New York is in a minority of states in America that has a wrongful death statute that does not allow the decedent’s family to be compensated for their emotional grief over their loss. So when a family recently came to see me about the completely unexpected loss of their son who was in his 20’s they were shocked to learn that the law prohibited them from recovering for their “pain and suffering” - only the decedent’s pain and suffering is recoverable. New York law does allow for the awarding of interest from the date of death, and the Court of Appeals recently expanded the amount of interest recoverable when it decided that interest from the date of death to the date of verdict should be added to the recovery for future wrongful death damages in Toledo v. Christo, 2012 WL 42906 (Jan. 10, 2012).
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Personal Injury Attorneys - Manhattan, Brooklyn, Queens, Long Island and the Bronx
If I had a dollar for every time a defendant argued in a summary judgment motion that it was not negligent because the condition that caused my clients accident was open and obvious . With words that every defense counsel (and Judge) should never overlook, the Appellate Division, First Department opened a recent opinion with the sentence: In this personal injury action, we reiterate the well established principle that a finding of open and obvious as to a hazardous condition is never fatal to a plaintiffs negligence claim. It is relevant only to plaintiffs comparative fault. Saretsky v. 85 Kenmare Realty Corp., 2011 WL 1796367 (May 12, 2011). Even though this is not new law, you would be surprised how many times cases are dismissed solely because the condition is open and obvious. What is often overlooked is that although there is no duty to warn where a dangerous condition is open and o
With National Dog Bite Prevention Week upcoming on May 15-21, the Insurance Information Institute (I.I.I.) has released a statement concerning the costs that result from dog bites based upon an analysis of homeowners insurance data. I.I.I. statistics show that from 2009 to 2010, the average cost of dog bite claims rose from $24,840 to $26,166, up 5.3 percent, although the number of claims dropped 4.9 percent from 2009 to 2010 ($16,586 vs. $15,770). The decline in the number of claims was almost exactly offset by an increase in the average cost. Dog bites accounted for more than one-third of all homeowners insurance liability claims paid out in 2010, costing nearly $413 million, according to I.I.I. A December 2010 report from the Tagged with: Personal Injury Dog Bite Personal Injury Lawyer Accident Attorney
Court of Appeals Broadens Ability of Persons To Recover for Injuries Caused by Negligently Operated Emergency Vehicles
A bit of a chill swept through the plaintiffs bar in 1994 when the Court of Appeals, New Yorks highest court, held that persons injured in motor vehicle accidents couldnot recover damages for injuries causedbymunicipal motor vehicles responding to an emergency responsible for the damages unless it could be proven that the driver a showing of reckless disregard for the safety of others, a much higher standard than the usual negligence. The court's interpretation in Saarinen v. Kerr, 84 N.Y.2d 494 ofsection 1104 of the Vehicle and Traffic Law ("VTL") caused attorneys to give great pause to taking on such cases. The courts dismissed many lawsuits that were brought where the conduct complained of seemed egregious. But some relief came last month in
Slip and fall cases can be notoriously difficult cases in which to prevail, especially when the location of accident is on a public area, such as a sidewalk or a parking lot. A key requirement is often the existence of prior written notice to the municipal property owner. But recently the Court of Appeals in San Marco v. Village/Town Of Mount Kisco, 2010 WL 5104993, 2010 N.Y. Slip Op. 09197 (December 16, 2010), held that since the black ice hazard at issue may have been created by the municipality's negligent snow removal efforts, and, if so, the municipality may have known of the hazard, the defendants motion for summary judgment was properly denied.
The plaintiff alleged that she
New York City Not Liable to Bystanders Shot By Police During Daylight Exchange of Gunfire on Public Street
In the Court ofAppeals decision inJohnson v. City of New York, 2010 WL 4720753 (November 23, 2010), five police officers got into a shootout with a robbery substance at 126th Street and Lenox Avenue in Manhattan. Plaintiff Tammy Johnson was playing with her 18-month-old daughter and socializing with neighbors on 126th Street near her residence when she heard gunshots, and she and her daughter took cover by lying on the ground behind an SUV. An errant bullet struck Johnsons elbow, and she commenced a negligence action against the City on behalf of herself and her daughter. A divided Court of Appeals affirmed the Appellate Divisions dismissal of the suit. Johnson opposed the City's motion and cross moved for summary judgment on liability, claiming that the officers violated Police Procedure No. 203.12, entitled Deadly Physical Force, which sets forth the guidelines for the use of firearms. The relevant gui
According to the latest News and Numbers from the Agency for Healthcare Research and Quality (AHRQ) , on average 866 people had to go to the emergency department daily and 26 people were admitted to the hospital daily for treatment of dog bites in 2008. That is an 86% increase in 16 years. The 2008 numbers are broken down into categories such as the age of the victim, the treatment necessary, and the hospital cost of treating dog bites. Seniors and young children were most likely to be hospitalized for a dog bite. For 65-84 year olds, there were 4.5 hospital stays per 100,000 people, for people age 85 and older, there were 4.2 stays per 100,000 and for children under 5 there were 4 stays per 100,000. Compared with urban residents, people in rural areas m
Football helmet safety standards are currently set by the National Operating Committee on Standards for Athletic Equipment (NOCSAE), a nonprofit corporation. The testing method used today is essentially the same as was established in the 1970s. The original goal was to prevent sudden death, skull fractures and brain bleeding in football, a goal that has been achieved. But the hot topic today in football is concussions, an injury todays football helmets cannot eliminate. The NFL acknowledged that the lack of a perfect helmet contributed to its decision to use big fines and the threat of suspensions to cut down on dangerous hits.Earlier this month Inez Tenenbaum, the head of the Consumer Product Safety Commission (CPSC) said at a Senate Commerce subcommittee hearing that her agency is working to impr
Trees, snow, lights, candles, trimmings, fires and paper are all signs of the season. They are also potential hazards. With safety in mind, the U.S. Consumer Product Safety Commission has posted on its website a pamphlet with highly useful information about enjoying these seasonal activities. The pamphlet includes some General Rules for Holiday Safety, as follows: Keep matches, lighters, and candles out of the reach of children. Avoid smoking near flammable decorations. Make an emergency plan to use if a fire breaks out anywhere in the home. See that each family member knows what to do. PRACTICE THE PLAN! Avoid wearing loose flowing clothesparticularly long, open sleevesnear open flames - such as those of a fireplace, stove, or candlelit table. Never burn candles near evergreens. Burning evergreens in the fireplace can also be hazardous. When dry, greens burn like tinder. Flames can flare out of control, and send sparks flying into
Weight of Falling Object, Not Just Height Differential, Can Implicate Absolute Liability Under Labor Law
The 39-foot, 1,300-pound rail fell only 12-16 inches onto plaintiffs right leg. It occurred when the plaintiff and his coworkers were using rail hooks to move the rail on top of another rail at the Steinway subway station in Queens. Upon the callman's signal, the plaintiff's coworkers began lifting the rail off the ground, but the plaintiff's hooks were not in place and he was not ready to begin lifting. This allegedly caused the team to lose control of the rail and resulted in the rail falling. Under this scenario, there is an issue of fact whether Labor Law 240(1) applies, holds the Second Department in Gutman v. City of New York, 2010 WL 4678914 (November 16, 2010).
The defendants contended that the 12-16 inch height differential was insufficient to implicate the Tagged with: Personal Injury Construction Accidents Construction Accident Labor Law Personal Injury Lawyer