“UNKNOWN CAUSE”

Countering the “Open and Obvious” and “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.

As a general rule, as we have stated previously, if there is a possibility of bringing a lawsuit against some party OTHER THAN one’s employer or co-worker (“THIRD PARTY ACTION”), for a injury sustained on the job, the recovery will almost always be greater than the worker’s compensation award that may be given, if both remedies are available. Without explaining the technicalities of liens that arise, we can summarize by saying that the injured party will usually have the luxury of keeping the greater of the two amounts. Often, there is no third party available to sue. Sometimes, there may not be Workers Compensation available to a worker, though he may think there should be. It can be a close call.

Example: A worker is on his way to a job site in his automobile and crashes with another vehicle. It is the other vehicle’s fault. The worker is very seriously injured. The other auto has only the minimum insurance coverage which is not nearly enough to fairly compensate the injured worker. Workers Compensation now becomes extremely important since the worker may be disabled for his entire life.

In New Jersey recently, it was decided that a worker, on a coffee break, WAS entitled to Workers Compensation.** The yardstick?: Was the activity of the worker at the time he was injured “within the course of his employment?”

In this case, even though the worker chose to drive five miles away from the work location for the coffee break, it was found that the diversion was caused by the worker having to wait for another person he was to meet, and the coffee break was a reasonable thing to do in the meantime. The result: the worker can get Workers Compensation for his severe injuries and will be covered for a lifetime disability. If it had been decided that the coffee break was NOT “within the course of his employment,” all the worker would have to look forward to was the small amount available under a limited automobile insurance policy…

Any time a “third party” may be involved in a work injury, it is absolutely essential that an experienced Personal Injury Attorney, in addition to a Workers Compensation Attorney, be consulted…A worker does himself a terrible injustice, and may subject himself to grievous financial damage, if he fails to heed this advice.

**Http://www.insurancejournal.com/news/east/2010/01/25/106840.htm

Workers Compensation assures employees that in the event they are injured “on the job,” then they will be fairly reimbursed for both their medical expenses and for their lost wages.   This is totally regardless of who, or even if anyone, was at fault for the injury.   Both the medical payments and any other money award to the worker goes according to a fixed schedule.   Special judges and boards decide if and how much to award.

Employers are responsible for carrying workers’ compensation insurance. A worker should realize that if an employer failed to carry workers’ compensation insurance for any reason, the workers will still be covered.  The worker should report the accident to the workers compensation authorities. They will see to it that the worker is covered and deal with the employer appropriately through back charging the employer and adding possible penalties or in utilizing a special fund to cover uninsured workers.

It is to your advantage to consult with an attorney that concentrates his practice in the area of workers compensation in order to be assured that you will get the maximum benefit out of a system that can be somewhat confusing for the average person.   The fee paid to a workers’ compensation attorney in New York will not come out of your pocket but will be awarded by the Workers’ Compensation Board.

In an effort to repair an elevator in a five story cooperative in Manhattan, a repairman lost his life on Wednesday, January 13, 2010. While the exact method of the repairman’s death is not yet determined, speculation is divided between a fall in the elevator shaft or electrocution. The repairman was there to deal with tenant complaints of elevator misalignment with the floor, and with “squeaking” sounds.

Having died in the course of his employment, the representatives of the deceased will look to Workers Compensation for their remedy.

Without explaining the intricacies of the New York Labor Law, whether the repairman’s estate will have a viable THIRD PARTY lawsuit against the owner of the building, in addition to the Workers compensation claim, may well rest on a judicial determination as to whether a “repair”, as opposed to “maintenance,” was involved in the work being performed by the repairman at the time of his death !! The availability of a THIRD PARTY action could make a significant difference in the eventual amount recovered.

The laws surrounding injuries sustained by workers in the construction trades and allied fields are very protective but also very complicated at times.

The difference to the injured party and that party’s dear ones can be very substantial since, as an almost inviolable rule, THIRD PARTY actions result in recoveries significantly greater than awards under Workers Compensation.

An attorney with considerable experience in handling THIRD PARTY LABOR LAW cases is essential to safeguard the vital financial interests of those grievously affected by a worker’s accident. If you or your family member have been injured contact Orlow, Orlow, & Orlow today.

On Monday, Novermber 16, city attorneys aired lengthy recordings to highlight how the events unfolded at Jesse’s Short Stop Inn on the afternoon and evening of Feb. 19, 2007. During two visits to the Northwest Side bar, Abbate consumed large quantities of alcohol and continuously harassed and physically abused the bartender, Karolina Obrycka, and patrons according to the attorneys and the charges filed against him by Police Superintendent Jody Weis. Tuesdays proceedings started with the airing of a 30 minutes video showing the officer showboating and harassing patrons of a Northwest Side bar before he turns on the bartender, beating and kicking her Abbate was already convicted in criminal court for the felony aggravated battery of Obrycka and now faces dismissal from the department before the Chicago Police Board.

He continuiously invoked his Fifth Amendment right against self-incrimination at least 75 times during questioning by city attorney Anna L. D’Ascenzo,

who repeatedly asked Abbate to identify himself on the recording. Obrycka took the stand and watched the video that shows her being punched, beaten, pushed and yanked by the hair by the 13-year officer. “I heard him say, ‘Nobody will tell me what to do,’ ” Obrycka said. “I believe the only thing I said…I said, ‘Stop.’ “Michael Malatesta, Abbate’s attorney, called the hearing a formality, considering that Abbate cannot serve as a police officer with a felony conviction. “There is no getting around it,” he said.

As one of a handful of law firms in New York City representing victims of police misconduct, Orlow, Orlow and Orlow, P.C. has extensive experience helping victims of:

* Police Brutality and Prison Guard Abuse

* False Arrest

* All other types of police misconduct.

Many complaints of police misconduct are ignored.

They are frequently brushed off as if the person must be lying or somehow deserves his or her fate by having been involved with the police in the first place. If you are a victim of police misconduct, it’s important to contact a lawyer immediately. You may only have ninety days to file an action against the police department.

Source: chicagotribune.com

Construction activity in New York City, as almost everywhere else in the nation, has experienced a drastic slowdown during this past year.  The reason is not difficult to fathom: the Recession, and the consequent constriction in financing by banks.

One piece of good news accompanies this fact: building sites reported THREE (3) fatalities in all of 2009.   That represents a downward spiral of 12 deaths in 2007 and 19 fatalities in 2008 !*

New York City Buildings Department – tougher enforcement caused decline in construction accident fatalities.

While the recession certainly had a major role in this situation, the officials in the New York City Buildings Department attribute tougher enforcement of rules as a contributing factor in the decline.It should be noted, however, that tougher enforcement was undoubtedly directly linked to the experience of two recent horrendous construction crane accidents.

In taking solace at the diminished number of fatalities at construction sites, the overall number of injuries at construction sites rose in 2009.  According to officials, this was mainly due to improved reporting of accidents.

It is vital to remember that construction site accidents virtually always involve THIRD PARTIES which may be responsible for recoveries, in addition  to WORKERS COMPENSATION recovery. Any construction  worker, involved in any accident at a construction site, should contact an experienced Personal Injury attorney immediately, so that his rights and interests can be fully protected.  A Worker’s Compensation attorney will also have to be contacted at some point.

*ClaimsJournal.com–Associated Press

The fatal construction accident, occurring August 24, 2009, comes after a series of prior incidents which took place during the ongoing renovation of the Throg’s Neck Bridge.  This includes a fire which shut down the vital transportation hub for almost an entire day in July and demonstrates a pattern of negligence in the planning and supervision of the efforts.

As Construction Accident Attorneys in New York City, we too often see accidents such as these caused by gross negligence.  Most New York Construction Accidents can be prevented by simply obeying the guidelines set in place.  Extreme precaution must be adhered to when working in such precarious locations as the massive Throg’s Neck Bridge.

When safety becomes haphazard, at best there is a traffic jam and at worst a family loses a loved one who is often the sole provider.  These construction accidents are preventable and are the reasons most New York City Personal Injury Attorneys so vehemently seek justice for those wronged by others neglience on a New York construction site.

While exposure to the HIV virus, and subsequent contraction of the Aids virus, is no longer, thankfully, a death sentence, it is nevertheless a frightening and life altering event that, without proper and constant lifelong medication could, eventually , lead to a premature death. Consequently, being exposed to the HIV virus, because of the negligence of someone else, may well be grounds for a lawsuit for “emotional distress”.

“Emotional Distress,” unlike a matter involving a purely physical injury, consists entirely of a psychological component.

While a fracture of the ankle cannot be easily faked, the objective determination that “emotional distress” truly exists is far harder to establish. The courts are well aware of this potential for fraud, and rules have been established that, while making it far harder to create a false cause of action, also, unfortunately, do result in many legitimate actions being denied.

To maintain a cause of action arising from a fear of contracting the aids virus, the person bringing the lawsuit (the Plaintiff) must either show:

1. He or she actually contracted the aids virus or, if he or she did not contract the virus, then, 2. That he or she ACTUALLY was exposed to the HIV virus. To show that the exposure to the virus was “ACTUAL” the Plaintiff must show that the way the virus was allegedly transmitted was recognized as a scientifically acceptable means of transmission (such as a hypodermic needle), AND that the source of the possible infection (the blood or other liquid or residue) was, IN FACT, infected with the HIV virus !! If you are, for example, stuck by a needle by accident in some medical office, and the needle is lost (perhaps because maintenance throws the needle out before it can be retrieved), you may well have NO CASE for “emotional distress” for the entire time you wait to find out if you are HIV positive≠unless you eventually DO contract aids. Why? Because you cannot show that the needle was contaminated with the HIV virus.

WARNING: While the rules regarding an action for “emotional distress”, especially in “Aids Phobia” cases, are very stringent, there are some exceptions that have been carved out by the courts. Never assume, in serious matters, that the option of a lawsuit does not exist. Be certain to consult with an experienced personal injury attorney who can guide you through the thicket of laws and court decisions in making the proper decision.

At Orlow, Orlow, & Orlow we have over 30 years experience in personal injury law. We will fight for your justice.