Archive for the ‘Personal Injury’ Category

TRIP & FALL CASES

“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.

HALF OF SUPER LONG DELAYED FLIGHTS ARE IN NEW YORK AIRPORTS : JFK, LAGUARDIA, NEWARK

THE NECESSARY EXPERTISE OF THE PERSONAL INJURY LAWYER

“Ignorance is no excuse”!

How often have we heard that expression. And nowhere is that expression more appropriate, and often times more painful, than when applied to cases that require, as a condition to beginning a lawsuit, the proper filing of a “Notice of Claim”. If, for almost any reason whatsoever, you do not file a Notice of Claim upon the proper governmental or quasi-governmental agency within the required time (most often 90 days within New York City), your chances of getting a court to grant you permission to file a “Late Notice of Claim” ranges between slim to none !

This is not to say that permission to file a “Late Notice of Claim” is never granted. You must show the court “good cause.” “But I didn’t know about the rules” is most definitely NOT among the “good causes”. (As a long time practicing attorney, there are few things more frustrating than receiving a call from a potential client, with what would have been a very viable
case, only to have to turn the client away because he or she did not call in time to file a timely Notice of Claim).

When might a Late Notice of Claim be granted?

If the accident placed you in a hospital, in a coma, which lasted beyond the required period, a court may well be sympathetic to a circumstance as extreme as that. Courts are also sympathetic to “infants” (individuals under the age of 18 years in New York). A court will be reluctant to have a child be deprived of its day in court because of the failings of a parent. What may well happen is that the court will allow the fling of a “Late Notice of Claim” on behalf of the child, but if the adult had a valid case along with the child, the adult will be denied that same right. The basis for the court granting any request to file a “Late Notice of Claim” is determining whether or not the municipality or governmental agency will be “prejudiced” by granting the permission. The usual test to determine whether prejudice exists is to decide whether or not the entity or agency to be sued will still be able to carry on a thorough and complete investigation even though they receive the Notice of Claim in an untimely manner. For that reason, one of the issues the court will examine is whether or not the entity being sued had all of the information it needed, from other sources, to carry on a complete investigation, even though they did not have the Notice of Claim

If ever an experienced lawyer MUST BE consulted, it is in all instances where a Notice of Claim has to, or had to, be filed. If you failed to file a Notice of Claim within the required period, then the experience of the lawyer you choose to consult becomes all the more important. At Orlow, Orlow, & Orlow we can educate you on the proper way to file all your paperwork. We will work hard to defend your rights.

THE  “LATE”  NOTICE OF CLAIM

While this subject was already touched upon in our (now archived) blog post of November 20, 2009, the significant number of calls received which include expressions of fear that a belatedly recognized Notice of Claim filing requirement may have been missed, prompts this additional posting.

The major technical standard that courts will evaluate in determining whether to grant a “motion to file a late notice of claim” is, as previously noted, whether the municipality or the quasi-municipal entity will be prejudiced by the court granting the motion.   (As to what constitutes “prejudice,” refer back to the 11/20/09 posting).   Lack of prejudice alone is, of course, not enough,  and having been ignorant of the requirement to file the Notice of Claim will carry virtually no weight with the court.

We presented before conditions of infancy, and physical or mental incapacity (with accompanying documentation),  as grounds for court leniency.

  To these we can add death, where statutory law will operate to grant time for probate procedures to take place.

There may be instances where the court will find that a Notice of Claim was actually filed but, through error, it was filed utilizing the  incorrect name of the public agency.  This is NOT the same as serving the wrong agency (and experienced attorneys will fully recognize that extreme caution must be used in this regard).

If an injured party can show that the public agency, or its insurance company representative, engaged the injured party in settlement negotiations and, in a reasonable reliance on those negotiations, a Notice of Claim was not filed,  the courts have been known to be lenient.

It has also happened that courts will exercise some leniency where prejudice to the public entity does not exist, since an investigation even within the ninety day period would have been futile–as where the injury, it is alleged, was caused by a snow and/or ice condition.

To  anyone who was injured, and believes they have lost the opportunity to receive compensation for the effects of that injury because they missed the deadline for filing a Notice of Claim, do NOT make that assumption! Consult an experienced Personal Injury attorney who may well be  in  a  position to “revive” a case you may  have decided was moribund. The impact on your life, financial and otherwise, could be very significant!

A RECENT CASE

In a recent case, the Plaintiff managed to jump out of the way of a fire department vehicle which struck a person standing next to the Plaintiff. Thinking that she was not seriously injured, the Plaintiff did not pursue litigation.

The seemingly minor injury eventually turned into a serious injury which required knee surgery. The Plaintiff indicated that she had been stymied in an attempt to obtain information from the Police Department because she was not directly hit by the offending vehicle, and she failed to report any injury at the time of the accident. This set of circumstances led to the late filing of the Notice of Claim.

At a hearing regarding the motion to file the late Notice of Claim, the court noted the testimony of the individual that was hit by the vehicle supporting the Plaintiff’s contention that she was present at the scene and time of the accident. The Court also noted that the municipality was well aware of all the relevant facts surrounding the accident because of the police presence at the scene and because it was the agents of the municipality which performed the acts of alleged negligence complained of by the Plaintiff.

Finding the reasons for the Plaintiff’s delay in filing were reasonable, and that no prejudice inured to the municipality, the Court allowed the late Notice of Claim.

Are Strip Searches Allowed in New York Schools?

Increasing violence and other illegal activity occurring in our schools has seen the proliferation of “ZERO TOLERANCE” policies in many New York schools and in entire school districts around our nation. These policies, of necessity, very often involve the search of a student by New York school officials who seek to find out if the prohibited item, whether a weapon or an illegal drug, is in the student’s possession.

The question arises as to when such a search is permissible and, even more seriously, how intrusive may that search become. In June, 2009, the United States Supreme Court decided a case involving a 13 year old school girl (Susan). Another student had accused Susan of giving her drugs. The suspicion was that Susan had brought prescription strength ibuprofen to school. School officials (two females) ordered Susan to strip to her underwear, and then pull her upper and lower undergarments away from her body to see if the suspected drug was on Susan’s person. The judge that wrote the opinion for the court called this search an “…embarrassing, frightening and humiliating search…..” The decision of the Court did not give school officials a clear cut guideline to determine if a strip search is permissible. It rather set forth some guidelines that may well continue to make it very difficult for school officials in the future to decide whether or not a strip search would run afoul of the law. The guidelines the Court seemed to establish as factors:
–the extent of the danger of the contraband in question (for example: ibuprofen vs. heroin);
–how well founded is the suspicion that the contraband is hidden in an intimate place.

As Justice Souter wrote in deciding that this particular search was Constitutionally ILLEGAL:: “The content of the suspicion failed to match the degree of the intrusion” especially in light of the “nature and limited threat of the specific drugs.”Some school districts, such as the New York City Department of Education, simplify matters and ban such strip searches under any and all circumstances. Do keep in mind that as far as searches in general (not just strip searches) are concerned, the Constitutional requirements to allow a search by school officials (“a moderate chance of finding evidence of wrongdoing”) are LESS demanding than those that must be followed by the police (“Probable Cause”). Even an attempt to simplify this area of law, as we tried to do here, indicates the potential complexity involved when dealing with searches of all kinds. The services of a well seasoned New York City attorney, knowledgeable through experience in this difficult area of law, at as early a stage as possible, is invaluable in protecting your rights.

Very few venues in our society can top the sports arena as sites of accidents resulting often in serious injuries.

The subject of the injury may be either a participant in the sport, or an observer of a sporting event :  The race car driver, the wide receiver, the baseball player sliding into third base, going for the lay up;  or being hit by a foul ball in the bleachers, injured by an out of control race car, slammed by a wild hockey puck into the stands.    More disturbing, the little leaguer injured in any of a wide variety of sports engaged in by youngsters, and supervised by well meaning volunteer adults.  Add to this the myriad sports engaged in by school teams at all levels of age and proficiency, and what emerges is a plethora of sources for voluminous potential litigation.  Just imagine, a lawsuit for every injury incurred in the sporting arena !

Enter the doctrine of “Assumption of Risk”!

What this doctrine essentially means is that a person may not recover for any injury which that person sustains, when that person voluntarily exposes him or herself to a known dangerous activity, event or possible consequence of such activity or event.   Being tackled, flying pucks, speeding baseballs, outfield collisions, race car crashes–all known and anticipated possibilities to anyone participating in, or watching the event..  Injured by one of these or literally scores of other “every day” sporting  mishaps,  and you want to sue–“fuggedaboudit”!!   “Assumption of Risk” – you knew, or darn well should have known, about the risks before you started.   The courts will not be sympathetic.
Of course, the doctrine of “Assumption of Risk” does not, by any means, eliminate each and every injury incurred during the course of a sporting event from being litigated.  Especially in the case of younger athletes and school age children, the courts will look to factors that may well overshadow the “Assumption of Risk” doctrine.
The child injured when sliding into third base?   Was the coaching “negligent”?  Was the child properly taught how to slide,  minimizing potential  injury to him/herself or the opposing team’s player?  Did all the equipment used meet the required safety standards?  Was the base movable and detachable?  And of course, these issues can, and are, raised by experienced attorneys, in every situation where a child in particular, but adults as well, are seriously injured in a sports accident.  While the doctrine of “Assumption of Risk” looms very large indeed, in the field of sports injuries, a close examination of legitimate additional reasons for the injury having occurred should be pursued in all such potential cases. If you feel that this includes you please contact one of our experienced New York City Personal Injury Attorneys to assess your situation.

SEXUAL  ABUSE: PEDOPHILE  PEDIATRICIANS

As with priests in the Catholic Church, physicians who become aware of these gross violations of professional conduct by their colleagues invariably seek the removal of that colleague from their practice, and condone the fact that those pedophiles simply relocate to another practice.