ACT  OF  GOD: NATURAL DISASTERS

If, today, a tornado were to destroy your home, “who ya gonna sue?”  Hope that you had enough, and appropriate,  insurance  coverage?

Just recently a fierce winter  storm caused ice to fall onto, and break through, a glass atrium of a New York office building.  Several people were injured, though thankfully, only slightly.   In Washington, D.C., the impact of that same winter storm that wracked almost the entire East Coast, created winds gusting up to 60 mph that shook scaffolding, causing two workers to lose their footing and fall.  Though seriously injured, both survived.   “Act of God”?    Certainly.   End  of  story?  Not at all !

There are certainly certain natural events that occur that result in damage to individuals, and for which there will be no recourse, by way of a lawsuit.  God is not a viable litigant !

Before you jump to the conclusion, however, that any given event–any “Act of God”–even a hurricane, a  blizzard, a raging flood or a tsunami–may not lend themselves to seeking compensation from a source other than, or over and above, insurance, it would be wise to consult with an experienced Personal Injury Attorney.

Most common in the winter months are cases involving falls on ice and snow.  Without going into details in this area of law, which can be difficult, the experienced attorney will examine the existence of local ordinances regarding snow removal.  The attorney will also look at any acts by a property owner that aggravated what nature may have created, had there been no human interference.

With the examples of the glass atrium and the scaffold, we enter into areas of law that also lend themselves to imposing responsibility upon third parties.  In both instances, laws exist that will govern the imposition of liability on certain third  parties (building codes, labor law).  And even in addition to those grounds for a lawsuit, there are many instances where the concept of “foreseeability” is applicable which will subject certain third parties to liability for what otherwise seem to be an “Act of God”.

“Foreseeability”, the facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions (legal dictionary definition) will be dealt with in another posting.

FOOD  POISONING

Just this month  (March, 2010) a coalition of health and consumer groups  put out a study that estimated the annual health related cost of  “food borne illnesses”  to be $152 BILLION !

While lately there have been a rash of well publicized outbreaks of contamination of everything from meat to  lettuce to peanuts, the effect of food poisoning is an everyday occurrence, making the general public susceptible every time each of us enters any type of public eatery for a snack or a meal.  Health practice standards, set by a variety of government agencies, apply not only to the various type of foods as they are processed, manufactured and distributed, but apply as well to the handling of food in local restaurants and “take out” stores.   The disregard of these established standards is a leading cause leading to food poisoning.

According to the US Centers for Disease Control and Prevention, 76 million people get sick each year with food borne illnesses and, unfortunately, 5000 die.

For the practicing Personal Injury Attorney, it is crucial in attempting to bring a viable lawsuit, that once food poisoning was confirmed by competent medical examination, the source of the food poisoning can be firmly established.   The experienced Personal Injury attorney has a number of available methods to achieve this end.   The medical exam should reveal the cause of the poisoning–the organism involved.  With that in  hand, the attorney will then work backward to pinpoint the source.

The source may be a well advertised item that has recently been recalled.  It may be from the take-out food someone recently ordered and which, with some luck, may be still available to the victim making it easy to submit for evaluation.  In the case of a restaurant, knowledge of the organism involved would give us an idea as to how long the “incubation period” is for food poisoning to take effect for that particular organism.  Trace that back to the time the victim ate in a particular restaurant, and your suspect is before you.

Food poisoning can be extremely serious, and painful.  Too often individuals confuse signs of food poisoning with flu or other symptoms.

Below, for your help, is a list of common food poisoning symptoms.  If you ever suspect you, or a relative or friend, was a victim of food poisoning, try to do all you can to identify the source as soon as possible.

FOOD  POISONING  SYMPTOMS:

—onset of symptoms often sudden and abrupt

—watery and/or bloody diarrhea

—headache

—fever

—bloating and gas

AUTOMOBILE INJURIES: HOPEFUL SIGNS | POTENTIAL DANGER

A recent report by the Insurance Council of Texas indicated a steady seven year decline in Texas in the number of people injured or killed in automobile accidents. The decline is over 20%. The Texas Department of Transportation confirms a drop in five of the last six years. While we have not performed the research to confirm this point, scuttlebutt among the personal injury bar is that the number of automobile cases across the nation have diminished significantly over the past several years. This is reflected in caseloads involving auto accidents, and in the nature of cases appearing on court calendars. It is confirmed by the Insurance Institute for Highway Safety which indicated that Texas is following a nationwide trend. (“Claims Journal,“ Feb. 10, 2010)

Why is this the case? Simply because the safety features now available in cars assist the vehicle occupants to mitigate injuries when accidents do occur, and also assist a vehicle operator in avoiding an accident from occurring in the first place. Effective seat-belts, front and side airbags and head restraints fall into the mitigation of injury category. Electronic stability control, traction control, ABS brakes, and even forward collision and lane departure warnings fall into the accident avoidance category.

We remind the reader, however, that a major contributor to a potential upsurge in highway accidents lurks in mobile devices, whether handheld or otherwise, as numerous studies have indicated.

On this point, an insurance company recently settled a matter involving the death of two bicyclists in South Carolina for 5 million dollars (unusual in itself in that such a large amount of insurance was available). Why did the company settle on behalf of its inured rather than go to trial?: Their insured had pleaded guilty, criminally, to reckless driving after having been originally charged with “reckless homicide”. A basis for those charges: the driver of the vehicle was on a cell phone at the time of the crash. (Claims Journal, February 10, 2010)

If you have been injured by a driver that was on a handheld device in any manner contact our Manhattan Accident Attorneys office at Orlow Law today.

“ZONE OF DANGER”

We have seen that in “wrongful death” actions, the generally applicable rule in New York is that emotional trauma caused family members by the loss of a loved one is not a permissible basis for a “cause of action” in a lawsuit.

Is there ever a time when the emotional impact upon a loved one can be the basis for a lawsuit by that loved one?

The answer is “YES”. When the loved one finds themselves within what is known as the “Zone of Danger”at the time a member of their immediate family was injured or killed…

To be eligible to bring a “zone of danger” lawsuit for the emotional trauma and psychological impact an immediate family member’s accident had upon you, it would be necessary to demonstrate not only that it was an immediate family member that was involved, but that:
—You were also in such proximity to the accident victim that you could well have been injured yourself;
—You were aware of the fact the immediate family member was being seriously injured or killed as the event was occurring;
— You have valid medical proof that you suffered a psychological injury as a result of that accident (psychological or psychiatric medical treatment).

Zone of Danger cases are relatively rare since the requirements to bring such a lawsuit are very stringent. There is a general perception that whereas physical injuries are usually subject to objective tests, psychological injuries might be more susceptible to fraud and so conditions are created that make the infliction of psychological injuries more plausible.

It takes an experienced Personal Injury Attorney to recognize the possible availability of a Zone of Danger case, and to properly analyze the circumstances surrounding an accident to appropriately apply the requirements to be successful in such a lawsuit.

WRONGFUL DEATH | CHILDREN AND INFANTS

We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to “conscious pain and suffering” and “pecuniary loss”, the latter item of which, in the case of a child or infant, is understandably negligible.

In determining “pecuniary loss”, the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to “conscious pain and suffering” that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.

If the defendant evinced conduct that was utterly indifferent to the safety of others, exhibited gross negligence or showed a conscious disregard for the life of others, then punitive damages might be applicable. In such instances, recoveries can be significantly higher.

If a parent was at the scene of the accident, in what is known in legal parlance as the “zone of danger”, then the parent may possibly be entitled to separate damages for “emotional trauma” inflicted by witnessing the accident.

Both “punitive damages” and a “zone of danger” claim are rarely available, but the experienced Personal Injury Attorney will be alert to any possible avenue to increase what might be, frankly, an otherwise inadequate recovery.

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A federal judge awarded $1.6 million to a family as a result of their daughter’s death in an automobile accident.

The daughter was an infant and was killed when the car she was in, parked along a Kentucky parkway, was slammed by a U.S. owned vehicle driven by an American soldier.

The amount of damages awarded in this case would be virtually impossible to recover in a similar case in New York State, barring horrific pain and suffering by the infant, over an extended period of time, which was not indicated in the matter arising in Kentucky.

The reason: the factors the law permits to be considered. in determining recoveries in wrongful death cases in New York, virtually always result in what can legitimately be called “shockingly low” damage awards in infant cases (“infant” being defined here, not in the legal sense, but by the layman’s definition).

Every state has its own elements that may be applied in determining the amount of award in wrongful death cases.

Florida, for example, permits consideration of the family’s bereavement–the emotional impact on the surviving family members. Some other states do so as well. New York does not !! The Federal Government applies different standards depending on varying federal statues that apply to a particular situation. In the case noted above, the federal courts gained jurisdiction because an American Army vehicle and driver were involved, and particular statues applicable to this situation obviously permitted a recovery of this magnitude.

Experienced Personal Injury Attorneys will often cringe when faced with the burden of informing grieving relatives, who have recently lost a child, that insult to injury will be visited upon them in the form of a much lower than imagined monetary recovery–not that any amount in the world could ever adequately compensate them for their tragic loss. Most experienced, forthright personal injury attorneys will inform families, who seek to retain their firm, the “facts of life” regarding this egregious situation at the very first opportunity.

This article will be followed by a closer look at the elements involved in wrongful death cases as they affect the passing of an infant.

CAN I SUE THE CITY ? | EXAMPLES OF “SPECIAL DUTY RELATIONSHIPS”

Recall our general rule: The City has no duty to act in any of its governmental functions, unless a “special duty relationship” was created with respect to the injured person (see Feb. 12, 2010 post). For the record, as an aside, this general rule does NOT apply in most matters relating to highways–for whatever reason.

Obviously, one of the premier governmental functions of a city are its police activities. Unsurprisingly, an area garnering a great percentage of inquiries to Personal Injury Attorneys are from individuals injured by the actions, or inaction, of the police. Aside from bankrupting the City if , for example, every single crime victim was entitled to sue the City, the courts will often demand the Plaintiff demonstrate a “Special Duty Relationship” existed between the Plaintiff and the Police (see Feb.12,2010 blog post for elements of “Special Duty Relationship“).

Some examples of decisions by courts might prove interesting, if not actually instructive:

—Police warned an individual they saw getting out of a fully parked vehicle not to drive his vehicle because he was obviously intoxicated. The police then went on their way. Fifteen minutes later the same individual was involved in an accident causing an injury. The injured party brought suit against the municipality because the police failed to detain the intoxicated person. RESULT: The city was NOT liable. There is no liability for failure to provide police protection here since there was no “Special Duty Relationship” established with the party eventually injured. (Jessop v. Niagara Falls)

—The City of New York was sued when, as a result of an automobile accident, police on the scene directed one of the involved vehicles to back up. That vehicle pinned a bystander against another vehicle, eventually resulting in an amputation of that bystander’s leg. RESULT: The law suit by the bystander against the City was successful. The court said that once the officer undertook to take action, that action had to be done properly and with care! (Kovit v. Hallums)
—Police removed a vehicle from an accident on a highway and placed flares at the scene. A motorcycle driver hit the removed vehicle and sued the City of New York for what he claimed was improper securing of the original accident scene. RESULT: The City was not liable. Placing of flares is a governmental function. Without a “Special Duty Relationship”, which was not established, the City cannot be held responsible. (Respass v. City of New York).
—EMS workers, working for the NYC Health and Hospitals Corporation, responded to an emergency. The person treated by the EMS personnel died. The estate of that deceased sued. RESULT : The lawsuit was permitted. Once treatment was started, it had to be performed properly and competently. (see Kovit case above) (Fonville v. NYCH&H Corp.)

CONCLUSION: In very many instances, even a highly experienced Personal Injury Attorney will have to examine a case in detail, before making a fully informed and proper decision, as to whether a particular matter is properly subject to a suit against a municipality.
Experience, in “Special Duty” cases, is an invaluable commodity when hoping to maximize the chances of successfully pursuing a matter against a municipal defendant.

MUNICIPAL LIABILITY | CAN I SUE THE CITY? | CASES AGAINST NEW YORK CITY | “SPECIAL DUTY”

There is a basic rule that is applied when a lawsuit is contemplated against a municipal entity, such as the City of New York. That rule gives the City, or any municipality, “absolute immunity” for the acts of that government’s employees. This holds true even if those employees failed to act when they should have, or having acted, they did so in a negligent manner.

An individual resident of the City will have no basis for a successful lawsuit for injuries sustained through the acts of the City’s employees UNLESS that individual can demonstrate that a “SPECIAL DUTY” existed on the part of the City in favor of that particular individual.

The New York Court of Appeals (New York’s highest court) established four “elements” that create a “SPECIAL DUTY” relationship between a municipality and an individual:
— the municipality assumes a duty to act on behalf of the individual;
— the municipality’s employees must be aware of the fact that a failure to act may result in harm to that individual;
— there must have been some direct contact between the municipality’s employees or agents and the affected individual; and
— the individual harmed must have been justified in relying upon the assurance given to him/her by the city’s employees or agents.
Without demonstrating the existence of each and every one of these four elements, the injury incurred through the acts or omissions of municipal employees may go entirely uncompensated.

An experienced Personal Injury Attorney will also be aware of the fact that certain broad areas of acts by municipal employees are not considered “governmental” in nature–which acts ARE subject to the rules of “Special Duty Relationships”—but are , rather, considered “proprietary” in nature, and are instead decided by ordinary rules of liability and do not require the establishment of a “special duty” in order for the city to be held liable.

NOTICE OF CLAIM | MUNICIPAL LIABILITY | SPECIAL USE

Until 2003 the City of New York was primarily responsible for injuries incurred by individuals through cracks, potholes and uneven surfaces on City sidewalks. The primary responsibility shifted in 2003, through City Council legislation, that made the abutting commercial or residential landowners primarily responsible. However, in the case of one, two or three family homes, where those residences are at least partially owner occupied, and where the residence is used exclusively for residential purposes, the City of New York remains primarily responsible.

Nevertheless, even in those instances where the City of New York would be primarily responsible for accidents that occur because of sidewalk defects, the liability shifts to the homeowner if the cause of the accident was some item that was installed for the benefit or “special use” of the adjoining homeowner.

Defects in driveways are common “special use” situations. A water shut off valve, embedded in the sidewalk, has been held to be a “special use”.

Wisdom would dictate the service of a Notice of Claim on the City of New York even if a “special use” is anticipated. It simply cannot hurt, and failure to do so could be catastrophic if an incorrect assumption regarding a “special use” is made. Below I have added the legislation that shifts liability for sidewalk defects mainly from the City of New York to abutting landowners.

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!