New York Injury Lawyers Blog

In August, a Queens jury awarded damages in excess of 20 million dollars to a woman struck by an MTA bus in Long Island City. The plaintiff, a housekeeper, was awarded summary judgment after a surveillance video established that the pedestrian had the right of way. The bus did not yield and struck the plaintiff. Among her resulting injuries were multiple fractures of her dominant arm, facial abrasions and contusions, and subsequent amputations of the right (dominant) arm above the elbow and right leg below the knee. The plaintiff required twenty subsequent surgeries and seven months of rehabilitation.

The plaintiff claimed negligence on the part of the bus driver, and vicarious liability on the parts of the MTA, New York City Transit Authority, and MTA Bus Company. "Vicarious liability" allows for an employer to be held liable for the actions of his or her employees in certain situations. Generally, the employee must be performing the standard operations of his or her job description at the time the offense occurs for the employer to be held liable. In the case at hand, the plaintiff asserted vicarious liability because the driver negligently performed an everyday aspect of his job. The MTA employs him to drive the bus with reasonable care. and in this instance, he performed this duty negligently, so his employers could be found responsible for his negligence.

The breakdown of damages is as follows:

• $483,907.00: Past medical expenses

• $4,832,142.00: Future medical expenses

• $4,000,000.00: Past pain and suffering

• $11,000,000.00: Future pain and suffering

The defense has appealed both the summary judgment finding and the amount of the damages. The plaintiff has also moved to increase the award for past medical expenses. The law firm, Lipsig, Shapey, Manus & Moverman, PC, represented the plaintiff.

A Third Department Appellate Court recently ruled that an employee who fell from a ladder did, in fact, come under the protection of Labor Law 240, commonly known as the Scaffold Act. The plaintiff was installing a cable line at a subscriber's house at the time. He had finished the installation, and proceeded to check on a filter on cable wires outside the house. As the plaintiff was descending the ladder, it began to slide sideways along the hard wires that it was attached to. The plaintiff jumped off the ladder and was injured when he landed on the ground.

Under Labor Law 240, workers are protected while, among other things, making alterations to a building or structure. The Supreme Court originally entered summary judgment for the defendant, finding that the plaintiff's work at the time of the accident did not fall under the meaning of the word "alteration" as defined by the statute. Courts generally construe the Scaffold Act very liberally in order to afford ample protection to workers injured while working at an elevated height. This makes the original finding by the Supreme Court somewhat surprising, and the reversal by the Appellate Division less so. The Appellate Court found that replacing the filter was part of the work of alteration of the house, as the work ordered was not complete until the filter had been checked and replaced. The court states: "[A]s it is undisputed that the cause of the accident was the ladder's failure to provide the required protection, he (plaintiff) is entitled to partial summary judgment as to liability under Labor Law (section) 240."

As this blog has previously discussed, the Scaffold Act is a strict liability statute. Negligence on the part of the injured party does not mitigate the employer's responsibility to protect worker's from harm when working at an elevation. It is incumbent upon the employer to ensure that all necessary safety precautions are met to avoid accidents in these situations, because in almost all cases the court will find for the plaintiff if an injury does occur.

The Supreme Court Appellate Division (Second Department) recently rejected the defendant's arguments for summary judgment in Bloomfield v. Jericho Union Free School District a Long Island premises liability negligence case. The court ruled that the defendant school district did not meet its prima facie burden of proof for summary judgment.

The facts of the case are straight-forward. A young female student climbed atop an outside mat during gym class. While on the mat, the student's foot became caught in a tear in the mat, causing her to fall to the ground. The gym teacher, a substitute, was not near the girl when the fall occurred.

The defendant school district moved for summary judgment to dismiss the cause of action for premises liability (negligence). In such a motion, the burden of proof rests with the defendant to prove that it (the defendant) did not create the hazardous condition and was unaware of the condition's existence. If the condition is "open and obvious," a defendant has no duty to warn of the condition.

The Second Department ruled that the school district failed to establish that it did not have notice of the tear in the mat. The district also failed to establish that the tear was open and obvious. Because both of these issues present questions of fact, the court ruled that the matter could not be summarily dismissed.

Additionally, the court found that the defendant failed to establish that no questions of fact exist regarding the negligent supervision cause of action. The suit will now proceed to trial.

Bloomfield v. Jericho Union Free School District, 80 A.D.3d 637 (2d Dept. 2011).

The Supreme Court of New York, Third Department (appellate court), recently upheld a summary judgment decision for the plaintiff, Joseph Miranda III, in a construction accident lawsuit. Miranda sustained a traumatic brain injury in a fall of approximately 30 feet at an Albany construction site.

Commonly referred to as "The Scaffold Act," Labor Law section 240 governs construction site fall accidents. Section 240 imposes strict liability on contractors. owners, and their agents; should the defendant be found in violation of the statute, no contributory negligence on the part of the plaintiff can mitigate the defendant's responsibility. The statute dictates compliant procedure to ensure the safety of workers. It clearly defines acceptable safety devices to be used when working in an elevation-risk setting as: "scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes." When the appropriate safety devices are not present at a construction site and a worker suffers a fall, courts will generally find for the plaintiff regardless of other circumstances.

In lieu of any of the above listed safety measures, the defendant in this case utilized a "safety monitoring system," whereby a designated worker is in place to warn other workers of there proximity to the edge. The court found that because a safety monitor offers no tangible physical support, the defendant violated Labor Law 240. On this issue of the suit, because there was no contested issue of fact, the court upheld partial summary judgment for the plaintiff. Based on Section 240, the court found that as a matter of law, the plaintiff necessarily prevailed on this issue of liability.

Other issues of fact existed in this case. One main lesson is clear: contractors and construction entities have a duty to protect the safety of their workers. This duty is guaranteed under the law, and courts have and will continue to uphold this guarantee. Joseph Miranda III has been left with a lifelong handicap as a result of negligence. With the court's help, at the very least he and his family have the peace of mind of knowing that the company has had to take responsibility for their negligence.

Continue reading "Summary Judgment In Favor Of Plaintiff Affirmed in New York Labor Law Construction Accident" »

A New York Appellate Court recently reversed a trial level decision granting summary judgment in favor of the defendant in the 2009 case of Esther Jacobs v. Hector D Rolen. Plaintiff, who was involved in a car accident in New York, currently experiences limited range of motion in her lumbar spine, but full range of motion everywhere else. Defendant's expert, a radiologist, argued that the reduced range of motion experienced by the plaintiff was due to degenerative disc disease rather than causally related to the accident. Defendant also submitted an expert affidavit from an orthopedic surgeon who opined that although the plaintiff still experenced a reduction in range of motion 2 1/2 years after her automobile accident, these injuries were not "serious" as a matter of law. According to Insurance Law Section 5102(d), "'Serious injury" is defined as a personal injury which results in, among other things, "permanent consequential limitation of use of a body organ or member" and/or "significant limitation of use of a body function or system." In the lower court, a Bronx County Supreme Court Justice ruled that the defendant had met its burden of proof for summary judgment and granted the motion.

On appeal, the First Department held that plaintiff successfully raised issues of fact as to whether the injuries sustained constituted a "serious injury." Plaintiff's expert, her treating physician, contended that plaintff's injuries were, in fact, causally related to the accident. He supported his position by relying on "objective, quantitative tests" that showed significant range of motion limitations directly after the accident, as well as three years later. Plaintiff was also able to sufficiently explain a gap in treatment by stating that she continued her physical therapy until her no-fault benefits ceased, at which point she could no longer afford to pay for her treatment.

This is a familiar fact pattern for attorneys that handle car accident cases in New York. This is commonly referred to as a "threshold case", where it is questionable whether the injuries sustained will constitute a "serious injury" under the Insurance Law. Appellate decisions in this area of law are very fact specific and as illustrated here, it is important for plaintiffs to submit an affidavit from a physician whose opinions are based on "objective, quantitative tests" such as a Electromyography (EMG).

Jacobs v. Rolen, 76 AD3d 905 (NY 2010)

The Appellate Division, First Department of New York State in Dicturel v. Dukureh held that when plaintiff's vehicle is struck in the rear by defendant's vehicle, the front vehicle is entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation for the collision. In this matter, defendant claimed that plaintiff stopped short. However, this did not explain defendant's failure to maintain a safe distance from plaintiff's vehicle, and therefore was not enough to rebut the presumption that no negligence on plaintiff's part contributed to the motor vehicle accident.

Dicturel v Dukureh, 71 AD3d 558 (1st Dept. 2010).