April 16, 2015

Study: Eating while Driving Accounts for 80% of All Car Accidents

Each year, an astonishing 1.3 million people die in car crashes, and a whopping 20-50 million are injured. Car accidents are the 9th leading cause of death among adults and the #1 cause of death among young people. These crashes cost U.S. citizens over $230.6 billion each year. The vast majority of these accidents are caused by negligent and reckless drivers.

fries.jpgIn fact, a new study by the National Highway Traffic Safety Administration, described in the NY Daily News, has shown that 80% of car accidents in the U.S. are caused by distracted drivers who are eating while driving. While many drivers feel confident in their multitasking abilities, the facts show that eating while driving is dangerous. An alarming 70% of drivers eat while driving, and 83% drink beverages. Eating and drinking distracts drivers. Rather than focusing on the road, drivers are focused on rooting around in the bag for the last French fry and unwrapping a sandwich.

The National Highway Traffic Safety Administration found that burgers are the most commonly eaten food during food-related car accidents. Given the prevalence of fast food restaurants and the relative ease of grabbing a burger to-go from a drive thru, this is not surprising. What is surprising, though, are the other top contenders on the list. Soup, tacos, chili dogs, ribs, wings, fried chicken, jelly donuts, and chocolate are all top culprits. In addition, coffee and soda have been notorious for causing spills that distract drivers and cause 65% of near misses.

One of the main reasons why distractions such as food and drinks cause so many accidents annually is that reaction time is seriously hampered. If a driver cuts you off, there is an unexpected dip in the road, or debris is flying toward your car, you can't react fast enough to swerve out of the way when you are focused on cleaning spilled coffee off of your jeans.

Despite its large population of 19.6 million residents, New York trends toward the bottom in a ranking of states by number of deaths per 100,000 drivers. Approximately 127,726,000 million miles are driven annually in New York, resulting in 1,199 deaths in 2013. If you are involved in a car accident in the state of New York, follow our tips for what to do post-crash to stay safe and build a case against the responsible party.
First, if someone hits your car, pull over into a safe location out of the way of oncoming traffic. Put your hazard lights on, and if available, place cones or hazard signs on the road behind your car. It is helpful to carry a car emergency kit in your trunk at all times that will include flares, a flashlight, hazard signs, and more.

After pulling over, call 911 to report the accident. New York State Vehicle and Traffic Law requires that any accident involving damage of $1,001 or more or injury or death must be reported to the police. In addition, the law requires that drivers exchange information regardless of the amount of damage. This information includes driver's license number, insurance, and registration.

After dialing 911, make sure you and other passengers are not injured. If there are no injuries, survey the damage. Take photos with your cell phone of the damage to your car and the other car. If there are any witnesses, get their contact information. When the police arrive, try to have any witnesses give statements to the officer. Make sure to tell the officer everything you remember, including how fast you were driving, what the driving conditions were like, whether you saw the other party's car, and any potential injuries. You can obtain a copy of the police report from the local police precinct or through the DMV.

If you are able to drive your car away from the crash site, call your insurance company when you get home to notify them of the accident. Then call the insurance company of the other driver. You will likely be asked to give a recorded statement of what happened.
If you or a loved one was injured in a car accident, contact the New York auto injury expert attorneys at Gallivan & Gallivan today to discuss your case.

For additional information, please see:

Annual Global Road Crash Statistics, Association for Safe International Road Travel;

General Statistics, Insurance Institute for Highway Safety Highway Loss Data Institute;

Motor Accident Reports, New York Department of Motor Vehicles

April 15, 2015

Doctor Faces Medical Malpractice Claim for Failing to Diagnose Cancer

The Supreme Court of the State of New York, First Judicial Department affirmed an order by the Supreme Court of New York County that had dismissed a doctor's motion for summary judgment that sought dismissal of a case alleging that the doctor failed to diagnose pelvic cancer.

The plaintiff had a long and tumultuous history of cancer. Despite being aware of this, plaintiff's doctor failed to diagnose a cancerous mass in the plaintiff's pelvis. At the time, the plaintiff was undergoing IVF procedures with the gynecologist doctor. IVF, or in vitro fertilization, helps women increase their chances of carrying a child to term by implanting fertilized eggs into their uteruses. This form of pregnancy is referred to as in vitro because the sperm fertilizes the egg in a laboratory dish before then being carefully injected into the uterus. The IVF procedure is long and complex. Prior to beginning IVF, patients generally seek supervised treatment from gynecologists, including ultrasound scans of their ovaries and uteruses, hormone injections, and more.

During this time period, the plaintiff had a cancerous mass in her pelvis that went undetected and undiagnosed by the gynecologist defendant overseeing the IVF procedure. The plaintiff brought a medical malpractice claim for failure to diagnose.

The defendant filed a motion for summary judgment, arguing he was entitled to judgment as a matter of law. In his motion, the defendant included the opinion of an independent medical expert. However, this medical expert failed to properly address the plaintiff's allegation that the doctor had not properly diagnosed the cancer and that the doctor's malpractice had not proximately caused her injuries. Because the defendant failed to make a prima facie showing that he was entitled to dismissal of the case, the burden never shifted to the plaintiff to raise an issue of fact.

In general, when a party files a motion, it is that party's burden to prove the motion. If that party is able to prove in their motion for summary judgment that there is no triable or disputed issue of fact, then they have built what is known as a prima facie case. The court must view the evidence in the light most favorable to the non-moving party. A prima facie case, if unrebutted by the non-moving party, will require that the motion be granted and the case dismissed. However, if a prima facie case has been built, the burden will then shift to the non-moving party to then raise a triable issue of fact.

Here, the defendant argued there was no disputed issue of fact. However, the defendant's expert testimony did not support this conclusion or rebut any of the allegations in the plaintiff's complaint, if viewing everything in the light most favorable to the plaintiff. Thus a prima facie case was not built. Because one was not built, the burden never shifted to the plaintiff to then raise a triable issue of fact regarding the failure to diagnose.

With that said, even though it was not her burden to do so in this case, the plaintiff did successfully raise an issue of fact. The plaintiff's expert, a gynecological oncologist, testified. This expert stated that a transvaginal ultrasound, commonly used by gynecologists, would have been more accurate in detecting the pelvic cancer. In addition, the expert opined that the cancer should have been discovered earlier because it was an endometrial sarcoma, which is a low-grade and slow growing cancer. Thus the defendant doctor should have discovered the cancer during the length of time the plaintiff was in his care.

As expected, the defendant's and plaintiff's experts offered competing opinions and conclusions. Due to the competing opinions, there was a genuine dispute of material fact regarding the cause and the progression of the disease. This was for a jury to decide, not a judge during a summary judgment motion. It is the job of the jury to act as the fact finder for disputed facts, not the judge.

If you or a loved one has suffered injury due to medical malpractice or a misdiagnosed illness, contact the New York medical malpractice expert attorneys at Gallivan & Gallivan today to schedule a consultation.

Carnovali v. Sher et al., 2014 NY Slip Op 07252

April 15, 2015

Appellate Division, First Department Orders that Inconsistencies in Plaintiff's Evidence Preclude Summary Judgment

The Supreme Court of the State of New York, Appellate Division, First Judicial Department reversed an order by the Supreme Court of Bronx County that granted the plaintiff's motion for partial summary judgment in a scooter accident case.

The plaintiff was riding a scooter northbound on Riverside Drive, a two-way street, when he encountered the defendant. The defendant, driving a car, was waiting in the left turn lane of southbound Riverside Drive. When the defendant attempted to turn left onto 88th Street, she hit the plaintiff's scooter in the intersection. A police officer responded to the scene of the crash and spoke with the plaintiff and an eyewitness. According to the certified police report, the plaintiff told the officer he didn't remember anything before the crash. However, an eyewitness told the officer that while the defendant caused the accident when she pulled into oncoming traffic, the plaintiff was driving his scooter at 40 to 50 miles per hour.

The plaintiff filed a motion for partial summary judgment on the issue of the defendant's liability for the car crash. The plaintiff argued that the defendant's conduct while driving, as well as her confession that she never saw him or his scooter until after the crash, was enough to establish a prima facie violation of the Vehicle and Traffic Law. In support of his motion, the plaintiff included the certified police report. The plaintiff also included an affidavit from himself, as well as an affidavit from the eyewitness. However, the affidavits contradicted the police report. In his own affidavit, the plaintiff said he did remember the crash and that he had attempted to brake before the crash. The eyewitness's affidavit stated that the plaintiff appeared to be driving at the speed of the normal flow of traffic at that time.

The defendant opposed the motion, arguing summary judgment was not proper because the plaintiff's motion, police report, and affidavits did not prove where the plaintiff was in the intersection when the defendant began the left turn. In addition, the defendant argued that it was still disputed whether the plaintiff was speeding at the time of the accident and whether the plaintiff had used reasonable care to avoid the accident.

Here, the plaintiff alleges the defendant violated Vehicle and Traffic Law Section 1141. This law states that any driver turning left must yield the right of way to a driver approaching from the opposite direction who is either in the intersection or close enough to create an immediate hazard. Thus, if the plaintiff proves that his scooter was in the intersection or close enough to create an immediate hazard or risk of a crash, yet the driver attempted to turn left anyway without yielding to the plaintiff, then the plaintiff should win.

However, the defendant does have some cognizable defenses. First, courts in New York require that a victim of the car crash use reasonable care to avoid the accident. This may be why the plaintiff decided to include an affidavit in which he stated that he had attempted to brake prior to the accident. This was meant to serve as proof that he had used reasonable care (braking) to avoid the crash.

Second, motions for summary judgment or partial summary judgment are only to be granted when there is no issue at dispute for the court to try. The plaintiff is attempting to argue that there is no dispute as to whether the defendant violated the law on left turns. However, this is not necessarily the case. By introducing the police report and the affidavits into the record as attachments to the motion for partial summary judgment, the court is now aware of inconsistencies in the plaintiff's claims. This creates an issue of material fact. Was the plaintiff speeding at the time of the crash? Did the plaintiff act negligently, and if so, did this negligence contribute to the cause of the crash? Did the defendant violate Vehicle and Traffic Law Section 1141? Because these issues remain outstanding, the lower court's order granting the plaintiff's motion for partial summary judgment was reversed so that the court can try the outstanding issues.

If you or a loved one has been injured in an auto accident, please do not hesitate to contact the New York automobile injury expert attorneys at Gallivan & Gallivan today to discuss your potential claim.

Espinal v. Volunteers of Am.-Greater N.Y., Inc., 2014 NY Slip Op 07260

April 15, 2015

Appellate Division, First Department Holds City of New York May Be Liable for Icy Slip-and-Fall

The Supreme Court of New York, Appellate Division, First Department has reversed an order issued by the Supreme Court for New York County that granted the City of New York's motion for summary judgment and dismissed the plaintiff's complaint that an icy patch caused her to fall and injure herself.

frozen.jpgOn December 23, 2008, the plaintiff was walking on a public sidewalk when she slipped on some ice and fell. She later filed a lawsuit against the City of New York, alleging the City failed to timely clear the sidewalk of ice in order to prevent her fall. The City filed a motion for summary judgment to dismiss the complaint.

As a matter of law, a motion for summary judgment will only be granted if no genuine issue of material fact exists that needs to be decided by a jury. In its motion, the City argued several things. First, the City argued that the plaintiff contradicted herself in her affidavit and her deposition regarding what exactly she slipped on. At her deposition, the plaintiff described the ice as "dirty" with "snow layers on top of layers." The plaintiff later clarified in her deposition that the ice was "slushy ice" that was "clean, like slippery, flat" with a little snow on top. However, in an affidavit submitted in opposition to the City's motion for summary judgment, the plaintiff stated that the ice was "one inch thick, flat, hard, and dirty, as if it had existed for several days." The appellate court held the deposition was not inconsistent with the affidavit. In addition, the appellate court held it generated a dispute of fact that needed to be tried, not decided on a motion for summary judgment.

Second, the City argued that it did not have a sufficient amount of time prior to the fall to clear the ice off of the sidewalk. The appellate court has held previously that snow and ice left on a sidewalk following a storm creates an "unusual and dangerous condition" and that it is the responsibility of the City, if a public sidewalk, to clear the sidewalk of snow and ice within a reasonable amount of time following a storm. Interestingly, the City claimed in its motion for summary judgment that it routinely clears streets after a snow storm but is not in the habit of clearing sidewalks. Regardless, the appellate court held that whether the duty to clear the sidewalk after the storm was triggered was a triable issue of fact that could not be decided on a motion for summary judgment.

In its motion, the City included no affidavit of an expert witness such as a meteorologist. Rather, the City's attorney made broad, sweeping conclusions about the weather. However, the parties did agree about the nature of the weather. On December 19th, four inches of snow fell. On December 20th, 0.5 inches of snow fell. On December 21st, 0.2 inches of snow fell. On December 21st after the snowfall, non-freezing rain then fell, and the temperatures hovered above freezing. On December 23rd, the average temperature was 21 degrees and never went above freezing. The City argued that the ice had formed only 48 hours before the fall but provided no analysis of the weather data to support this conclusion.

In her opposition, the plaintiff demonstrated there was a triable issue of fact regarding the source of the ice. Using the expertise of a meteorologist, the plaintiff argued that the ice came from the snow storm on December 19th, four days before the fall. The meteorologist opined that the non-freezing rain storm could not have caused any ice due to the high temperatures.

Because summary judgment on a snow or ice case requires both climatological data and expert opinion, the defendant's motion for summary judgment failed. Therefore, the lower court erred in granting the motion. The lower court's order is reversed, and the complaint is reinstated.

If you or a loved one was injured in a slip-and-fall after a storm, please contact the New York slip-and-fall expert attorneys at Gallivan & Gallivan to discuss your case today.

Rodriguez v Woods, 2014 NYSlipOp 06887

April 7, 2015

Fourth Department Holds Employer Liable for Unsafe Scaffolding

In its January, 2015 Decision, Bernard & Bernard v. Town of Lysander, 2015 CA 14-00649, the Appellate Division, Fourth Department has reversed an order of the Supreme Court of Onondaga County that denied the plaintiffs' motion for partial summary judgment relating to a fall that was caused by unsafe scaffolding at a construction site.

scaffold2.jpgThe plaintiff, a construction worker employed by the local government, was building a sewage treatment pump house when the accident occurred. At the time of the accident, the plaintiff was installing Hardie trim boards. In order to reach the upper level of the wall of the pump house to install the remaining boards, the plaintiff and a co-worker constructed a makeshift scaffold. The employer had provided only a 14-foot-long aluminum scaffold plank, so the plaintiff was forced to make do by placing one end of the plank into the bucket of a backhoe and nailing the other end to two pieces of wood that were attached to the side of the pump house. While precariously perched on this makeshift scaffold without any proper safety equipment, the plaintiff fell to the ground after the nails in the wood gave way. The plaintiff broke his ribs, injured his spine, and perforated a lung.

The plaintiff filed suit against the government employer for one count of violating Labor Law 240. Labor Law 240, also known as the Scaffolding Act, requires the employer to provide adequate safety protection for the worker, such as harnesses. The goal of Labor Law 240 is to protect the welfare of construction workers who must risk their safety by working at elevated heights, such as on scaffolding or ladders. By requiring adequate safety protection, Labor Law 240 ensures that employers utilize proper safeguards and punishes employers who shirk the requirement by imposing liability.

Following discovery, the plaintiff moved for partial summary judgment, arguing that the employer had failed to provide adequate safety protection as required by Labor Law 240. The employer opposed, arguing that there was a triable issue of fact regarding whether the plaintiff's construction of the makeshift scaffold was the proximate cause of the fall. The Supreme Court of Onondaga County denied the plaintiff's motion for partial summary judgment.

The Appellate Division, Fourth Department, held that the lower court erred in denying the plaintiff's motion. A motion for partial summary judgment can be made by either party and requests judgment as a matter of law on part of a claim or defense. In order to be successful, the party filing the motion must show that there is no genuine dispute of material fact regarding that part of the claim or defense. This means that there is no disputed issue that can be tried in court.

The appellate court held that the fact that the scaffolding gave way while the plaintiff was standing on it was sufficient proof that the scaffolding did not provide proper protection as required by Labor Law 240. In addition, the fact that the employer provided only the 14-foot-long aluminum plank and no safety gear, such as harnesses or safety lines, was further proof that the employer violated Labor Law 240. The appellate court held that it was not the responsibility of the plaintiff to attempt to fashion scaffolding out of the random supplies he had access to.

Finally, the appellate court addressed the employer's proximate cause argument. A proximate cause is a cause reasonably foreseeable as a result of the negligence. The employer argued that the plaintiff's shoddy construction of a makeshift scaffold was the proximate cause of the injuries. However, the appellate court held that the employer's failure to provide safety equipment contributed to the injury. Because Labor Law 240 does not permit the defense to argue that the plaintiff contributed to the cause of the injury through his own negligence, the appellate court permitted partial summary judgment on this issue.

If you or someone you love has been injured on a construction site due to the negligence of an employer, call the New York Labor Law attorneys at Gallivan & Gallivan today to discuss your potential claim.

April 7, 2015

Appellate Court Holds School Not Liable for Snowy Slip-and-Fall

The Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department reversed an order by the Supreme Court of Erie County that denied a school's motion for summary judgment in a slip-and-fall case. Gilbert & Gilbert v. Tonawanda City School District and Mullen Elementary School, 1274 CA 14-01026 (Jan. 2, 2015)

snowy steps.jpgMidday on January 21, 2011, the plaintiff was at the school owned by the defendant. When exiting a door and walking down a flight of icy outdoor stairs, the plaintiff slipped, fell, and injured herself. She filed suit against the school district, alleging the school was negligent in failing to clear the stairs of snow and ice. The defendant filed a motion for summary judgment, arguing that the school did not have a duty to clear the stairway at the time of the fall because of an ongoing snowstorm.

The lower court held an evidentiary hearing on the motion. At the hearing, a meteorologist testified for the defendant. This meteorologist testified that a snowstorm began the evening of January 20, 2011 and lasted through the evening of January 21, 2011. Thus, the fall occurred during the middle of the snowstorm. In addition, two teachers testified for the defendant. The two teachers testified that a snowstorm was raging at the time of the fall. The teachers remembered icy conditions, wind whipping snow around, and extremely cold temperatures at the time of the fall. After the hearing, the lower court denied the defendant's motion for summary judgment.

A motion for summary judgment will be properly granted when there is no material issue of triable fact for the court to consider. This means that there is no issue in dispute or in contention that the court needs to decide. If there is an issue in dispute, the proper way to decide it is through a trial, not a motion for summary judgment. However, motions for summary judgment are available for both plaintiffs and defendants to use to reduce costs, increase efficiency, and reduce burdens on the court regarding litigating undisputed issues.

One unique facet of motions for summary judgment is that the court is allowed to consider evidence outside of the complaint itself. This can come in the form of evidence, affidavits, or additional pleadings provided by the parties, or the court can hold an evidentiary hearing to gain more insight into the issue, which is what the trial court opted to do in this case.

The appellate court held that the lower court erred in denying to dismiss the plaintiff's case. The appellate court held that the testimony and evidence presented by the defendant at the evidentiary hearing was sufficient to prove that a snowstorm was in fact occurring at the time of the accident. New York law does not require a business or homeowner to remove snow or ice "until a reasonable time has elapsed after cessation of the storm." Individuals are not required to immediately begin clearing sidewalks or stairs once a lull or break in the storm occurs. Rather, they may wait a reasonable amount of time after the storm fully ends. Thus, the appellate court held that the defendant did not have a duty to begin clearing the stairway at the time of the fall as the storm was ongoing at that point.

In addition, the appellate court held that there was no triable or disputed issue and therefore granted summary judgment to the defendant. The plaintiff argued that there was a triable issue of fact regarding whether the snowy or icy conditions on the stairs existed prior to the storm and whether the school was on notice of this pre-existing condition. However, the appellate court held that the plaintiff had not properly raised this in her complaint or at the hearing and that the plaintiff had not provided evidence that the school had any notice of a pre-existing condition. As such, the lower court's order was reversed, and the case was dismissed.

If you or a loved one was injured during a slip-and-fall accident, please contact the New York personal injury lawyers at Gallivan & Gallivan today to discuss your potential claim.

April 7, 2015

Hospital Patient Denied Punitive Damages in Shared Needle Case

The Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department has modified an order issued by the Supreme Court of Cattaraugus County that denied a hospital's motion to dismiss the plaintiff's complaint. Beville v. Olean General Hospital and Upper Allegheny Health Systems, Inc., 1460 CA 14-00944

syringe1.jpgIn 2011, hospital staff administered several insulin injections to the plaintiff during a stay at the defendant's hospital. Several years later, the plaintiff received a letter from the hospital stating that the hospital had discovered that one or some of the needles used to inject insulin into the plaintiff may have been shared with multiple patients. In its letter, the hospital offered free testing for hepatitis B, hepatitis C, and HIV.

Distraught by this revelation, the plaintiff filed suit in Cattaraugus County for negligence and emotional distress. In her complaint, the plaintiff argued that the hospital was negligent by allowing insulin pens to be used on multiple patients and the fear of contracting a deadly blood-borne virus caused emotional distress. The plaintiff also sought punitive damages against the hospital.

The hospital filed a motion to dismiss the plaintiff's entire complaint under CPLR 3211(a)(7). The lower court wholly denied this motion. CPLR 3211 is the New York civil procedure rule regarding motions to dismiss. There are several grounds on which a defendant may seek to dismiss a case under CPLR 3211, such as a lack of documentary evidence. The most common ground for a motion to dismiss, however, is CPLR 3211(a)(7)'s "failure to state a claim upon which relief may be granted." The court must view the evidence in the light most favorable to the plaintiff when deciding a motion to dismiss. The court is not to decide the motion on whether the plaintiff's complaint has structural defects but rather whether a claim actually exists. In its motion to dismiss, the defense may articulate defects in the complaint. In the event that the complaint is unclear or fails to include a technical pleading requirement, the proper remedy is to provide the plaintiff with an opportunity to amend the complaint, not dismiss the complaint.

Here, the appellate court held that the lower court properly denied the hospital's motion to dismiss the entire complaint for failure to state a claim. The appellate court held that the plaintiff successfully alleged both negligence and negligent infliction of emotional distress on behalf of the hospital. However, the appellate court did dismiss the plaintiff's claim for punitive damages. Punitive damages are fines or fees assessed against a defendant as punishment for its wrongdoing. Punitive damages can only be assessed in cases involving wrongdoing so severe that it was only caused by wanton dishonesty, criminal indifference, or a lapse in morality. The appellate court in this case found that the complaint did not provide any evidence that the hospital acted in bad faith regarding the sharing of insulin needles and thus dismissed the claim for punitive damages. The appellate court modified the lower court's order by granting the hospital's motion to dismiss with regards to the punitive damages claim only.

Shared needles are surprisingly common at hospitals. Due to health code regulations and the risk of transmitting an infectious or blood-borne virus between patients, hospitals are prohibited from sharing or reusing needles. While the hospital in this case did the right thing by informing the plaintiff of the issue, the news came two years after the actual mix-up. If the plaintiff had contracted a deadly virus due to the mix-up, this delay in informing the plaintiff could have cost her valuable treatment time if undetected.

If you or a loved one has been the victim of shared needles or other contamination at a hospital, you may have a claim for negligence and other injuries. Contact the experienced medical malpractice attorneys at Gallivan & Gallivan today to discuss your potential claim.

March 11, 2015

The Latest on the Joan Rivers Personal Injury Lawsuit

As the reader is no doubt aware, on September 4th of this past year legendary comedienne and red carpet host Joan Rivers tragically died during a medical procedure. She was 81 years old and reportedly in excellent health, making the death a shock and surprise to both her fans and her loved ones. Since then, the medical procedure and the professional staff who performed it have been under the legal microscope, as questions have been raised about medical negligence leading to Ms. River's untimely demise.

As a brief review (we've covered medical malpractice lawsuits on this blog before), medical malpractice is essentially simply negligence committed by a medical professional. There are some wrinkles not found in non-medical negligence cases, most notably how to determine the standard of care owed to a patient. The clearest way to express this is to understand that not every negative medical outcome, up to and including death, is malpractice. Sometimes, procedures come with inherent risks, and a patient who understands those risks and chooses to undergo the procedure anyway in effect assumes said risks. As such, the issue in the Joan Rivers case, like many medical malpractice cases, is: would we expect death to be a significant and substantial risk of the procedure Ms. Rivers underwent?

forceps.jpgA wrongful death lawsuit was filed in late January, and the complaint and supporting documentation provided some previously unknown details. The medical details are highly technical, as you would imagine, so it may help to simplify a bit. Ms. Rivers signed forms consenting to a few procedures, which were intended to assist in diagnosing her stomach reflux issues and sudden voice changes: an upper endoscopy, a possible (not unless necessary) biopsy, and a possible dilation of the esophagus. The lawsuit claims first that these were not the only procedures performed on Ms. Rivers. She could not have given consent to the other procedures, ergo, she could not have assumed the risk of said procedures. In medical malpractice law, this is known as the doctrine of informed consent, and you can read the New York statute addressing the doctrine here.

But the lawsuit actually goes further. Not only were additional procedures performed (for what are rumored to be extremely suspect reasons involving medical curiosity and publicity), but one of the doctors performing them is claimed not to have had privileges to perform surgery at the medical center where Ms. Rivers was being treated. As a result, this doctor left the room "when Ms. Rivers started to deteriorate" because she knew she was not supposed to be practicing surgery there in the first place. If true, this is a stunning breach of duty and care and displays a shocking lack of proper judgment from a licensed medical professional.

The lawsuit also alleges what we can think of as more garden-variety negligence: the doctors simply did not do what we would expect doctors of their training and experience to do in this situation, and severe injury (in this case, death) resulted from that failure. I encourage you to read this Washington Post article to see, step by step, how a fairly routine surgical procedure can become a tragedy, explained in easy to follow terms.

Taken as a whole, the suit is comprehensive, legally compelling, and devastating to the professionals involved. Claimed damages are in the millions, which does not seem unreasonable considering how Ms. Rivers up to the day of her death was considered an unstoppable workhorse. Bookmark our personal injury blog to check back for the latest news on the lawsuit, which may wind up heading to trial.

March 6, 2015

The Various Forms of Car Accident Liability in New York State

This post will outline a bit of the actual legal reasoning and process behind car accident personal injury lawsuits, using some recent examples of media-reported accidents as case studies. Most people seem to understand that when someone who is driving negligently injures the person or property of another, they should pay (or their insurance company should). But this seemingly simple proposition actually has a great deal of law, worked out through both courts and legislatures over years, behind it.

crash3.jpgConsider this recent example, from the New York Post: a driver fleeing police during a high-speed chase slams into a pedestrian and nearly kills him. Most basically, the driver is almost certainly liable to the pedestrian under a theory of negligence. Why? Because we know two things: the driver was speeding, and the driver was fleeing from police. Both of these acts represent a breach in the so-called "duty of care" a vehicle driver owes a pedestrian. Think of the legal duty of care this way: a driver acting in concert with such a duty would be driving as a reasonable person would under the circumstances: at or under the speed limit, both hands on the wheel, paying close and careful attention to his or her surroundings and the police cruiser attempting to force the driver to stop. A breach of this duty - a failure to behave in this way - that leads to an injury, causes liability.

(This is a topic for another post, but it is not unheard of for police departments to get sued for negligently engaging in a vehicle chase. There certainly can exist conditions where an innocent bystander is injured because police officers refused to give up even when a chase became exceedingly dangerous to pedestrians.)

In a more tragic case, again from the Post, a Queens teenager swerved into oncoming traffic, resulting in an accident that killed his co-passenger. According to the Post, police believe speeding was a factor. While the negligence is not quite as clear cut in this example as in the previous, I bring this case up to highlight the fact that pedestrians are, from the point of view of the law, not the only possible plaintiff/victim's in a personal injury suit. Willingly entering a vehicle does not mean automatically accepting the risk of injury from the driver's negligence. Lawsuits like this most often come about from drunk driving accidents - a drunk driver is both criminally and civilly responsible for hurting his fellow passengers, and this is the case even if those passengers entered the car with the full knowledge of his drunkenness. It is not an "excuse" that the passenger chose to ride along. Negligence is negligence, and harm remains harm.

In future posts, we'll use other recent examples of motor vehicle negligence to highlight a few other ways the law seeks to reimburse innocent victims civilly, and we'll particularly take a look at the so-called "No Fault Law" that stands so prominently in the minds of many personal injury attorneys in this state. As always, if you think these factual scenarios could apply to you, contact our firm to sort through your options. Even a consultation can bring some clarity to a confusing legal scenario.

February 4, 2015

Proposed Budget Would End Physician Profile Website

Governor Andrew Cuomo's proposed budget would eliminate nydoctorprofile.com, a state-run website that provides information to current and prospective patients about New York doctors' education, areas of practice, professional activities, and legal action taken against them. According to the governor's proposed budget, the site is duplicative, as much of the information on it can be found elsewhere on the internet.The key difference is that this site is operated by the NY Department of Health, whereas many other sites are run privately. The DOH site is also free, while some other sites are pay per usage.

The doctor profile site provides numerous valuable research tools for individuals seeking a new health care provider. The categories are broken into subcategories. For instance, by searching a particular physician's "Practice Info" tab, users can glean information regarding the doctor's specialty, office locations, insurances accepted, and hospital privileges. Often equally important to healthcare consumers is information regarding legal actions taken against the physician. Under this category, the site lists judgments and arbitration awards, settlements, and malpractice history, among other pieces of information. Whether searching for a healthcare provider for oneself, or one's children, or even one's elderly parents, it is important to know the doctor's litigation history. A single incident in his or her malpractice history could be a single event in an otherwise unblemished career. A long list of of offenses might signal a physician you would prefer to avoid. In either scenario, the insight gained from the DOH site provides a basis for making an informed decision. And while, even if the site is terminated with the new budget, such information would still be available elsewhere, it would not necessarily all be gathered in one place, nor would it necessarily have the Department of Health seal.

The proposed shuttering of the site has spawned harsh criticism from lawmakers and advocacy groups. As quoted in James Mulder's post on syracuse.com (link below), State Assemblyman Richard Gottfried, the chair of the Assembly's Health Committee stated "[I]t concerns me that we would shut down the only site with the official stamp of the health department. As we move towards more transparency and public access to healthcare information, this proposal takes us in the opposite direction."

The doctor profile costs the state approximately 1.2 million dollars per year. Governor Cuomo's proposed budget is 142 billion dollars.

More information on this proposal can be found here:

Cuomo wants to pull plug on free website that reveals malpractice info about docs, syracuse.com, James T. Mulder, January 30, 2015

January 29, 2015

Fourth Department Rejects Plaintiff's Appeal of Labor Law Summary Judgment Decision

Late last year, the Appellate Division, Fourth Department affirmed an order by the Supreme Court, Erie County granting summary judgment for the defendants in a Labor Law 240 claim. Plaintiffs had contended that the Supreme Court incorrectly granted the motion for dismissal by the defendants.

stucco.jpgThe underlying complaint involved an accident at a college dorm. As the plaintiff was removing drywall from a cart, the drywall in the cart shifted, injuring the plaintiff. At the same time, the cart itself fell and hit the plaintiff. Due to the collision, he fell, damaging his shoulder.

Labor Law 240, commonly known as the Scaffolding Act, mandates that employers must provide safety devices when employees are working at an elevation. Inherent in the law itself is a height requirement. The law is meant to protect workers when working with scaffolding, hoists, ladders, and other such devices. Unfortunately for the plaintiff, it is not a general construction safety law. As the Court notes in its decision, at the time of the accident, the plaintiff was not working at an elevated height. Nor was the cart being lifted to a height above the ground. Because the plaintiff was standing on solid ground at the time of the accident, the devices enumerated in Labor Law 240 would have been both inapplicable and impractical to implement. As a result, the Court concluded that the injuries sustained by the plaintiff "were not the direct consequence of a failure to provide as adequate device of the sort enumerated in Labor Law section 240(1)."

The Fourth Department also rejected plaintiff's claim as to Labor Law section 241. It determined that the plaintiff did not "demonstrate a violation of a rule or regulation ...which gives a specific, positive command, and is applicable to the facts of this case." The Appellate Division also agreed with the Supreme Court that the section of the New York Code dealing with hoisting equipment was inapplicable given the facts set forth in the case.

The Scaffold Act is a strict liability statute. This means that if the defendant is found to be in violation of the statute, contributory negligence on the part of the plaintiff is not taken into account. First, though, the plaintiff must show that the defendant was, in fact, in violation of the Act. Here, the plaintiff failed to do so. When the plaintiff fails to meet this initial burden, as was the case here, the Court will grant summary judgment to the defendant.

If you or someone you love has been injured on a construction site due to the negligence of an employer, contact the New York Labor Law attorneys at Gallivan & Gallivan today to discuss your potential claim.

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.