According to the plaintiff's testimony, submitted by the defendant in support of its motion, "all four corners of the mat, which had been on the premises 'for a very long time', were turned up, and the mat would frequently move out of its position when he would step on it, causing him to have to reposition it."
Defendant did not provide any evidence as to when the mat was last inspected prior to the accident, "as opposed to the last time the superintendant walked over it", thus, it failed to make a prima facie showing that it had no constructive knowledge of the alleged hazardous condition.
Baratta v. Edon Roc NY, LLC, NYLJ, 5/4/12, 32:6
]]>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:
Contact a Personal Injury Attorney
If you or someone you love has suffered a concussion or other traumatic brain injury, contact an experienced personal injury attorney. A knowledgeable personal injury lawyer can assess your case and help you get the fair and adequate compensation for medical bills, lost wages, and pain and suffering you deserve. For more information, contact an attorney today.
]]>The statistics surrounding commercial truck accidents are staggering:
A Personal Injury Attorney Can Help
If you or someone you love has been injured in an accident with a large commercial truck, contact an experienced personal injury attorney. A personal injury attorney can assess your case and help you get the compensation for medical bills, lost wages and pain and suffering you deserve. For more information, contact an attorney today.
]]>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
]]>In order for plaintiff to remove these panels he had to climb on top of one of the bundles so that he could attach "chokers" to the corners of each bundle to make sure they were secure and would not sway and stay apart from the other bundles when hoisted by a crane and placed on a sidewalk bridge above. Plaintiff's repeated requests for a ladder were denied by his employer. He stated that without a ladder there was no way to get out of the way. At the time of the accident, the tag lines being held by co-workers on the street below "got slack" and the bundles began to swing toward plaintiff as they were lifted by the crane. With no escape route, the bundle hit him and knocked him to the ground allegedly causing his injuries.
The Supreme Court denied the plaintiff's motion for partial summary judgment on his Labor Law §240(1) claim and dismissed his Labor Law §240(1) and §241(6) claims. The Appellate Division, Second Department, reversed.
Under Labor Law §240(1) the owners, general contractors and their agents have a nondelegable duty to provide safety devices necessary to protect workers from the risks inherent in elevated work sites. Here, the court held the failure to provide the plaintiff with a ladder "was a proximate cause of the accident" as the plaintiff "had no way to get off the bundles". In addition, the defendant construction company was independently liable under Labor Law §240(1) for failing to provide a secure method of hoisting the bundles. "The harm plaintiff suffered was the direct consequences of the application of the force of gravity to the bundle that was being hoisted." Further, the court held that there was no plausible view of the evidence that the plaintiff's own acts or omission were the proximate cause of the accident.
As to the plaintiff's claim under Labor Law §241(6), the court found, citing industrial code provisions, that there was sufficient evidence that the tag lines did not properly control the movement of the load as lifted and, therefore, it should be up to a jury to determine whether plaintiff can recover under this claim.
Naughton v. The City of New York, NYLJ, 3/1/12
]]>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
]]>According to an article in the New York Law Journal (NYLJ) accompanying the decision, it was stated that the rejection of a scientifically invalid standard defense in obstetrical medical malpractice cases "may be a national first".
In a memorandum decision rendered by the Appellate Division, Fourth Department, it was held that the Supreme Court did not abuse its discretion in precluding testimony that the injury caused to plaintiff's infant daughter during birth was the result of "the birthing process".
Here the infant sustained injuries during birth [Erb's Palsy, also known as brachial plexus injury] and plaintiff sued alleging that the injuries to the child were caused by excessive force used by the doctors during the delivery. The defendants sought to introduce testimony that it was the birthing process itself [the "maternal forces of labor" theory] and not any action by the doctors that caused the injury.
In discussing the application of Frye v. United States (293 F 1013 [involving the admissibility of expert testimony of generally accepted scientific principles]) the court noted that "we agree with the plaintiff that the defendants' theory that the claimed injuries to her daughter were sustained as a result of the birthing process was a novel theory subject to a Frye analysis, and that the defendants failed to rebut plaintiff's showing that their theory was not generally accepted within the relevant medical community."
Muhammad v. Fitzpatrick, Appellate Division, Fourth Dept., Decided 1/31/12
See, NYLJ, 2/8/12, 1:3, Court Finds Invalid Standard Defense in Obstetrical Malpractice Cases
]]>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
]]>Preventing motorcycle accidents is not as difficult as it sounds. If vehicle drivers began following these simple rules, the number of motorcycle accidents in the U.S. would likely drop substantially.
]]>By following these simple rules both the automobile and the motorcycle driver will be safer on the roads.
An Attorney Can Help
If you or someone you love has been injured in a motorcycle accident, contact an experienced personal injury attorney. A knowledgeable personal injury attorney can assess your case and help you get the compensation for your injuries you deserve. For more information, contact an attorney today.
]]>Plaintiff's subrogors were injured when the son of the defendant negligently operated his mother's motor vehicle which resulted in an accident causing serious physical injuries to the insured individuals. Plaintiff paid for the uninsured and no-fault benefits and commenced this action against the defendant owner and defendant driver.
A default judgment was entered against the driver-son for failure to appear or answer and against the owner-mother for failure to appear at trial. The defendant-mother then moved for vacatur of the default against her claiming she had a good defense because she was not driving the car at the time of the accident. The Civil Court granted her motion. The Appellate Term reversed.
The appellate court held that, in car accidents, the responsibility for harm resulting from the operation of a motor vehicle is placed upon the owner and that there is a rebuttable presumption that the operator of the vehicle had the owner's consent at the time of the accident. Since the defendant-owner failed to present evidence to rebut that presumption her mere assertion that she was not driving at the time of the accident did not present a meritorious defense to vacate the default against her.
Allstate Insurance as Subrogee v. Jackson, NYLJ, 2/1/12, 26:4
]]>While students who participate in school sports are generally required to sign consent forms in case of possible "injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation" the consent does not include those events that are unassumed, concealed or have unreasonably increased risks.
Here, the plaintiff was injured while playing lacrosse and the Supreme Court denied the defendant's motion for summary judgment dismissal. In affirming that decision, the Appellate Decision, Second Department, stated: "Although being struck with a passed ball is a known risk in the sport of lacrosse, the defendant failed to eliminate all triable issues of fact as to whether it unreasonably increased the risk of harm to the plaintiff by failing to provide him with head and face protection during preseason high school lacrosse practice."
Thus, in school accident cases, the school must establish that it was not responsible, as a matter of law, in contributing to the cause of the injuries in order to successfully obtain a dismissal of the proceeding prior to trial.
Charles v. Uniondale School District Board of Education, NYLJ, 1/30/12, 22:6
]]>There was a leak in her kitchen coming from the risers. The risers were covered with asbestos which had to be removed prior to fixing the leak. After the asbestos was removed, the plumber fixed the leak and then the holes and wall had to be plastered and painted.
Plaintiff had requested that the foyer and living room could be painted as well. While the repairs were done plaintiff was relocated to another apartment. She did, however, return to her apartment to move things for the painting. While packing books she turned around and her foot got stuck in the in the plastic sheeting on the floor and she fell sustaining her injuries.
The defendants include the asbestos removal company, the air testing company, the plumbing company, painting company with an office in the defendant managing agent's office and the owner of the building.
Defendants claim the plaintiff cannot establish what caused her to fall and that if she could establish that there was a dangerous condition, she could not prove notice of such condition. Each defendant claims that they were not directly responsible for the accident.
In denying summary judgment for any of the parties, the Supreme Court held:
"Here the defendants have established that there was neither actual nor constructive notice. Plaintiff testifies that she traversed the same path safely for twenty minutes before her fall, and there is no evidence of complaints regarding the plastic sheeting. However, defendants have failed to establish, as a matter of law, that they did not cause of [sic] create the alleged defect. Plaintiff has represented facts from which a jury may reasonably infer that defendants were negligent in failing to properly secure the plastic covering to the floor or wall, thereby allowing it to bunch up and create a tripping hazard."
As to the conflicting testimony of each of the defendants, the issue of credibility is for a jury to determine.
Stanton v. DBD Services, Inc., NYLJ, 1/17/12
]]>Decedent's son commenced a wrongful death action based on the ground of negligence for failure to utilize the AED. The defendant sought dismissal of the proceeding for failure to state a cause of action.
The Supreme Court denied the motion and the Appellate Division, Second Department, affirmed.
The "heart" of this case was whether the employees of the gym who were trained and certified in using the AED which the gym was required to have on location pursuant to General Business Law §627-a had a legal duty to use it.
The defendant argued that it had no affirmative duty to use the AED on the decedent after he collapsed and that it was immune from liability under the Good Samaritan Law.
The Appellate Division disagreed with the defendant finding that "the issue at bar was not whether Bally was negligent in the course of its use of the AED" but whether the General Business Law [GBL] §627-a gives rise to a statutory cause of action in negligence based upon the failure to use the device".
As clearly stated, "...as there is no dispute that General Business Law §627-a requires certain health club facilities to provide an AED on the premises, as well as a person trained to use such device, it is anomalous to conclude that there is no duty to use the device should the need arise. Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?"
Miglino v. Bally Total Fitness of Greater New York, NYLJ, 1/3/12, 18:1
]]>Authorities in both cities stepped up enforcement and increased efforts to get the word out about the dangers of distracted driving.
Distracted driving includes not only cell phone use and texting but the use of other media or radio sources in the vehicle, putting on makeup, eating, drinking or any other activity that takes attention away from driving as a primary purpose behind the wheel.
The National Highway Traffic Safety Administration (NHTSA) has concluded that strong laws and visible police presence works to lower the use of cell phones and texting while driving.
]]> Local programs received $200,000 in national funding and $100,000 from their respective state governments. Most people believe the money was well-spent as many types of distracted driving were influenced successfully:These efforts followed an announcement from the Governor's Highway Safety Association pushing for the remaining 41 states without highway cell phone bans to adopt the policies.
An Attorney Can Help
Despite the best efforts of lawmakers and police, distracted driving continues to cause serious accidents. If you or someone you love has been injured in an accident with a distracted driver, contact an experienced personal injury attorney. A knowledgeable personal injury lawyer can assess your case and help you get the compensation for medical bills, lost wages, and pain and suffering you deserve. For more information, contact an attorney today.
]]>A new study published in the Annals of Internal Medicine in July 2011 challenges the notion that breast screenings should be based on age. The study suggests that risk factors such as breast density, family history breast cancer, a woman's history of breast biopsy, and personal views about the risks and benefits of screens should be taken into consideration to develop a screening schedule tailored to each individual woman. The study found that it was not "cost effective" to conduct breast cancer screenings as regularly as current guidelines recommend - this takes into account the toll that "false positives" take on women.
]]> One "concern" of undergoing frequent breast exams is the possibility of receiving a "false positive" diagnosis of breast cancer. Misdiagnosis of breast cancer can lead to unnecessary treatments such as surgery, chemotherapy or radiation. In some cases, women may experience breast disfigurement from surgery or needlessly undergo mastectomies after being falsely diagnosed with breast cancer.According to the National Cancer Institute, approximately one in eight women will be diagnosed with breast cancer during their lifetime - about a 12 percent chance of being diagnosed. As such, women should not deviate from their current breast exam schedule without first talking to their doctors about the benefits and risks of doing so.
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