New York Personal Injury Law Blog

A concussion is a traumatic brain injury (TBI) resulting from a blow or bump on the head. Athletes playing contact sports such as football or hockey can, of course, suffer concussions in the course of a game, but many people may not realize that falls and car accidents are the most common causes of these types of injuries. Likewise, many may not realize just how long it can take to fully recover from a concussion.

Post-Concussion Syndrome

Post-concussion syndrome is a complex disorder where a number of concussion symptoms - such as headaches, light sensitivity, or short-term memory loss - continue for weeks and sometimes months after the injury that initially caused the concussion.

Some common symptoms of post-concussion syndrome are:

• Fatigue
• Dizziness
• Insomnia
• Headaches
• Loss of concentration
• Loss of memory
• Irritability
• Sensitivity to light and noise
• Anxiety

Plaintiff brought a medical malpractice action against the doctor for "claimed malpractice in treatment she received for chronic knee pain that ended in partial paralysis of one leg following a spinal procedure to relieve her pain". [This information does not appear in the text of the decision but appears in an article in the NYLJ, 3/5/12, 1:3, based on the briefs in the case.]

During the trial defendant's attorney made remarks that the Appellate Division, Second Department, deemed improper and reversed the Supreme Court's denial of the plaintiff's motion to set aside the jury's verdict on the issue of liability.

Among other things, the appeals court held: "A new trial is warranted in light of the inappropriate cross-examination of the plaintiff's witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants. The defendants' counsel repeatedly denigrated the medical background of the injured plaintiff's treating physician. Counsel also made inflammatory remarks, including commenting during summation, that the plaintiff's treating physician and the plaintiff were 'working the system.' Moreover, counsel remarked that the injured plaintiff's treating physician testified 'at an enormous amount of Workers [Compensation] proceedings' and was the 'go to' doctor in Suffolk County for patients who wished to stop working. By contrast, counsel vouched for the credibility of the defendants' expert witness by thanking 'God there are people like [him] who are the stop gap.'"

Maraviglia v. Lokshina, NYLJ, 3/5/12, 24:5

The Court of Appeals has ruled that a person injured when he fell from a ladder while cleaning a product manufactured by a third party was not protected by Labor Law §240(1).

Plaintiff maintains that he was injured while cleaning a wall module because the ladder given to him "failed to provide proper protection. The module had to be cleaned before it was shipped by his employer to another location.

Labor Law §240(1) provides in relevant part that:

"All contractors and owners and their agents.... in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed." (Emphasis added)

Plaintiff hinged his claims on the grounds that he was "cleaning" a wall module which is a "structure".

The Court of Appeals rejected his arguments focusing instead on whether he was "employed" in the specific acts set forth in the statute. The Court found his argument "too simple and would lead to an expansion of section 240 (1) liability that our cases do not support and that we are convinced the Legislature never intended." *** "We have never ... gone as far as plaintiff here asks us to go - to expend the statute to reach a factory employee engaged in cleaning a manufactured product."

Dahar v. Holland Ladder & Manufacturing Co., NYLJ, 2/22/2012, 25:3

Plaintiff's infant daughter allegedly sustained personal injuries as a result of a ear piercings by the defendants. Plaintiff claims that because of defendants' negligent performance of the piercing, her daughter "sustained scar tissue on her left ear, an improperly placed earing hole in the right ear, external ear pain and the necessity of surgery for ear correction.

The Supreme Court denied the defendants' motion to summary judgment dismissal of the proceeding.

Among the issues that were raised by defendants was that the plaintiff's claims were barred pursuant to the doctrine of waiver and release because plaintiff mother signed a Standard Release and Authorization form which released the defendants from liability.

As to that issue, the court held: " a review of the language of the Standard Release and Authorization form discloses that it is written in broad and sweeping terms, and thus, fails to met [sic] the stringent standard requiring, in unequivocal terms, that it was the parties' intention to insulate the defendants from liability for Nicolette's injuries caused by their own negligence.... Therefore, the plaintiffs' negligence claims are not barred by the purported exculpatory language contained in the Standard Release and Authorization and defendants fail to demonstrate their entitlement to summary judgment on the grounds of waiver and release".

The court further found that there were other issues of fact as to whether the defendants were negligent with respect to the piercings.

Cummins v. Zale Corporation and Piercing Pagoda, NYLJ, 2/9/12