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, 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 (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,, 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.

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

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