Open and Obvious Defense Clarified in a Case of Optical Confusion

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 client’s 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 plaintiff’s negligence claim. It is relevant only to plaintiffs comparative fault. Saretsky v. 85 Kenmare Realty CorpRead the rest

Two Cases This Month Where Doctors’ Failure to Timely and Properly Treat Immunizes Them From Suit

Theres much talk these days about the proposed $250,000.00 cap on recoveries for pain and suffering in medical malpractice cases. I’ve seen a television advertisement crowing how medical malpractice reform will enhance patient safety (without mentioning the proposed cap), when common sense fails to explain how reducing a doctors or hospitals potential liability will make them act with more care towards the patient. At the same time, the proponents of the cap show no interest in fixing one of the most unfair aspects of current law – the absence of an extension of the 2-1/2 year statute of limitations that … Read the rest

NYC Makes No Bones About It: Obey The 30 MPH Speed Limit or You’ll See a Skeleton

Throughout New York City and other places, drivers are becoming accustomed to seeing radar-equipped speed boards that tell them how fast they’re going, and flash when their speed exceeds the speed limit. This past week Mayor Michael R. Bloomberg and the NYC Department of Transportation (DOT) announced that some of the speed boards will now also show the words SLOW DOWN and the image of a healthy pedestrian turns into a skeleton on electronic signs when drivers exceed the city speed limit. As long as a driver obeys the city’s 30 mph speed limit, no skeleton will appear. The signs … Read the rest

Study Shows Cost of Average Dog Bite Claim Has Grown By 37 Percent from 2003 to 2010

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 on 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 … Read the rest

Buildings Department Announces New Citywide Safety Campaign To Encourage Construction Workers To Use Proper Fall Protection

Entitled Experience Is Not Enough, the new multi-lingual campaign is designed to emphasize that all workers must use proper fall protection, such as safety harnesses, guardrails, and netting, regardless of how long they have worked in the construction trades and how much experience they possess. A worker falling is the most common construction related accident in New York City, representing 42% of all accidents reported to the Department in 2010. Since 2008, 16 construction workers have lost their lives due to the lack of basic fall protection. In February, two ironworkers, ages 49 and 51, were killed when they fell … Read the rest

The New Move Over Law Gets Personal

No, I didn’t get a ticket for failing to obey the new Ambrose-Searles Move Over Act that requires drivers to exercise due care to avoid colliding with an authorized emergency vehicle which is parked, stopped or standing on the shoulder of a road or highway with its emergency lights activated. More specifically, on parkways, interstates, and other controlled access highways with multiple lanes, drivers are required to move from the lane immediately adjacent to the emergency vehicle, unless traffic or other hazards exist to prevent doing so safely. So there we were stopped on the shoulder of the New York … Read the rest