their property). Here, we will examine ways in which the law treats differently certain features of sidewalks: trees and "tree wells," grates, and covers of certain other objects like cable boxes.

city tree.jpgIt makes sense that liability for negligently maintained tree wells (the little area housing one of New York City's ubiquitous sidewalk trees) is treated differently than liability for the sidewalk as a whole. A business owner, after all, relies on the presence of that sidewalk to give his customers a way to enter his place of business - he benefits directly from the presence of the sidewalk and as such, has an interest in making sure his section of it is well maintained and safe, even if he doesn't "own" that section. But a tree (for one example) is a bit different: the City likely planted that tree, or it was there before an owner bought the building, and that tree is doing little, if anything at all, to benefit the building owner.

As a brief but interesting aside: any building owner in fact can call up the City and request that a tree be planted on their portion of the sidewalk. Developers of new building are now in fact required to plant trees, though this doesn't change the liability for those trees we discuss in this post.

Basically, unlike sidewalks themselves, liability for tree wells, gratings (think sewers) and "covers" for cable boxes falls directly on the owner of that tree, grating, or cable box, with no exceptions. For things like sidewalk trees or gratings, this will more often than not mean the City is liable for injuries from negligent maintenance. The reverse is true for cable boxes, which usually are owned by building owners themselves. By law, gratings and covers must be "flush with the surrounding surface." If they are not, they are considered defective as a matter of law. That means that if such cover or grating is not flush, and someone trips on it, the owner will almost certainly be held liable in a lawsuit.

What does all this mean in practice? In Alexander v. City of New York and LaKane Realty Corporation, plaintiff Ms. Alexander tripped, fell, and injured herself on a broken up sidewalk. The area she fell on was allegedly directly next to both a tree well and a cable box cover. What happened in this case is fairly common for cases of this sort: Ms. Alexander properly sued both the City of New York and the adjacent building owner, reasoning that one or both of these two parties is responsible for the maintenance of this very specific area of the sidewalk. By doing this, a plaintiff allows two defendants to fight the issue out between them. Because Alexander went to the Second Department as an appeal of the Supreme Court's denial of the defendants' summary judgment motion, it was incumbent upon the defendants to show the absence of a triable issue of fact. Neither defendant was able to meet this burden.

Here at Gallivan & Gallivan, we've litigated a large number of sidewalk trip and fall cases. If you've been hurt in such an accident, contact our offices for information on how we can help.

December 1, 2014

Determining Liability in a Sidewalk Trip and Fall

Who owns the sidewalks of New York City? Usually, the City does, and based on that you might be tempted to assume that any injuries resulting from defects of those sidewalks - cracks and crevices and the like - would be the fault and responsibility of the City. You'd be wrong! And the reason you'd be wrong is the Sidewalk Law (colloquial name), passed by the City Council in 2003 to shift liability from the City to adjacent property owners of sidewalks, with some very notable and important exceptions.

Before we go into how the law works, a bit of context will be helpful. In any kind of personal injury action, a plaintiff quite naturally wants to make sure they file suit against any and all parties legally responsible for their injury, even if that responsibility is only partial. The doctrine of "joint and several liability" means that a plaintiff can collect their full recovery from any liable defendant, not merely the percentage for which that defendant is responsible. And of course, New York City is a defendant who possesses far more money, and is also often more willing to settle, than most.

sidewalk1.jpgIn a sidewalk liability case, then, the law being variable and subject to "tests", it often makes sense for a plaintiff who has been injured after a trip and fall to file suit against both the City and the adjacent property owners. It appears that this was exactly what the plaintiff did in Meyer v. City of New York et al., a recent case decided in the Appellate Division, Second Department. The plaintiff, Ms. Meyer, tripped and fell on a publicly owned sidewalk adjacent to property owned by several defendants. In addition to the property owners, she sued the City of New York, reasoning that under the Sidewalk Law, at least one of these parties is responsible for the negligent maintenance of the sidewalk.

The Sidewalk Law states that the maintenance of sidewalks is the responsibility of the property owner whose property directly abuts that sidewalk. As such, any injuries resulting from failing to complete that maintenance properly will fall on the property owner in terms of liability. However, there is an exception: if that adjacent property is a one, two, or three family home, and is occupied at least in part by the owner, and is "fully residential" (that is, there's no business on the premise), the Sidewalk Law does not apply.

The Meyer case was slightly unusual because one of the structures abutting the sidewalk was, in fact, zoned not for residential use, but for commercial use. It was used as a storage shed for the family's belongings. The court was thus tasked with deciding what should govern here: how the property was classified under zoning laws, or alternately, how the property was actually being used. They settled on the latter, and as such, the property owners managed to escape liability.

The Meyer case is also a good example of the type of personal injury lawsuit that can pit defendants against defendants while the plaintiff sits back and watches. Here, Ms. Meyer relied on the intricacies of the Sidewalk Law to hold the City accountable for her injuries.

The attorneys at Gallivan & Gallivan have litigated a large number of sidewalk trip and fall cases. If you've been hurt in such an accident, contact our offices for information on how we can help.

November 26, 2014

NHTSA Determines that Seat Belt and Drunk Driving Laws Saved over 13,000 Lives in 2012

The United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) recently released a Traffic Safety Facts - Research Note which summarizes the statistical date on lives saved by the implementation of seat belt laws and minimum drinking age laws. The note estimates that over 13,000 lives were saved by these provisions. The NHTSA is the division of the U.S. Department of Transportation which is responsible for highway and road safety. It is mandated with researching traffic safety measures, providing information, and forming regulations to make the roads safer.

The NHTSA considers lives saved to be one of the basic measurements of how effective safety devices, such as seatbelts, laws and regulations surrounding traffic safety are. They calculate the lives saved by comparing rates of compliance with the various laws and device usage numbers with changes in motor vehicle fatalities. Of course it is important to keep in mind that the numbers used to calculate the lives saved are only estimates, as it is impossible to know exactly what happened in every fatal accident and whether the lack of use or compliance with the relevant safety tool was the cause of the fatality.

The NHTSA estimated that in 2012 the use of seat belts in passenger vehicles saved approximately 12,174 lives up from 11,983 lives in 2013. They also predicted that if 100% of people used seat belts 3,031 lives would have been saved. This implies that there is still work to be done to stop preventable fatalities. As of 2012, forty nine states and the District of Columbia had seat belt laws in place. In thirty two of these states and the District of Columbia had primary laws requiring the use of a seatbelt. A primary seat belt law is one in which a car may be pulled over by the police and the driver fined solely for not wearing a seatbelt. In the remaining nineteen states the seat belt laws are what are referred to as secondary law states. In a secondary law state there must be another reason to pull the vehicle over. Motor vehicles in secondary states cannot be pulled over solely because their occupants or driver is not wearing a seatbelt. Statistics released by the NHTSA have shown that in states with primary laws concerning seatbelts the rate of fatalities involving injuries to non-restrained persons is less than in secondary state laws. This implies that there is a positive value in having stricter seat belt laws and particularly in having stricter enforcement measures for those laws.

Another measure of the effectiveness of road safety laws is looking at fatalities prevented due to minimum drinking age laws. The NHTSA estimates that minimum drinking age laws saved 525 lives in 2012. The NHTSA calculates the minimum drinking age laws effectiveness overall to be 13%. It does so by looking at a target age range, in this case 18-20 year olds, and calculating the reduction in involvement of those persons in fatal crashes. They look not only at the death of persons in that target age range but at all deaths that come from crashes and accidents when the driver is in the specified age range. So any accident where a person died and the driver was between 18-20 would be included in the calculation. Minimum drinking age laws are put in place by the states but the Federal Government incentivizes states to keep the minimum drinking age 21 or over by tying Federal funding of highways to it through the National Minimum Drinking Age Act. If a state does not implement a minimum drinking age of 21 or above that state will lose part of the highway funding it receives from the Federal government.
More information about estimating lives saved and the methodologies used in the NHTSA's report can be found in the Lives Saved FAQs. The Lives Saved FAQs goes into much more detail about the purpose of using lives saved as a measurement of effectiveness as well as into the methodologies of how the figures were arrived at.

The full results of the survey can be found on the NHTSA website.

November 26, 2014

Rate of Cell Phone and Electronic Device Use While Driving Remains Steady, Reports NHTSA

The United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) recently released a research note on the prevalence of drivers using hand held devices while driving. NHTSA is tasked with keeping the roads safe. It does so by conducting research on driver behavior and traffic safety, enforcing safety performance standards for motor vehicles and motor vehicle equipment and providing information to consumers and other road users.

The note is based on a survey by the National Center for Statistics and Analysis which along with NHTSA is part of the National Highway Traffic Safety Administration. The survey, the National Occupant Protection Use survey (NOPUS), is the only nation-wide probability based survey of device use conducted in the United States. The NOPUS is based on in-person observation taken by surveyors at intersections during daylight hours. The information is only recorded from stopped vehicles by trained volunteers and the data collected includes such information as age, gender, race and vehicle type (car or truck).

Perhaps counterintuitively, the NOPUS found no statistically relevant increase in the use of drivers text messaging or visibly manipulating electronic devices with the rate increasing only marginally from 1.3 percent in 2011 to 1.5 percent in 2012. Driver's hand-held cell phone use remained steady at 5 percent. The rate of drivers holding a phone directly to their ear while driving also stayed at 5 percent. This figure translates into 66,000 drivers driving while holding a phone to their ear at any given daytime moment during 2012. The statistics also mean that at any given daytime moment in 2012 9 percent of drivers were using some type of device.

distracted driver.jpgThe NOPUS also took into account the demographics of drivers. It found that there was a significant difference depending on gender with female drivers being more likely to be using a cell phone while driving. 6 percent of female drivers held a phone to their ear while driving while only 4 percent of male drivers were observed to be holding a phone to their head while driving. It also found that cell phone use while driving was also higher among younger drivers. Drivers 16-24 years old were most likely to be using a cell phone while driving while those 70 years or older were the least likely to be using a cell phone while driving. Six percent of drivers 16-24 admitted to holding a phone to their ear while driving while only one percent of drivers 70 or older were seen doing the same thing making the age gap significantly wider than the gender gap when it comes to predicting who is talking and driving.

The age gap however was much more apparent when looking at drivers who were visibly manipulating an electronic device while driving, the category that includes text messaging. There was a sharp drop off in drivers who admitted to visibly manipulating a phone while driving based on age, with 3 percent of drivers aged 16-24 doing so, 1.4 percent of drivers 24-69 and only 0.2 percent aged 70 and older. This gap did not occur when looking at drivers speaking with a visible headset where the percentages were very close between the different age groups, a small gap only occurring between the 24-69 and the 70 plus groups.

As of August, 2013 no state had banned all cell phone use by drivers, however eleven states, including New York, had banned the use of cell phones without some kind of hands free device. A driver can be pulled over solely for using a phone without a hand held device, without there being any other traffic violation. A total of forty one states, including New York, and the District of Columbia ban text messaging while driving. In New York the fine for texting or using a cell phone without a hands free device ranges from 50 to 150 dollars for a first offence plus points added to the drivers license.

Distracted driving can lead to a number of dangerous situations, including motor vehicle accidents, pedestrian collisions, even death resulting from a serious accident during which the driver was using a mobile device. Although not all states have implemented tougher distracted driving laws, maintaining focus while behind the wheel is in the best interests of all those sharing the road.

The NHTSA study can be found here.

November 26, 2014

Seat Belt Use Remains Higher In States With Stricter Laws on Seat Belt Use

Recently the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) released a Traffic Safety Facts - Research Note on the topic of seat belts. It reported that nationally in 2013 seat belt use reached 87%. This was up from 86% in 2012, but considered statistically insignificant. The data used in the research note was gathered from the National Occupant Protection Use Survey (NOPUS) which is conducted annually by National Center for Statistics and Analysis of the National Highway Traffic. It is the only probability-based nationwide survey, conducted annually, which reports on seat belt use. The NHTSA was established Highway Safety Act of 1970 as the successor to the National Highway Safety Bureau is a part of the U.S. Department of Transportation. Among its other tasks it collects and publishes statistics and studies on highway and vehicle safety.

seatbelt.jpgCritically, the survey showed that since 1995 there has been an upward trend in seatbelt use. In 1995 only 60 percent of vehicle passengers and drivers wore a seatbelt regularly. This upward trend directly mirrors a decrease in daytime percent of unrestrained passenger vehicle occupant fatalities. Or put more simply as the rate of people wearing seatbelts increased the number of fatal accidents occurring during the day involving people not wearing seatbelts decreased.

Also of note was that in 2013 the number of people wearing seat belts in heavy traffic increased from 89 % in 2012 to 90 % in 2013, an increased deemed statistically significant. This also implies that people are more likely to be wearing a seatbelt when they are driving in heavy traffic. Also of note was that seat belt use in the Northeast increased by four percent from 80% in 2012 to 84% in 2013, while remaining well under the national average of 87%. The highest rates of seat belt use were in the Northwest with a 93 % rate of use.

The survey also found a direct correlation between states with seatbelt laws and those without and between states where a car can be pulled over solely for not using seat belts ("primary law States") as compared with the States with weaker enforcement laws ("secondary law States") or without seat belt laws. In primary law States a vehicle can be pulled over and ticketed only for the driver or passengers not wearing a seat belt, while in secondary law States the driver or passengers may be ticketed but only after the vehicle is pulled over for another reason such as speeding or having expired tags. States with primary law States saw an average usage rate of 91 % while states without any seat belt laws had an average usage rate of only 80 %.

As of May, 2013, 32 states, and the Distinct of Columbia, had primary laws regarding seat belt use, 17 had secondary laws while only one state, New Hampshire, as of May, 2013, had no laws regarding seat belts. At that time in New Hampshire it was legal for all occupants over the age of 18 to not wear a seatbelt.

New York State is a primary law state with laws requiring the use of seat belts, meaning that in New York State a vehicle may be pulled over only for the failure of its driver and or occupants to wear a seat belt. New York State's Occupant Restraint Law requires seat belts for adults riding in motor vehicles and other types of restraints, including booster seats, for children riding in motor vehicles. Front seat passengers over 16 may be fined 50 dollars for not wearing a seat belt. There are additional regulations for those driving or riding in a car driven by a driver holding a learners license. The driver is responsible for ensuring his or her passengers comply with the law and he or she may be levied an additional fine plus points on his or license for failure to comply.

More information can be found here.

November 26, 2014

NHTSA Reports a Increase in Alcohol Impaired Traffic Fatalities in 2012

According to the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA) thirty-one percent of fatal traffic accidents included a driver who had blood alcohol concentration over 0.8 grams per deciliter (g/dL). A blood alcohol concentration over was over 0.8 grams per deciliter is considered to be impaired. This amounted to 10,322 fatal crashed involving impaired drivers in 2012 alone. This includes crashes involving the impaired drivers of motorcycles. This number represents an alarming increase in fatalities of 4.6 percent over 2011 or to put it in even more alarming terms an alcohol-impaired-driving fatality occurred every fifty one minutes in 2012.

The NHTSA was established Highway Safety Act of 1970 as the successor to the National Highway Safety Bureau is a part of the U.S. Department of Transportation and is mandated with reducing deaths, injuries and economic losses resulting from motor vehicle crashes. It does so by conducting research on driver behavior and traffic safety, enforcing safety performance standards for motor vehicles and motor vehicle equipment, grants to state and local governments to enable them to conduct effective local highway safety programs, and providing information to consumers and other road users.

beers.jpgAmong the information provided is a comprehensive rundown of traffic safety facts released annually including date on drunk or impaired driving. It can be found online here. It recently released the statistics from 2012 which showed an alarming increase in the rate of impaired driving. It is important however to note that it is impossible to tell if all of the fatalities in question were caused by impaired driving. However, the large number of fatalities where a driver was found to be impaired, thirty-one percent of all fatalities, points to a strong likelihood that impaired driving and fatalities are linked. Of all the people who died in accidents involving an alcohol impaired driver sixty five percent of those who died were drivers with a blood alcohol content of over 0.8 percent. Twenty-seven percent were other people driving or riding in motor vehicles, of which sixteen percent were passengers in the same vehicle as the impaired driver, and the remaining eight percent were people not in a motor vehicle.

These statistics suggest that the greatest risk from driving while impaired by alcohol is to the impaired driver followed by passengers riding with the impaired driver. While alcohol impaired driving fatalities have overall declined twenty one percent in the last ten years, the uptick in 2012 is worrying. As of 2012 all the states in the union as well as the District of Columbia and Puerto Rico had made it illegal to drive with a blood alcohol content of 0.8 or higher. Time of day also correlated with alcohol impaired driving fatalities, with four times as many fatalities happening at night as occurred during the day. Age also correlated with fatality rates, with thirty-two percent of fatalities having a driver age 21-24, and twenty-nine percent involving a driver aged 25-34. Fatalities were also more common with male drivers as opposed to female drivers.

The NHTSA also breaks down the number of fatalities by state. New York State had 1168 fatalities. Of those, sixty-four percent did not involve alcohol impaired drivers, matching the national average. The number of fatalities increased along with the blood alcohol content of the driver, meaning that the higher the blood alcohol content the more risk of a fatality.

The takeaway from this seems to be that while the overall trend is towards less drinking and driving, 2012 saw a slight uptick in drunk driving fatalities and there is still an alarming number of fatalities involving drivers with well over the 0.8 limit. For those seeking more information about traffic fatalities can be obtained by writing to the National Center for Statistics and Analysis (NCSA), NVS-424, 1200 New Jersey Avenue SE., Washington, DC 20590 or by contacting the NCSA at 800-934-8517 or NCSAweb@dot.gov.

November 26, 2014

New Trial Ordered in Brooklyn Car Accident Case After Jury Verdict Sheet Deemed Unclear

caraccident.jpgIn Ki Tak Song v Oizumit the Appellate Division, Second Department reversed a jury verdict for the defendants and ordered a new trial after it found that the jury was confused when filling out its verdict sheet. The Plaintiff, Ki Tak Song, was suing the plaintiffs Yoko Oizumi and Daniel Oizumi for personal injuries he allegedly suffered in a car accident. Daniel Oizumi was driving Yoko Oizumi's vehicle when it allegedly struck Song's vehicle from the rear. The jury originally found that the defendant's were negligent but that their negligence was not a substantial factor causing the injury to Song. Song's appeal was based on the fact that the jury had filled out two copies of the verdict sheet and that there was evidence that they were confused as to the questions on the first sheet.

A verdict sheet is presented to jurors after the completion of a trial and it presents them with questions about the case which they must answer. In this case the answers on the first verdict sheet were inconsistent. The court had, without further instructions to the jury and without consulting the parties, given the jury a second verdict sheet despite the fact that the answers on the first sheet were internally inconsistant. The plaintiff appealed claiming that the verdict was a product of jury confusion and is inherently inconsistent as a matter of law.

After the verdict was entered the court informed the parties that the verdict was based on answers given by the jury on a second verdict sheet because the jury had been confused by the first verdict sheet and had made a mistake on it. The court told the parties that they had instructed the court officer to give the jury another copy of the verdict sheet to the jury without convening the jury or speaking directly to it. Therefore there was no chance for the court to give the jury instructions on properly filling out the sheet or on the meaning of the questions contained within it. There was also no chance for the parties to challenge any instructions made or examine the first verdict sheet.
The court at this time told the parties that the jury was "scratching out on the first page" and that the jurors would be initialing the mistakes it had made on the first sheet. However, when the party's saw the first verdict sheet after the verdict was entered they saw that what the jury had done was not a simple mistake but a change which covered up an inconsistency on the first sheet. The first sheet asked the jurors "Were the defendants negligent?" next to the question was one signature, normally all jurors will check off either yes or no and sign. Also next to the question all the jurors had put an X next to the answer "no" and a check mark next to the answer "yes." The "yes" was then crossed out and initialed next to.

The form also asked the jurors "Was the negligence of the defendants a substantial factor in causing the accident?" Next to this question the jurors had written an X next to no. However, the instructions told them that if they decided the defendant's negligence was not a substantial factor in causing the accident then they should not answer the subsequent questions including one which allocated blame between the defendants and the plaintiff. They went on to answer these questions, allotting 20% of the blame to the defendants. This implies that the instructions on the form were unclear.

While juries have a right to alter their verdict if it is recorded incorrectly so that it matches their true intentions in this case the court found that because the first sheet was internally inconsistent, and because the jury had failed to initial several of the questions, the Supreme Court had erred in failing to direct the jury to reconsider its original verdict before giving the second verdict sheet to the jury. Therefore the Appellate Court ordered that the judgment be reversed and the case sent for a new trial.

Ki Tak Song v Oizumi, 2014 NY Slip Op 05775

November 25, 2014

Second Department Allows "Expert" Testimony in Brooklyn Slip and Fall Action

On September, 24 the Supreme Court, Appellate Division Second Department overturned a decision by the Supreme Court, Kings County which granted a motion made by the defendants in that case for judgment as a matter of law pursuant to CPLR 4401. CPLR 4401 allows either party to ask for a judgment as a matter of law at any time after the close of the evidence presented by an opposing party. A judgment as a matter of law is a judgment made by the court that the non-moving party's evidence is insufficient to reasonably support its case. The original Supreme Court case was between Chayeh Fleisher and the City of New York. Fleisher claimed that she had slipped on a sidewalk in Brooklyn because the pavement was raised or uneven, and that the City was responsible because it had known of the defect in the sidewalk and had not fixed it in a timely manner. The City is only legally responsible for hazardous conditions created by sidewalks if it has notice of the condition long enough before the accident to be able to fix the problem.

concrete.jpgAccording to Fleisher, the City was made aware of the defect in the sidewalk via a map given to the city by the Big Apple Pothole & Sidewalk Protection Committee. In order to successfully sue the city for injuries caused by her fall, a plaintiff must prove, as per the Administrative Code of the City of New York § 7-201 (c) (2), that the city had prior knowledge of the defects in the sidewalk at that specific location and a sufficient amount of time to fix the problems. The Supreme Court denied the plaintiff's application to admit the Big Apple maps into evidence and further denied her request to admit the maps through the testimony of Irvin Loewenstein, a former Director of Sidewalk Management, and former Director of the Prior Notification Unit of the City's Department of Transportation. It also denied her request to have Loewenstein qualified as an expert in Big Apple maps so he could testify about the contents of the maps at the trial.

The Appellate Court ruled that because Lowenstein had worked for Big Apple Maps on behalf of the Department of Transportation for many years he could be assumed to have the requisite "skill, training, education, knowledge or experience" for which to be considered a reliable expert. Further they decided that this experience would allow him to lay a foundation for the maps to be entered into evidence. Business records are considered exempt from the rule disallowing hearsay to be admitted into evidence. But in order to be entered into evidence business records, regularly kept records kept in the normal course of business, must have a foundation laid for them. This can be done by someone who is familiar with the records; in this case the Court decided that Lowenstein, because he had worked with the maps while with the Department of Transportation, was properly qualified as an expert witness to lay a foundation for the maps.

The Appellate Court's decision is important because disallowing the maps and Lowenstein's testimony would have significantly affected the outcome of the case. Because the plaintiff was unable to introduce the maps the court found for the defendant on its motion for judgment as a matter of law because there was not sufficient evidence to prove that the city knew about the defect, which is a requirement before recovering from the city in these kinds of personal injury cases. Had the evidence been introduced, and there is precedent in other cases where Big Apple maps have been admitted as evidence, there is a good chance the defendant would have prevailed or at least have been able to satisfy the requirement that the City know of the fault. Because of the Appellate Court's decision the case will go back to the Supreme Court for a new trial in which Lowenstein will be allowed to testify, and the maps will be allowed into evidence.

November 4, 2014

Lax Discipline of Nurses Leaves Vulnerable Populations Open To Abuse

Due to the nature of their work, it is important that nurses' professional conduct is regulated to prevent abuses of power. In New York State, such misconduct is regulated by the New York State Education Department's Office of the Professions. It is in charge of the investigation and prosecution of professional misconduct, while the Board of Regents is responsible for the disposition of disciplinary matters. Penalties for misconduct vary from fines, license suspension to, in extreme cases, the loss of a license altogether. There are, however, questions as to whether the penalties given to nurses who commit misconduct are adequate to prevent further misconduct, and prevent nurses who have problems with drugs and other substances from practicing while intoxicated.

nuse.jpgSummaries of investigations and penalties assessed are available online on the New York State Education Departments website listed by last name and by date. While such summaries do not give very much information about the circumstances of the misconduct, they can provide a general overview of the regulatory process and the range of misconduct dealt with by the Education Department.

The misconduct ranges from nurses who have committed crimes that on their face are not connected with their professional lives, such as driving while intoxicated, to misconduct on the job such as failure to comply with infection prevention techniques. In September, 2014, out of fifty-one cases, eleven dealt with driving while intoxicated and several were for errors in medication administration or maintaining patient records. The prevalence of driving while intoxicated cases may point to a problem with substances in the nursing profession.

This volume of cases, coupled with limited information provided (often a terse paragraph such as "licensee admitted to the charge of failing to witness a patient ingest medication that she was ordered to administer to him"), makes it hard to determine the scope of misconduct and whether the current regulatory framework is doing enough to prevent and punish nurses who commit misconduct. A recent New York Post article entitled "Nurses getting wrist slaps for incompetence, drug use" illustrates the scope of the problem. The Post points out that in the New York City area fifty nurses are disciplined by the Board of Regents each year and many receive nothing more than a slap on the wrist for instances of serious misconduct.

The Post highlights the case of Kathy Dzus who was disciplined for working while high on cocaine. The summary on the Department of Education website reads "licensee did not contest the charge of practicing the profession of nursing while the ability to practice was impaired by drugs." The Post was able to get more information through a freedom of information request while the official site does not go into any degree of detail. Dzus was only given 2 years probation, a 2 year stayed suspension, and a five hundred dollar fine. Because her suspension is stayed she is free to work with patients immediately despite the danger she previously put them in by working while on cocaine.

Dzus is not the only nurse whose penalty appears insufficient given the severity of her misconduct. When asked about the disparity between the misconduct and the penalty, the Board of Education told the Post that the agency does not actively seek out incidents of misconduct, but that it waits to get reports of misconduct before taking action. Given the importance of nurses in patient care and the intimate nature of their work, it appears that a more rigorous process for investigating abuse needs to be in place to prevent nurses who have substance abuse problems from working while intoxicated or under the influence.

October 30, 2014

Case Study: The "Serious Injury" Threshold

Lonnie Gates was rear ended by a truck owned by Sears, Roebuck and Co. and driven by Gene H. Longden. Under New York State's no-fault insurance rule, a person injured in an automobile accident may recover for medical bills and other economic damages from the insurance company covering the vehicle they are riding in, or are hit by, regardless of who was at fault in the accident. This recovery is limited to economic damages up to fifty thousand dollars. The damages recovered from the insurance company are meant to replace the right to sue for damages unless the plaintiff suffers a "serious injury".

Many cases involving the no-fault insurance rule revolve around the definition of "serious injury." New York Insurance Law § 5102 [d] defines serious injury as "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." Therefore, in order to have a right to sue, a plaintiff who has been injured must claim that he has suffered a serious injury fitting into this definition.

rear end2.jpgGates sued, claiming that he had been seriously injured in the accident. The defendants, Longden and Sears, moved for summary judgment. To grant summary judgment,the court must determine that no questions of fact exist that must be decided by the jury. The defendants claimed that Gates did not suffer a serious injury and that, if the court found that he had, it was not caused by the accident in question. Gates cross-moved for summary judgment on the issues of liability, proximate cause and serious injury.

The Supreme Court, Onondaga County, denied the defendants' motion for summary judgment, but the Appellate Division, Fourth Department reversed. The Appellate Court however only reversed the Supreme Court's decision to deny summary judgment in part. The Appellate Court found that the Supreme Court did not err in using its discretion not to consider the affidavit of defendants' expert who was a engineer and not a medical doctor. Because the Supreme Court did not consider this testimony, the defendants failed to meet their burden to prove that the injury was not caused by the accident and summary judgment was rightly denied on this point.

The court also ruled that the Supreme Court did not err in denying the defendants' motion for summary judgment as to significant disfigurement. It found that it was a question for the jury whether a large scar on the lower back constitutes a significant disfigurement. A significant disfigurement is defined as a condition caused by an accident that can be seen "as unattractive, objectionable, or as the subject of pity or scorn." The court also found that because Gates had missed six weeks of work while confined to his home following the injury, a case may exist for a significant injury based on a serious limitation.

For the case to go forward to trial, Gates must only provide evidence that there is a question as to whether his injuries fit within the definition of "serious injury" laid out in New York Insurance Law § 5102 [d]. The court's decision in this case means that it is a question that must be decided by the jury at trial whether a large scar on the lower back, or six weeks of confinement and missed work, fall within the definition of serious injury.

Gates v Longden, 2014 NY Slip Op 05744

October 30, 2014

Hospital Not Responsible For Slip and Fall When It Did Not Cause And Had No Notice Of The Danger

Cassondra Williams sued the County of Erie and Erie County Medical Center Corporation after she slipped and fell in a corridor of the Erie County Medical Center while at work. Williams worked for a company that provided food service to the hospital and the corridor in which she fell was used primarily by her employer to delivery food. Building owners have a responsibility to those using the buildings to provide a safe environment. But when suing the owners of a building or space the plaintiff has the burden of proving that the owners either created a dangerous condition or had constructive notice of the condition.

The Supreme Court, Erie County granted summary judgment to the hospital dismissing the case, finding that Williams failed to prove that the hospital had either created the condition or had known about it before she fell. Summary judgment is a decision made by a court that there is no triable issue of fact to be decided. As such the only issue to be decided is an issue of law. Because juries decide the facts and judges apply the law, when no question of fact exists the court can grant a motion for summary judgment. This serves prevent cases in which there is no dispute of fact from going to trial.

To prove that they had not caused the accident the defendants presented evidence that had come to light in a New York General Municipal Law § 50-h hearing. A General Municipal Law § 50-h hearing when a notice of claim is filed against a municipality such as a city, county, fire department, or school district. In a 50-h hearing the parties may be questioned and the claimant may be required to be examined by a physician. Evidence brought to light in a 50-h hearing maybe entered into evidence by either party at a later civil trial. The evidence from such a hearing can form the basis for a summary judgment as it did in this case

The defendants, the hospital and the county, presented evidence that they did not create the danger and did not know about it prior to Williams' accident. Additionally, they presented evidence that they had cleaned the dietary corridor with an autoscrub machine during the overnight shift preceding the daytime shift that Williams worked. Williams arrived at 6:30 am, several hours after the autoscrub machine had finished, giving time for any leftover water to dry. The defendants also submitted evidence that during the daytime shift the main use of the corridor was by the company who employed the plaintiff, and that because of this, contractually, the plaintiff's employer was solely responsible for cleaning and maintenance of the corridor. The plaintiff had testified in the hearing that she did not see any water on the ground before she fell at 9:00 am and that she had not seen any water on the ground before her fall. She claimed that an employee of the hospital, as opposed to herself or one of her co-workers, had spilled the water. The court found that because her employer was in charge of cleaning and maintenance, and because the autoscrub had finished many hours earlier, the hospital had not created the danger.

However, the hospital could still have been found responsible for the accident if they had constructive notice, meaning that they should have know or a reasonable person would have known that there was a dangerous condition in their building. The court laid out the well established law that a dangerous condition "must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant . . . to discover and remedy it." The court found that because Williams did not see the water several minutes before her accident there was no way the hospital could have had constructive notice of the danger. The Appellate Division, Fourth Department, agreeing with the Supreme Court, upheld the decision of the lower court, granting summary judgment in favor of the hospital.

Williams v County of Erie 2014 NY Slip Op 05067