Attorney Blog

Kings County Court Dismisses Worker's Accident Claim - And Disregards Jury's Verdict

jmcooper@jmcooperlaw.com (Blog Author)27827 — Sun, 07 Mar 2010 08:00:00 EST

Like it or not, you have to respect when a judge issues a courageous decision.

In Osorio vv. Kenart Realty, Inc., the apprentice-plaintiff sued for the personal injuries he sustained when the flammable glue he and his supervisor were using caught fire. Following a jury verdict that found the defendant property owner responsible (at least in part) for the worksite accident, the Kings County trial judge did something that is quite rare: he granted the defendant's motion to set aside a jury verdict as contrary to the weight of the evidence, and dismissed the case.

In granting the motion, the Court held that the plaintiff did not prove that the defendant had created the dangerous or defective condition; nor, according to the Court, did the defendant supervise the plaintiff's work that led to the accident. The Court then summarized the legal basis for its decision as follows:

"Certainly, the defendants had a duty the maintain their premises in a safe condition, but they did not have the onus to guard against hazards inherent in the plaintiff's work nor hazards caused by a condition that plaintiff was engaged to repair nor hazards which were readily observed by plaintiff considering his age, intelligence, and experience ...

"This Court acknowledges that when there is an 'inherently dangerous' situation a defendant is precluded from asserting the independent contractor theory ... However, to maintain such a position the plaintiff must provide proof of the dangerous nature of the work and that the danger was foreseeable. Here, plaintiff did not shoulder his burden of proof."

(This decision is scheduled to appear in tomorrow's edition of the New York Law Journal.)

Shocker: Toyota's "Fixes" Of Gas Pedal Defect Apparently Don't Work

jmcooper@jmcooperlaw.com (Blog Author)27654 — Wed, 03 Mar 2010 08:00:00 EST

Just over an hour ago, MSNBC reported that the NHTSA is still receiving numerous complaints from Toyota drivers that after having taken their Toyotas in to their dealerships for repair in response to the massive defective product recall, their cars are still accelerating for no apparent reason.

Unfortunately, it looks like my prediction in "How Toyota's Efforts to Conceal Its Design Defects Became a Whole Web of Lies" has come true: no one trusts them when they say the problems are fixed, and more importantly, NO ONE SHOULD.

Absent "Special Relationship," Municipality Cannot Be Held Liable For Playground Assault

jmcooper@jmcooperlaw.com (Blog Author)27601 — Tue, 02 Mar 2010 08:00:00 EST

In light of the overwhelming precedent that effectively barred this suit from the get-go, I do not understand why this case was ever filed.

In Ruiz v. City of New York, a New York County case that was decided on February 22 and reported in tomorrow's edition of The New York Law Journal, the plaintiff was assaulted in a New York City playground by other children who were wearing boxing gloves. Predictably, the plaintiff sustained fairly serious personal injuries as a result of the assault, and then sued the City, asserting that it was negligent in failing to properly maintain, manage or supervise the playground.

In granting the City's motion to dismiss, however, the Court cited the long-standing principle that "once it is determined that the municipality was exercising a governmental (as opposed to proprietary) function, it can only be found liable if there is a "special relationship" between the municipality and the claimant. The elements of this "special relationship" are: "(1) an assumption by the municipality, through promises or action, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." Cuffy v. City of New York, 69 N.Y.2d 255, 260-61 (1987).

Not surprisingly, the instances where a plaintiff successfully proved the existence of a "special relationship" that was sufficient to charge a municipality with liability for playground or school assaults have been rare indeed. (For one example, see "How To Prove Your School Negligence Case"). Under the circumstances, I have to assume that the plaintiff's injuries were quite significant, and that the plaintiff's attorney was willing to take a chance that he could defeat the dispositive motion that was likely (and, in fact did) to come; otherwise, I cannot see why anyone would even try to bring this lawsuit.

Preemption: Why Some Failure to Warn Claims Are Barred By Federal Law

jmcooper@jmcooperlaw.com (Blog Author)27288 — Thu, 25 Feb 2010 08:00:00 EST

Previously, in How To Prove a Failure To Warn Claim in a Defective Products Lawsuit, we discussed, in general terms, the elements of a successful failure to warn claim in the products liability context. As noted in that article, however, there are also often formidable defenses that may prove fatal to failure to warn claims, the most notable of which is where the labeling of the product is governed by Federal statute, which in legal terms is referred to as "preemption." Under those circumstances, the sole inquiry is whether the labeling of the product conformed to the statute's labeling requirements, and to the extent that the claim would seek to impose labeling requirements that differ from those set forth in the statute, such claim must and will be barred, or preempted, as a matter of law.

By way of example, in Liebstein v. LaFarge North America, Inc., a case currently pending before a New York Federal Court, the plaintiff sued to recover damages for the chemical burns he sustained after using the defendants' cement mix. Among the plaintiff's claims was his allegation that his injuries were caused by the defendants' failure to adequately apprise or warn him of the dangers inherent in exposing his skin to the cement mix.

In a decision that was rendered on February 12, and re-printed in the New York Law Journal on February 23, the Court dismissed the plaintiff's common law (i.e., non-statutory) failure to warn claims on the grounds that the cement mix at issue in the case qualified as a "hazardous substance," and therefore, "the labeling was governed by the Federal Hazardous Substances Act ("FHSA"), 15 U.S.C. § § 1261-1278 (2000)." (The FHSA was enacted in 1960 to 'provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use.)

Even assuming the plaintiff clears the initial hurdle of preemption, he is not out of the woods on his failure to warn claim; he must still prove that the difference between the language that was on the label and what should have been on the label was responsible for his accident and injuries. When you consider that this may mean splitting the hairs between DANGER! and CAUTION!, this is not a simple claim in the slightest.

Appellate Court Refuses To Dismiss School Assault Case

jmcooper@jmcooperlaw.com (Blog Author)26815 — Tue, 16 Feb 2010 08:00:00 EST

Sometimes, you can't blame them for trying.

In Hofmann v. Coxsackie-Athens Central School District, the plaintiff's 13-year-old daughter, a student at the defendant middle school, sustained serious personal injuries, including a fractured jaw that required corrective surgery, after she was assaulted by two fellow middle school students. Not surprisingly, the school moved to dismiss the case on the grounds that this assault was sudden and unforeseeable, and therefore, the school asserted that they could - and should - not be held liable for the child's injuries. (For additional information on this topic, please see "How to Prove Your School Negligence Case").

A mere cursory reading of the Appellate Division, Third Department's decision reveals that this motion was dead on arrival, however. And here's why:

Contrary to the school's boilerplate contention that "it had no notice that this particular assault would take place or that either assailant had a history of engaging in the type of conduct that would have made it foreseeable that such an attack would occur," the plaintiff had been assaulted - and threatened with future violence - by the same two students the Friday before the attack on school grounds at a school-sponsored activity (which the school was made aware of), Moreover, the Court noted the following:

"[The school] did know, prior to the actual assault, that the male assailant had compiled an extensive disciplinary record while attending school and that, in the 14-month period leading up to this incident, he had been cited no less than 30 times for disciplinary infractions involving misconduct committed while on school grounds. These infractions included insubordination to school staff, disruptive conduct in the classroom, inappropriate and forcible touching of female students, extensive use of profanity and assaultive conduct directed towards other students, some of which resulted in physical injury ... Based on this history, one could conclude that the School District should have reasonably anticipated that the male assailant, because of his propensity to engage in such inappropriate conduct, posed a danger to others attending his school and could well assault another student."

In short, this case is a textbook example of how you can prove a school assault case.

Worker Injured At Closed Construction Site Not Entitled to Recover, Court Holds

jmcooper@jmcooperlaw.com (Blog Author)26704 — Sun, 14 Feb 2010 08:00:00 EST

In Wysk v. NYC School Construction Authority, the plaintiff was injured when he was struck by a wind-blown tar bucket while he was working on a school roof 75 feet above the ground. At first blush, the plaintiff should have been entitled to prevail on his Labor Law claims as a matter of law.

There was one small (read: big) problem, however: the defendant had closed the worksite that day due to the inclement weather, and the plaintiff's employer (and the plaintiff) didn't belong on the site at that time.

Strangely, despite holding that the defendant's proof that the site was closed at the time necessarily precluded finding in plaintiff's favor as a matter of law on his claims, the Court also denied the defendant's motion on the grounds that the defendant's proof was insufficient to warrant a judgment in their favor either.

I suspect the defendants will appeal this order, and I would not be surprised if they win this on appeal.

Worker Who Fell From Ladder Wins Judgment - Even Though Ladder Not Defective

jmcooper@jmcooperlaw.com (Blog Author)26564 — Thu, 11 Feb 2010 08:00:00 EST

In Sinchi v. City of New York, a decision that was reported in today's New York Law Journal, and handed down by a Queens trial court on February 2, a construction site worker who fell from an unsecured ladder won summary judgment on his Labor Law §240(1) claim - even though there was no proof that the ladder was defective in any way.

Citing a litany of cases, the Court held that the plaintiff was entitled to a finding of liability against the defendants as a matter of law (i.e., even without a formal plenary trial), and stated as follows:

"Plaintiff established a prima facie case that his injuries resulted from a violation of Labor Law §240(1), with proof that an unsecured ladder upon which he was standing tipped over, causing him to fall and sustain injuries (see Yin Min Zhu v. Triple L. Group, LLC, 64 AD3d 590 [2009]; Barr v. 1575 Ave., LLC, 60 AD3d 796 [2009]; Mingo v. Lebedowicz, 57 AD3d 491 [2008]. Contrary to defendants' contention, where, as here, the plaintiff alleges that the subject ladder tipped over for no apparent reason, the plaintiff does not have the burden of setting forth evidence that the ladder was defective." (enphasis added)

For additional information on this topic, please see "What A Plaintiff Must Prove to Win A Construction Site Accident Case."

NY Times Editorial: How Toyota's Efforts To Conceal Its Design Defects Became A Whole Web of Lies

jmcooper@jmcooperlaw.com (Blog Author)26313 — Sun, 07 Feb 2010 08:00:00 EST

Toyota either has, or is about to learn, that the problem with going to desperate measures to conceal design defects with your product lines is that you can go too far, and then get caught in your own web of lies. As noted in a New York Times editorial that was published this past Friday, Toyota's claim that the federal safety agency had found no defects with their cars where the floor mat was compatible with the vehicle and properly secured was patently false.

Now, Toyota has essentially been forced to issue a product recall of over 4 million vehicles, roughly 3 times the number of vehicles it sold in North America in the past year. And, looking forward, I imagine this is only a small part of Toyota's problem, because I don't see how anyone in their right mind would trust a representation from either Toyota or the government (which, in fact, did look the other way on some of these problems until they mushroomed) that these defective designs, whether with regard to the sudden acceleration, the "sticky" gas pedals, or problematic driver-side mats had been remedied, and the cars were once again safe to be driven.

Stated differently, how can Toyota convince anyone to buy one of their products?

Foster Parents Cannot Be Sued For Negligent Supervision By Their Kids, Court Holds

jmcooper@jmcooperlaw.com (Blog Author)26301 — Sat, 06 Feb 2010 08:00:00 EST

Since 1974, when New York's highest court handed down its seminal decision in Holodook v Spencer (36 NY2d 35), the law in New York has been that a "child does not have a legally cognizable claim for damages against his parent for negligent supervision."

But what if the child was being supervised by a foster parent rather than his biological parent? In the 36 some-odd years since Holodook, that question was never decided by a New York appeals court - until now.

In McCabe v. Dutchess County, the 16-month old infant plaintiff climbed out of his crib and onto a dresser, and then fell from the dresser, sustaining serious personal injuries, including a fractured leg. The infant, through his court-appointed guardian, then sued his foster parents to recover damages for his personal injuries. (By way of background, the reason he was in foster care to begin with was because his mother had been found to have traces of cocaine in her blood at the time he was born.)

In reversing the trial court's decision that had allowed the infant's claim against his foster parents to stand, the Appellate Court cited the now-famous policy considerations outlined by the Holodook court for barring negligent supervision claims by children against their parents:

"We can conceive of few, if any, accidental injuries to children which could not have been prevented, or substantially mitigated, by keener parental guidance, broader foresight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction, though detriment more subtle and perhaps more harmful than physical injury might result. If the instant negligent supervision claims were allowed, it would be the rare parent who could not conceivably be called to account in the courts for his conduct towards his child directly ..."

The court continued as follows:

"These same considerations apply to foster parents, who are responsible for the around-the-clock supervision of the day-to-day activities of children under their care for extended periods of time and are required to treat the children as members of their households."

Clearly, the emotions and policy decisions underlying this decision are complicated. But in the foster parent context, I don't either extreme is correct. In my view, I think a better rule, on policy grounds, would be to immunize foster parents from standard negligence claims, but to allow for liability if they are found grossly negligent, or reckless, thereby protecting both foster parents as well as the children.

The Most Important Exception To Owner/Contractor Liability For Worksite Accident

jmcooper@jmcooperlaw.com (Blog Author)26189 — Thu, 04 Feb 2010 08:00:00 EST

Although much has been written about the automatic, or near-automatic, liability of an owner or contractor for a worker's injuries that were sustained at a construction or worksite that resulted from a gravity-related danger or due to their failure to furnish the worker with proper safety equipment (see, e.g., "How To Prove A Construction Site Accident Case" and "Construction Accident Liability Under New York Law"), there is an important exception to this rule, which is known as "the homeowners' exemption."

As noted in Parnell v. Mareddy, a decision that was handed down by New York's Appellate Division, Second Department on January 26, in order to receive the protection of the homeowners' exemption, a homeowner has to satisfy two prongs required by the statutes (see Chowdhury v Rodriguez, 57 AD3d 121, 126). First, a homeowner has to show that the work was conducted at a dwelling that is a residence for only one or two families (see Labor Law §§ 240[1]; 241[6]; Chowdhury v Rodriguez, 57 AD3d at 126); second, the homeowners must demonstrate that they did not "direct or control the work" (Chowdhury v Rodriguez, 57 AD3d at 126-127, quoting Labor Law §§ 240[1]; 241[6]).

In this particular case, it was undisputed that the work was performed at the homeowners' one-family dwelling, and that they did not control or direct the work being performed (presumably, and although the decision does not clarify this particular point, this was done by a contractor). Consequently, the Appellate Division reversed the trial court's holding, and dismissed the plaintiff's claims that were brought pursuant to §§240(1), 241(6) and 241-a [Protection of workmen in or at elevators, shaftways, hatchways and stairwells].

What Types of Accidents Constitute "Repair" Work Under Labor Law §240(1)?

jmcooper@jmcooperlaw.com (Blog Author)26014 — Mon, 01 Feb 2010 08:00:00 EST

As set forth in my earlier articles, "Construction Accident Liability Under New York Law" and "How To Prove A Construction Site Accident Case," one of the principal theories under which a construction site worker can recover for his work-related is pursuant to Labor Law §240(1), which imposes upon contractors and building owners a non-delegable duty to provide certain safety equipment for workers engaged in the "…erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure."

So what about the case where the plaintiff is performing work that is ancillary to a repair, such as where he was directed to push bakery racks to make the repair to the bakery's conveyor belts?

A trial court in Rockland County recently held that notwithstanding that this accident did not occur on a formal "worksite," the plaintiff could still recover under the Labor Law.

In Mielnick v. Demarest Mill Realty, a trial court in Rockland County recently held in that "It is well settled that Labor Law §240(1) …is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed." Citing to another opinion of the Court of Appeals (New York's highest Court), the trial court stated that "Labor Law §240(1) protection is not limited to work performed on actual construction sites. Joblon v. Solow, 91 N.Y.2d 457, 1998."

Thus, while changing a lightbulb, for example will not constitute actionable "repair work" under the statute, the Court is obliged to consider the following factors in determining whether or not the plaintiff's particular activity can give rise to a viable construction site accident claim:

1) whether the work "…involved replacing components that require replacement in the course of normal wear and tear"; and,
2) whether the equipment being worked upon was inoperable or not functioning properly.

I am willing to bet the ranch that the defendants will be appealing this decision.

Appeals Court Limits Adverse Impact of Attorney's Admission in Opening Statement

jmcooper@jmcooperlaw.com (Blog Author)25865 — Fri, 29 Jan 2010 08:00:00 EST

Apparently I'm not the only one who empathized with the plaintiff's trial lawyer in this case; the Appellate Division felt the same way.

In Beshay v. Eberhart, L.P., the plaintiff sustained serious personal injuries to his eye when, after removing his safety goggles for a short time, a piece from a circular saw that was being operated by one of his co-workers flew off and into his unprotected eye.

Based upon his attorney's statement during his opening remarks to the jury that the plaintiff had voluntarily removed the safety goggles he had been provided before the accident, the trial judge not only dismissed the plaintiff's claims that the defendants were liable under Labor Law section 241(6) (which imposes liability for specific statutory safety violations), but went further and dismissed the plaintiff's claims in their entirety - including those for common law negligence and strict products liability.

In reinstating the majority of the plaintiff's claims, the Appellate Court noted that the lower court had gone too far, and cited the following general rule:

"A dismissal of a complaint after the opening statement of a plaintiff's attorney is warranted only where it can be demonstrated either (1) that the complaint does not state a cause of action, (2) that a cause of action that is otherwise stated is conclusively defeated by something interposed by way of a defense and clearly admitted as a fact, or (3) that the counsel for the plaintiff, in his or her opening statement, by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants."

Since the plaintiff's attorney said nothing that compromised plaintiff's common law negligence or defective products claims, the trial court erred in dismissing those claims.

When Lawyers Try To Defend The Indefensible

jmcooper@jmcooperlaw.com (Blog Author)25554 — Sun, 24 Jan 2010 08:00:00 EST

In slamming attorneys from the Corporation Counsel (the agency charged with defending New York City against various legal claims) for deliberately withholding critical information to a civil rights case, a federal judge from the Southern District of New York stated as follows:

"I think it plain that Corporation Counsel's conduct cannot be excused. The able Assistant Corporation Counsel who argued the case, and was not involved in the underlying facts, had the unenviable task of defending the indefensible. The papers submitted by Corporation Counsel on its own and the NYPD's behalf seek to justify the failure to notify Counsel and the Court of the rescission of the Order being litigated by describing internal discussions and perceptions, and by contentions that certain impressions should have been formed from communications that were exchanged. This is not good enough. Such rationalizations entirely disregard Corporation Counsel's professional obligation as officers a/the Court to notify their adversaries and the Court that Interim Order 47, the focal point of the ongoing litigation, had been rescinded. That is not an onerous obligation.

"Corporation Counsel's conduct in keeping mum about this event of central importance, and continuing the litigation as if it had not occurred, multiplied the proceedings unnecessarily and therefore unreasonably."

In opposing the plaintiffs' attorneys' application seeking sanctions, including to recover the legal fees they (needlessly) expended in litigating this particular issue, the Corporation Counsel responded that sanctions were unwarranted, because the plaintiffs could not demonstrate that they had acted in bad faith.

Given the tenor of this judge's opinion, his response is unsurprising:

"I conclude without difficulty that Corporation Counsel's conduct constitutes a quintessential example of "neglect or reckless failure to perform [their] responsibility as an officer of the court" to notify opposing counsel and this Court of a material change in the underlying litigated facts, a particularly egregious failure when one considers Corporation Counsel's belated notification of the replacement of lnterim Order 47 was made inadvertently, not intentionally."

He then proceeded to require Corporation Counsel to pay the plaintiffs' legal fees incurred in litigating this issue for approximately 1-1/2 years.

From my vantage point, it is refreshing to see a judge take a tough stance against parties that play fast and loose with the rules and their ethical obligations.

Construction Site Worker Wins Summary Judgment on Labor Law 240(1) Claim

jmcooper@jmcooperlaw.com (Blog Author)25009 — Wed, 13 Jan 2010 08:00:00 EST

Applying the Court of Appeals' (New York State's highest court) recent decision in Runner v. New York Stock Exchange, a Bronx judge recently awarded judgment as a matter of law to the surviving family of a construction worker on his personal injury and wrongful death claim.

In Massa v. NYC Economic Development Corp., the plaintiff-decedent construction worker was tragically killed when the Bobcat Skid-Steer Loader he was operating fell 26 feet to the ground after the Bobcat became entangled with something attached to the beam that it was trying to move off the side of the building. In the process, the decedent was partially thrown from the Bobcat.

In seeking summary judgment, the plaintiffs alleged that the defendants had violated Labor Law §240(1), contending that the defendants were liable because the plaintiff-decedent's accident had been caused by the inadequacy of the defendants' protective devices to shield him from harm directly related to the "application of the force of gravity to an object or person."

Not surprisingly, the Court agreed, and sided with the plaintiff, finding the defendants liable as a matter of law. Now the case will proceed on damages alone.

Assaulted Student's Negligent Supervision Claim Against School Survives Dismissal

jmcooper@jmcooperlaw.com (Blog Author)24950 — Tue, 12 Jan 2010 08:00:00 EST

After getting punched in the face with enough force that it broke his jaw and required surgical wiring to repair it during his lunch period, high school student Tyrus Hodge and his parents sued the school, claiming the school was liable for these injuries for failing to prevent this occurrence. You may be wondering, "why should the school be held responsible for what appears to be a relatively spontaneous violent act of another student?" In truth, the defendants asked the very same question, and asked the Court to dismiss the case on that basis.

In denying the defendants' motion to dismiss the plaintiffs' negligent supervision claim, however, the Court noted that the assaulting student's rather impressive disciplinary history, including other instances of violent conduct and 11 suspensions, putting the school on notice of this student's dangerous, or violent, propensities.

In addition, the school only assigned two teachers to monitor the cafeteria which seated 250 students (and that none of them were present at the time of the incident), despite the school's tacit knowledge that there had been 28 prior incidents in the cafeteria involving other students who were suspended for fighting, pushing, slap boxing and throwing soda cans and balls. Under the circumstances, the Court held that a jury should be allowed to consider the question was whether the school's duty to provide adequate supervision had been breached.

The upshot: I think this is a close case, and it could go either way on appeal.

Why Disproving A Construction Site Accident Case Isn't So Simple

jmcooper@jmcooperlaw.com (Blog Author)24857 — Mon, 11 Jan 2010 08:00:00 EST

In Cocoli v. Champion Construction Corp., a decision that was just reported on in the New York Law Journal, a construction site worker sued to recover damages for the serious personal injuries he sustained when he opted to use the ladder that was left by another tradesman at his worksite (the ladder he had been provided with was too short). After he reached the top of the ladder, the ladder became unsteady, and ultimately toppled over, carrying the plaintiff with it. And after he hit the ground, the plaintiff noticed that the ladder lacked rubberized footings to keep the ladder from slipping, and that one of the ladder's legs was broken.

From the defendant's perspective, the questions as to why the plaintiff didn't notice these problems before he fell - or before he climbed the ladder - were not only fair game, but, when considered in conjunction with the plaintiff's failure to use one of the other ladders that they had provided, should have led to the dismissal of his case on the grounds that he was a "recalcitrant worker."

The court didn't see it that way, however; since the defendants couldn't prove that the plaintiff disobeyed a specific instruction to use an available safety device that was provided by the employer or to avoid using a particular unsafe device, defendants' motion to dismiss the plaintiff's Labor Law §240(1) claim had to be denied, and the plaintiff was entitled to partial summary judgment.

Insurer's Lawyer: Plaintiff's Lawyer Had No Right To Believe/Rely On What We Said

jmcooper@jmcooperlaw.com (Blog Author)24811 — Sun, 10 Jan 2010 08:00:00 EST

Even if you think you've seen a lot (and maybe you have), every once in a while a case comes along whose facts throw you for a loop. And Madar v. 1333 Realty, LLC is precisely one of those cases.

In this case, the plaintiff settled his case with the defendant's insurance company based upon the insurer's attorney's affirmative representation that the defendant only carried $25,000 in liability insurance. Two years later, he discovered that the attorney had been mistaken; in fact, the defendant carried insurance for ten times that amount - $250,000.

So, you would guess, the insurance company and their counsel would own up to their mistake and agree to vacate the settlement agreement, right? I mean, after all, since the plaintiff's injuries were clearly worth more than $25,000, they would do the honorable thing, wouldn't they?

Nope. Not even close.

Their response was to oppose the plaintiff's application, and argue that the plaintiff had no right to rely on their counsel's representations; in other words, the insurance company's attorneys argued that the plaintiff was obligated to assume that the insurance company and their attorneys were either mistaken or lying.

This new low is just breathtaking, isn't it?

Don't Drink ... and Walk, Study Says

jmcooper@jmcooperlaw.com (Blog Author)24351 — Fri, 01 Jan 2010 08:00:00 EST

Don't drink ... and walk?

A study cited by the New York Times seems to say exactly that, noting that, on average, January 1 (New Year's Day) has more pedestrian crash deaths than any other day of the year, and that it also has the fifth largest number of deaths per day overall, also due to elevated blood alcohol levels. Parenthetically, the study also noted that July 4 (Independence Day) has more crash deaths on average than any other day of the year, with a significant percentage of the vehicle-related deaths involving alcohol.

Brooklyn Court Dismisses Child's Lead Poisoning Claim

jmcooper@jmcooperlaw.com (Blog Author)23993 — Sun, 27 Dec 2009 08:00:00 EST

Lest anyone think I was just being an alarmist in "The Most Critical Mistake To Avoid When Suing A Municipality," just last week the New York Law Journal published an opinion by Kings County trial judge Robert Miller in Sharpe v. City of New York, which dismissed the lead poisoning case (which presumably included severe personal injuries, including plumbism and cognitive deficits) brought by an infant on the grounds that this plaintiff did not timely file their notice of claim against the City, and then failed to offer a reasonable excuse for their failure to do so.

CPSC Launches New Product Registration Initiative - But They Can - And Should - Do Better

jmcooper@jmcooperlaw.com (Blog Author)23942 — Thu, 24 Dec 2009 08:00:00 EST

On December 16, the U.S. Consumer Product Safety Commission (CPSC) unanimously approved a new product registration program that requires manufacturers of durable infant or toddler products to establish and maintain a registration card program for 18 product categories, including cribs, booster, folding and high chairs, changing tables, play yards, strollers, infant carriers and bathtubs.

More specifically, the manufacturers of these infant and children products must do the following: (1) provide a postage-paid consumer registration form with each product; (2) keep records of consumers who register their products with the manufacturer; and (3) permanently place the manufacturer's name and contact information, model name and number, and the date of manufacture on each such product. The rule also establishes requirements for registration through the internet.

Overall, I like the idea, and agree that this new rule will foster a higher rate of product registrations, and thereby increasing the overall effectiveness of our recall process.

But you know what would probably work even better? If the registration were electronically automated at the time of the product's purchase, such as when you're paying for the item while on the store's check-out line. And that would leave far less room for consumers to opt-out, and result in an exponentially higher rate of product registrations and reduce the manufacturer's expenses in printing and paying for the postage of all these children's products.

Don't you agree?

Construction Site Worker That Was Injured When Makeshift Pulley System Failed May Recover Damages, High Court Says

jmcooper@jmcooperlaw.com (Blog Author)23906 — Wed, 23 Dec 2009 08:00:00 EST

Although I often find cases that revolve around statutory interpretation somewhat bland (and I don't think I'm alone in this) I must admit that the Court of Appeals' decision in Runner v. New York Stock Exchange, which turned on the application of a narrow provision of Labor Law §240(1) (which, generally speaking, holds owners of multiple dwellings and their contractors strictly liable for the personal injuries sustained by construction site workers that are hurt due to elevation-related hazards; for a general overview of this and the other primary Labor Law statutes that were enacted to protect construction site workers, please see "What A Plaintiff Must Prove To Win A Construction Site Accident Case) most fascinating.

In this particular case, the plaintiff sustained personal injuries when he and his co-workers were moving a nearly 1000 pound reel of wire between two levels in a basement hallway of a commercial building. In order to bridge the four step difference in height between the two levels, the plaintiff and his co-workers used a rope to lower the reel down the steps, and thereby created their own makeshift pulley system. Unfortunately, the plaintiff, who was acting as a counterweight in this pulley system, was badly hurt when he was yanked into a pipe that the crew had placed across the hallway door as part of the makeshift pulley system. The Court was thus faced with the following question: If an injury stems from neither a falling worker nor a falling object that strikes a plaintiff (the usual cases where liability under this statute is imposed), can the defendants still be held liable on the theory that the injury resulted from an elevation-related hazard (i.e., section 240(1) of New York's Labor Law)?

In answering this question in the affirmative, the Court of Appeals reads this statute expansively, holding that "we think the dispositive inquiry framed by our cases does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential."

Police Must Still Drive Responsibly, Even When Responding To Emergency, Court Holds

jmcooper@jmcooperlaw.com (Blog Author)23905 — Wed, 23 Dec 2009 08:00:00 EST

In an important - and logical - decision, New York's highest court recently held that while a police officer's driving in responding to an emergency situation is judged by whether he was reckless (which is far more lenient than general negligence principles), that rule of the Vehicle and Traffic Law is not without limits.

And the reason for the Court's holding is readily apparent from the facts of Ayers v. O'Brien, where the police officer sued for the personal injuries he sustained when his cruiser collided with another car while making a u-turn in order to respond to a police call. In holding that the officer could not rely upon this statute to prevent the defendant driver from claiming that the police officer's negligence was at least partially responsible for the two-vehicle accident, the Court stated the following:

"Vehicle and Traffic Law §1104 (e) cannot be used as a sword to ward off a comparative fault defense. It is to be applied only when the emergency vehicle operator is sued or countersued. Plaintiff's proposed interpretation of the statute would shift the responsibility for any contributory negligence on the part of an emergency vehicle operator to the driver of another vehicle whom the emergency vehicle operator sues. This would result in significant unfairness in some cases. For instance, the operator of an emergency vehicle whose own negligence, while not rising to the level of reckless disregard, caused his or her injuries would be entitled to full damages even from a minimally negligent defendant. There is no evidence that such a financial windfall was intended or foreseen by the Legislature when it granted emergency vehicle operators greater freedom to disregard rules of the road while undertaking their responsibilities."

Why It's So Important To Investigate Your Child's Negligence Claim BEFORE You File Suit

jmcooper@jmcooperlaw.com (Blog Author)23512 — Wed, 16 Dec 2009 08:00:00 EST

Without question, negligent supervision claims against schools are difficult to prove successfully. (For a rare instance where that claim has succeeded, see "Why A School Was Deemed Responsible For A Science Experiment That Went Awry"). But this task becomes infinitely harder when the child's claim is not appropriately investigated before legal papers are served and the case is begun.

In Tsai v. Duh, the plaintiff-student was struck by a vehicle that was passing in front of his school during the school's lunch break. Following depositions, the defendants moved to dismiss the child's personal injury action on different grounds. The driver of the vehicle that struck the plaintiff-pedestrian asserted that the child darted out into the roadway, and afforded him no time to avoid colliding with the plaintiff. The City of New York, on the other hand, claimed that since the accident technically occurred off of school property, they could not be held liable.

In responding to the City's papers, the plaintiff's attorneys asserted a new theory that they never before raised in their initial notice of claim or their complaint: since the child's school had a "closed lunch" policy, the school had a "special duty" to protect the child and prevent the child from leaving the school during this time, and they failed to fulfill this responsibility.

While even a cursory reading of this decision makes clear that the Court was inclined to dismiss this lawsuit, the Court's language in rejecting this claim should be taken to heart:

"This theory is not contained in the plaintiff's notice of claim or complaint. Causes of action for which a notice of claim is required which are not listed in the plaintiff's original notice of claim may not be interposed."

Computer/Cell Phone User Beware: Your Records May Be Discoverable In A Car Accident Case

jmcooper@jmcooperlaw.com (Blog Author)23341 — Mon, 14 Dec 2009 08:00:00 EST

In Detralia v. Grant, a decision regarding a car accident case that was reported on the front page of today's New York Law Journal, an appellate court has upheld a trial court's ruling requiring one of the drivers to turn over records regarding his cell phone and computer use around the time of the accident.

Although the Court acknowledged that this ruling did conflict with the driver's privacy rights, the Court was compelled to order the disclosure of these records because the tow truck driver, who came upon the accident scene shortly after the incident, claimed in an affidavit that the driver's computer, which was bolted to a special desk immediately adjacent to the steering wheel, looked like it had just been used. Although the driver of this vehicle, which collided with the car in which the plaintiffs were passengers, denied using either his computer or his cell phone, the Court held that "[The] conflicting evidence raised questions as to whether [the driver] used any technological devices while driving, rendering the records relevant to the question of his negligence."

What Is A School's Responsibility To Assure The Safety of Its Teachers? Not Much, Court Says.

jmcooper@jmcooperlaw.com (Blog Author)23241 — Fri, 11 Dec 2009 08:00:00 EST

In Dinardo v. City of New York, a decision that was handed down on December 1, New York's highest Court dismissed the lawsuit of a New York City school teacher who sued for the serious personal injuries she sustained when she was assaulted by a student. In this particular case, the Court held that despite the fact that this student had previously exhibited aggressive tendencies, and the teacher was asked to"hang in there" because something was being done to have [the student] placed or removed, the Appellate Court held that there was no rational basis upon which the jury could have concluded that the teacher justifiably relied on the school to assure her safety, or in legal terms, that a "special relationship" existed that would warrant imposing liability on the school. (For more on this topic, see "When Can A Municipality Be Held Liable For Failing To Protect You?")

In the words of the Court of Appeals, “[T]he vaguely worded statements by the plaintiff's supervisor and principal that was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance."

Is it just me, or do you also find this decision very disturbing? It seems that this decision is fundamentally at odds with what transpires in the real world.

I wholeheartedly agree with the dissent's point in this case - that it is plainly wrong to penalize a teacher who went above and beyond the call of duty to continue teaching under very trying circumstances.

Applying Statutory Exception, Court Reinstates Construction Worker's Labor Law/Injury Claim

jmcooper@jmcooperlaw.com (Blog Author)22574 — Sun, 29 Nov 2009 08:00:00 EST

Although slip and fall cases are governed by general negligence principles, such as whether the defendant caused and/or created the defective condition, or had actual or constructive notice of the condition (i.e., they knew or should have known about the defective condition, yet failed to remedy it in a timely fashion), there is an important exception to this rule: when the conditions are governed by statute.

One such example came to the fore in a decision that was handed down by New York's Appellate Division, Second Department (which covers appeals from several courts, including Queens, Brooklyn, Nassau, Suffolk and Westchester Counties). In Fassett v. Wegmans Food Markets, Inc., the plaintiff sustained personal injuries when he slipped and fell on a muddy step while getting out of his backhoe. Apparently, the step was also slippery because the step's anti-skid treading was missing. In his personal injury lawsuit, the plaintiff claimed that the defendants were liable under Labor Law §241(6), which provides that defendants may be held responsible for injuries that result from the violation of specific safety statutes (for more on this topic, please see "What A Plaintiff Must Prove To Win A Construction Site Accident Case"). In this particular case, the plaintiff claimed that the defendants had violated 12 NYCRR 23-1.7(d), which statesthat no employee shall be permitted "to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition" and requires the removal of any "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing."

In reversing the trial court's decision that had dismissed plaintiff's claim, the appellate court held that since Labor Law §241(6) was enacted to assure the workers' safety, including their way to and from the work site, the statute was applicable to the entire construction site, including passageways and platforms, not only the specific area where the construction work is actually done.

Why A School Was Deemed Responsible For A Science Experiment That Went Awry

jmcooper@jmcooperlaw.com (Blog Author)22487 — Thu, 26 Nov 2009 08:00:00 EST

Recently, an upstate high school settled a personal injury lawsuit that was brought by one of its students, who sustained serious personal injuries, including second-degree burns to his arms, when a chemistry experiment that required the chemicals that the students were mixing caught fire.

The natural question that arises from this case is (or should be) this: why is the school responsible for this accident?

The answer to this question lies in negligence and its interplay with the doctrine of vicarious liability. As we've noted in our articles "How To Prove Your School Negligence Case" and "School Must Notify Parent of Threat To Child, Court Holds," during school hours, the school stands in the place of the child's parents, and therefore has an important duty to act reasonably protect the well-being of its students. But, you ask, in this case it seems like the teacher was negligent - not the school; so why should the school be held responsible for the teacher's negligence?

Because of vicarious liability. Under this doctrine (also known in legalese as "respondeat superior"), an employer is liable for its employees' negligent acts that are committed in the regular course of their employment. Interestingly (and although it is beyond the scope of this particular post), New York's courts have indicated that an employer can even be held liable for its employees' acts that are committed outside the scope of their employment if the employer was negligent in either opting to hire this employee in the first instance, or for keeping them on after the time that it became clear that they were unsuitable to remain an employee of the company.

Court Recognizes Important Exception To Owner's Liability For Construction Site Accident

jmcooper@jmcooperlaw.com (Blog Author)22482 — Thu, 26 Nov 2009 08:00:00 EST

As previously discussed in our articles "What A Plaintiff Must Prove To Win A Construction Site Accident Case" and "Construction Site Injuries And New York's Labor Laws," a property owner may be held strictly - and in some cases, absolutely - liable for construction site injuries.

In a decision that was handed down on November 13, however, an upstate New York appeals court had occasion to discuss an important exception to this general rule: the owner of a one or two-family dwelling. In discussing the underlying reason for the amendment that created 'Homeowner Exception,' New York's highest court stated as follows:

"[The Homeowner Exception was] intended by the Legislature to shield homeowners from the harsh consequences of strict liability under the provisions of the Labor Law [and] reflect[s] the legislative determination that the typical homeowner is no better situated than the hired worker to furnish appropriate safety devices and to procure suitable insurance protection."

In this particular case, the appeals court went further, and held that the Homeowner Exception also applied to a case where the plaintiff was injured while working on a vacant lot, but the plans indicated that they intended to build a one or two-family dwelling. Therefore, the appeals court upheld the dismissal of the plaintiff's case.

CPSC Announces Largest Defective Children's Crib Recall Ever

jmcooper@jmcooperlaw.com (Blog Author)22331 — Tue, 24 Nov 2009 08:00:00 EST

Yesterday, in response to over 100 incidents of problems with drop-side cribs - including two infants in New York who suffocated after becoming trapped in the side gate - the Consumer Product Safety Commission announced a voluntary recall of more than 2.1 million Stork Craft drop-side cribs.

At the risk of redundancy, here's a question that these crib manufacturers and retailers, as well as the CPSC should be compelled to answer: why did it take so many incidents before the recall was issued? (Please note, this is far from the first time we've written on the subject - see our June 14 article, "CPSC's Recall of (Yet Another) Defective Crib Raises Questions About Recall System in General").

In a public statement, the CPSC urged parents to “immediately stop using the recalled cribs, wait for the free repair kit, and do not attempt to fix the cribs without the kit.” According to the official defective product recall notice, nearly 150,000 of the cribs were sold under the Fisher-Price brand name.

In addition, the CPSC stated that the defective design allowed infants to become stuck in the gap between the crib mattress and the drop side of the crib. In conjunction with this defective product recall, ASTM International, a group that recommends voluntary product safety standards worldwide, recommended that fixed sides on cribs be required.

How Unfamiliarity With Your Auto Insurance Can Cost You - Big Time

jmcooper@jmcooperlaw.com (Blog Author)22291 — Mon, 23 Nov 2009 08:00:00 EST

Imagine, if you will, the disappointment of Beverly Bemiss, who owned a $100,000 automobile insurance policy, but later learned that she was unable to collect on any of it when she was seriously injured in a chain collision, even though the other cars that hit hers only carried minimal insurance.

The reason? Since she didn't force the insurers of the other vehicles to tender the full value of their respective insurance policies (or obtain her own insurer's written consent to settle her claims with the other vehicles' insurers), she forfeited her right to pursue a claim against her own auto insurer, which in insurance terminology, is called a Supplementary Uninsured/Underinsured Motorist (SUM/UM) claim. If this doesn't sound like a big deal to you, consider this: the plaintiff's seemingly "harmless" error cost her over $70,000.

The moral of the story is clear: before you settle any auto claim, make sure that you ascertain all of the coverage particulars - and requirements - for all of the vehicles involved in the accident.

CPSC's Mass Recall of Defectively Designed Maclaren Strollers Highlights Problems With Recall System

jmcooper@jmcooperlaw.com (Blog Author)21477 — Mon, 09 Nov 2009 08:00:00 EST

As noted in our description of the AP's video news report on the mass recall of over 1 million defectively designed Maclaren strollers, the recall was apparently prompted by 12 reported incidents of children whose fingers were partially amputated when they became caught in the strollers' side hinges.

This begs two important questions:

(1) Why did it take so many incidents where children were quite seriously injured before the conclusion was reached that these products needed to be recalled ? (Unfortunately, this is NOT the first time we are asking this question); and,

(2) Given the severity of this safety defect, why didn't Maclaren's testing of these strollers reveal this problem before the products ever made it to the marketplace?

I think it is safe to assume that the answers to these questions will only be learned when Maclaren is sued for one of these children's injuries. And I have no doubt that those lawsuits are coming.

NY Court Upholds Commercial Insurer's Disclaimer of Coverage for Construction Accident Claim

jmcooper@jmcooperlaw.com (Blog Author)21112 — Tue, 03 Nov 2009 08:00:00 EST

In a decision that was handed down on October 20, New York's Appellate Division, Second Department (which covers Kings, Queens, Nassau, Suffolk and Westchester Counties) re-affirmed an important, but largely unknown, rule: unlike auto policies, which are heavily regulated by both statute and the Insurance Regulations, the insurance companies writing commercial liability policies are free to limit their own liability by excluding from coverage any claims arising out of a personal injury or construction site accident that occurs to the contractor or owner's employee.

While I find persuasive the logic behind this particular decision ("[W]hen statutes and Insurance Department regulations are silent, [courts] are reluctant to inhibit freedom of contract by finding insurance policy clauses violative of public policy"), that in turn begs the question: why should and/or did the legislature go to such lengths to distinguish - and regulate - auto and truck insurance as well as fire insurance coverage?

I believe that the answer lies in recognizing that cars and trucks are dangerous instrumentalities, and the legislature wanted to ensure that there would be financially responsible entities available to compensate people who were legitimately and seriously injured through someone else's negligence. In a commercial context on the other hand, Workers' Compensation insurance is available to compensate the injured employee, rendering moot the need for additional regulations to forbid commercial liability insurers from excluding coverage for such incidents.

That being said, and at the risk of redundancy, you should never accept an insurer's disclaimer of coverage at face value; since the specific steps an insurer must take to properly disclaim coverage are highly regulated and technical, you have little to lose by challenging the disclaimer. Conversely, if you don't, you are guaranteed to lose out on your chance to have your insurance cover your losses.

Can A Construction Worker Recover For His Injuries Even If The Accident Is Largely His Own Fault?

jmcooper@jmcooperlaw.com (Blog Author)20789 — Thu, 29 Oct 2009 08:00:00 EST

In a decision that was recently published in the New York Law Journal, Justice Martin Schneier of Kings County (Brooklyn) held that even though the plaintiff construction worker was at least partially to blame for his own accident, he was nevertheless entitled to judgment in his favor as a matter of law on his Labor Law §240(1) violation claim. (For additional information on this topic, see "How to Prove a Construction Site Accident Case").

In Cortes v. McGuiness Condos, LLC, the plaintiff construction worker ignored his bosses' instructions to leave the area where the accident ulimately occurred while bricks were being hoisted, and he was later hurt when one of the bricks that was being hoisted slipped from its tong, hitting the plaintiff in the head.

Admittedly, at first blush it seems rather strange that the plaintiff's claim would survive a motion to dismiss, let alone that a judge would automatically find in his favor. In that regard, the Court's analysis is informative:

Citing a 2003 opinion from New York's highest court (Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y. 3d 280 [2003]), Justice Schneier pointed out that "it is conceptually impossible" for the defendants to be guilty of a worksite safety violation (which serves as a proximate cause for a plaintiff's injury), and for the plaintiff's own conduct to be deemed the sole cause for the accident. And once the plaintiff establishes that his injury was caused, at least in part, by virtue of the defendant's violation of a specific safety statute, the contractor and owner will be held liable ("absolute liability"), without regard for the plaintiff's role in the accident. (Bland v. Manocherian, 66 N.Y.2d 452, 459 [1985]; Moniuszko v. Chatham Green, Inc., 24 A.D. 3d 638, 639 [2d Dept 2005]).

But Justice Schneier's rejection of the defendants' claim that the plaintiff's claim should be barred on the grounds that he was a 'recacitrant worker' who, by dint of ignoring his employer's instructions, effectively refused to use the safety devices that were made available, is even more telling. Quoting a different opinion from the Court of Appeals, the Court stated as follows:

"an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense."

From this decision, it is clear that one should never assume that a worksite injury case either has - or lacks - merit until they have consulted with an attorney that is knowledgeable about New York's Labor Laws.

School Must Notify Parent of Threat to Child, Court Holds

jmcooper@jmcooperlaw.com (Blog Author)20058 — Thu, 15 Oct 2009 08:00:00 EST

Although I don’t generally report my firm’s results in this space, I felt that this recent decision warranted special mention. After a fight broke out in school between another middle school student in the Bronx and my client, which culminated with both students receiving an in-school suspension, the second student threatened my client, indicating that as far as he was concerned, “this wasn’t over.” Despite the school’s knowledge of the threat to my client, as well as the other student’s past propensity for violence, however, they did not notify either student’s parents of the incident, nor of the impending threat of continued, or escalating, violence. (For more information on this topic, see "How To Prove Your School Negligence Case").

Unfortunately, this is precisely what happened. Two days later, the other student had some friends “jump” my client on the way to school; they held my client down while the other student repeatedly beat my client, ultimately fracturing his jaw in two places, which later required surgical correction.

The municipality, which ran the middle school, moved to dismiss the lawsuit on the grounds that they were not responsible, as the incident occurred off of school grounds. In response, I cross-moved for judgment on liability, arguing that “if the Court were to accept defendants’ argument, a school with tacit, actual knowledge of an impending danger that became manifest during school against one of its own students remains free to bury its head in the sand, and deliberately cast a blind eye to the clear and present danger facing that child as well as its duty to protect that child as its de facto parent.” Fortunately, the Court agreed with our position. We won.

Court Forces Insurer To Defend Construction Company in Personal Injury Lawsuit

jmcooper@jmcooperlaw.com (Blog Author)20050 — Thu, 15 Oct 2009 08:00:00 EST

Here's yet another example of why it often pays to fight an insurance company's disclaimer of coverage.

In a decision that was handed down last week, New York's Appellate Division, Second Department (which oversees Brooklyn, Queens, Nassau, Suffolk, Westchester and Richmond Counties) held that Burlington Insurance Company, which issued a commercial general liability insurance policy to Guma Construction Company, was obligated to defend Guma in a personal injury action where it is claimed that they had caused this claimant's injury through their negligent construction, alerations, demolition and repair work. More specifically, the plaintiff alleged that Guma had improperly removed piping, and negligently used torches in course of its work, which proximately caused the plaintiff's injuries.

Since the insurance policy also contained an endorsement which limited the coverage to claims that arose out of "Garbage, Ash or Refuse Collecting" (the areas of work which Guma had written on their application for insurance), Burlington disclaimed coverage on the grounds that this particular Brooklyn-based personal injury lawsuit did not fall within the ambit of coverage afforded by the policy.

Importantly, however, the Appellate Court affirmed the lower court's finding that Burlington was obligated to defend its insured, Guma, in the underlying accident case because the plaintiff's claims "suggested a reasonable possibility of coverage, and that Burlington consequently had a duty to defend it."

Although it remains distinctly possible, and even likely, that Burlington may not be obligated to indemnify Guma against any adverse jury verdict, this decision in Guma's favor is still important because they will not have to pay the legal costs associated with defending the personal injury action.

In New York City, Who Is Liable For A Defective Curb?

jmcooper@jmcooperlaw.com (Blog Author)19902 — Mon, 12 Oct 2009 08:00:00 EST

Much ink has been spent on the amendment to the law in 2003, which transferred liabiilty for most defective sidewalks from New York City to the owner of the adjacent property. (For more on this topic, please read "Why Defective Sidewalk Cases May Be More Difficult Than You Would Think.") But a recent decision from New York's Appellate Division, First Department, which governs Manhattan and the Bronx, sheds some light on a narrow, but important category of this law: liability for defective sidewalk curbs.

In Garris v. City of New York, the plaintiff fell when she tripped over a gap that was present in between the concrete and metal parts of a sidewalk curb. In dismissing the case against the owners of the property adjacent to the defective curb, the appellate court noted that New York City's Administrative Code specifically excludes the curb from the portions of sidewalk that these property owners would ordinarily be responsible to maintain. Although the appellate court did not expressly address this issue, Implicit in this decision is the Court's finding that the City of New York retains the responsibility to maintain properly sidewalk curbs.

Can A Bar Be Held Responsible For Serving Liquor To A Drunk?

jmcooper@jmcooperlaw.com (Blog Author)19158 — Tue, 29 Sep 2009 08:00:00 EST

IAlthough the merits of the underlying personal injury lawsuit are highly questionable, in a fascinating and important decision that was handed down last week, and published in today's New York Law Journal, one of New York's Appellate courts reversed a Westchester County trial court's decision, and held that the driver of a car that hits a drunk can in turn seek contribution from the bar that served the plaintiff too much alcohol, in violation of New York's Dram Shop Act, to compel the bar to pay their fair share of the blame for the auto accident.

In this case, O'Gara v. Alacci, the driver of a car knocked down the plaintiff, who had wandered into the middle of a parkway after leaving a bar. The plaintiff sued to recover damages for her personal injuries, and contended that the driver of the car handled his car negligently, and therefore bore some resposibility for the accident. The defendant driver, in turn, sued the bar that served alcohol to the plaintiff, asserting that the bar was also somewhat responsible for the accident, because they served alcohol to the plaintiff even after she was obviously drunk.

New York's Dram Shop Act states that anyone who has been injured, whether personally, or even monetarily, due to the intoxication state of another is entitled to recover in contribution from the one who unlawfully caused or added to the intoxication, i.e., after the person was already clearly intoxicated.

In issuing this ruling, the Appellate court rejected the trial court's holding that the bar's duty to abstain from serving alcohol to an already-drunk person runs only to that person; instead, the Appellate court held that this duty also runs to the general public, including the driver of the car that was involved in this pedestrian knockdown.

CDC Announces Child Passenger Safety Week

jmcooper@jmcooperlaw.com (Blog Author)18704 — Mon, 21 Sep 2009 08:00:00 EST

If you ever thought that child safety seats were an unnecessary inconvenience, consider the following statistics that were published as part of the CDC and NHTSA's National Child Passenger Safety Week which just concluded on Friday, September 18:

Last year, an average of four children under the age of 14 were killed in auto accidents per day;
Studies have found that children's car seats reduce the risk of death in a car crash by over 50%, as compared to children who only used standard seat belts;
In 2007, nearly 400 children's lives were saved by the use of child safety seats and devices.

Granted, as a father of 6 small children, I find these seats and devices terribly annoying. But these statistics simply cannot be ignored.

Frivolous Lawsuit: Injured Skydiver Sues In Negligence

jmcooper@jmcooperlaw.com (Blog Author)17317 — Sun, 23 Aug 2009 08:00:00 EST

Sometimes the courts get it right - and for the right reason.

In Nutley v. Skydive the Ranch, the plaintiff suffered personal injuries when he was forced to rely on his secondary chute rather than on his primary parachute which had failed. In their motion to dismiss the complaint, the Skydive ranch pointed out to the Court that before he embarked on the skydive, the plaintiff had signed an agreement in which he expressly waived his right to sue for the ranch's negligence.

But that's not why the appellate court dismissed the case: under New York law, any contract or agreement between the owner or operator of a facility and a paying customer stating that the owner may not be held liable for its negligence is void and unenforceable (see NY General Obligations Law 5-326). Instead, the appellate court noted that since the plaintiff's claimed injury resulted from a risk that was open and obvious, and inherently part of, the activity of skydiving, the plaintiff voluntarily assumed this risk, and therefore the defendant Skydive ranch could not be held liable for his injuries.

Construction Site Accidents: Why Contractors Should Be Held Strictly, Or Even Absolutely, Liable

jmcooper@jmcooperlaw.com (Blog Author)17310 — Sat, 22 Aug 2009 08:00:00 EST

At first glance, it seems unfair that contractors and building owners can be held liable - almost automatically - if a worker is injured in an elevation-related fall (and in fact, I believe that is why the number of successful construction accident cases is dwindling). But this past Friday, a construction site accident occurred in the Park Slope area of Brooklyn where the scaffolding upon which a job supervisor was standing in suddenly gave way, as a result of which he fell to his wrongful death, and that, unfortunately, issues a stark reminder why New York's Labor Laws governing construction site safety are written the way they are: by holding accountable these parties, who have far greater financial ability to assure job site safety than many of these workers (many of whom are economically disadvantaged, and may be unable to afford the necessary safety equipment), it is hoped that far fewer of these incidents will occur.

Misconceptions About the Consequences of Destroying (or Even Losing) Evidence

jmcooper@jmcooperlaw.com (Blog Author)17124 — Wed, 19 Aug 2009 08:00:00 EST

From the apparently cavalier attitude, by virtue of their utter lack of response, to Apple's claim that they have deliberately destroyed evidence that is critical to Apple's claims for copyright infringement, unfair competition and breach of contract, Psystar seems to believe, or at least would like to give the impression, that Apple's assertion is inconsequential. Here's why they may be wrong - very wrong.

Misconception #1 - If I Destroy Evidence That The Other Side Needs For Their Case, It's Their Problem, Not Mine - This notion is patently false. As noted in "The Penalties For Destroying or Losing Critical Evidence," the Court is obliged to assure that your loss of the evidence does not unfairly prejudice the other side's ability to prosecute its claim or defense.
Misconception #2 - If I Merely Lost the Evidence, Rather Than Deliberately Destroyed It, The Court Will Not Sanction Me - Though this used to be the rule in New York, it hasn't been true for over 10 years. Since 1997, New York's courts have increasingly held that where the critical piece of evidence has been retained by a party - even just in anticipation of litigation, and that piece of evidence is negligently lost or destroyed, the responsible party's claims or defenses may be dismissed.

In short, don't be fooled into thinking that the loss of evidence is without consequences.

An Unsung Provision For Consumer Product Safety That Has Some Promise

jmcooper@jmcooperlaw.com (Blog Author)16888 — Thu, 13 Aug 2009 08:00:00 EST

Earlier today, the U.S. Consumer Products Safety Commission issued a press release reminding everyone in the chain of distribution of children's products, from manufacturers and distributors to resellers and retailers that many of the provisions of the Consumer Product Safety Improvement Act become effective tomorrow.

Interestingly, one of the provisions of the Act that has received the least attention (most of the Act is focused on the lead level in children's toys) may have the most promise in terms of its likelihood to improve product safety: new labeling requirements.

Under the Act, manufacturers are now required (unless manifestly impractical) to put permanent tracking labels on any consumer product that is targeted for use by children aged 12 and younger. These tracking labels must identify the name of the manufacturer and its location, the date the product was manufactured, and must specify information from the manufacturing process itself, including the lot or batch number.

The immediate and practical benefits to this provision are twofold:

At the first hint that a product may be defectively designed, and a recall may be needed, it will be far easier to identify which specific products need to be recalled, and concurrently, to track where the recalled products were sold. As a natural consequence, it should make product recall efforts far simpler and more effective.
It will help claimants who have been injured by a defective product to identify with greater specificity the potentially responsible parties, and thereby reduce the litigation costs borne by parties with no real connection to the products at issue.

4 Steps to Protect Your Claim Following a Hit and Run Accident

jmcooper@jmcooperlaw.com (Blog Author)16741 — Tue, 11 Aug 2009 08:00:00 EST

Last week, the New York Times reported about a spate of hit-and-run auto accidents that occurred across New York City: two occurred in Queens, with one being in Jackson Heights along the Grand Central Parkway and the second occuring in Corona adjacent to a street fair along Junction Boulevard, and a third took place in Inwood. In all, two pedestrians were killed, and more than a dozen others were injured.

An unfortunate corollary to these tragic stories is that the families of those who suffer serious personal injuries or even wrongful death often fail to recoup funds that would otherwise be available to cover medical or funeral expenses for their loved ones, simply because they don't know with whom, where or by when they must file a claim, or how to avoid mistakes that will reduce the value of their claim. With that in mind, here's a list of the initial steps that should be taken as soon as possible after the accident:

Identify All Witnesses to the Occurrence - since the insurance companies may well dispute that their insured was involved in the accident (or, in a more minor accident, that an accident with another vehicle even occurred), independent verification from a disinterested third party is very powerful evidence.
Obtain Photographs of the Damage - likewise, photographs depicting damage to your vehicle or the accident scene will solidify your accident claim.
Identify All Policies of Insurance That Are Potentially Applicable to the Claim - since New York's Motor Vehicle Accident Indemnification Corporation is the insurer of last resort, and also only affords minimal coverage, you must identify any and all other sources of recovery for the accident. Naturally, the first step would be, if possible, to ascertain whether anyone was able to take down the license plate number of the hit and run vehicle, and afterward identify whether anyone else involved in the accident had their own insurance policies which could be pursued.
Notify All Insurers About the Claim or Potential Claim - although it should be relatively self-evident, unless you notify these insurers about the claim, they won't pay the claim.

For additional information about the general steps that should be taken to protect the viabilty of an accident claim, please see "The 10 Mistakes That Will Reduce the Value of Your Claim."

Top Ten Recalled Children's Products Announced by CPSC

jmcooper@jmcooperlaw.com (Blog Author)16534 — Thu, 06 Aug 2009 08:00:00 EST

Earlier today, in conjunction with the launch of its campaign to prevent re-sellers of consumer products from introducing into the stream of commerce various products that were the subject of safety recalls (an earlier study concluded that almost 75% of re-sellers failed to comply with the Federal law prohibiting the re-sale of recalled consumer products) the U.S. Consumer Products Safety Commission released its Top Ten List of Recalled Children's Products.

Interestingly, this announcement does not clarify why these particular products made the "Top Ten" list. While some may be inclined to think that this is a cheap marketing gimmick, or a vain attempt at humor (ala David Letterman), my reading of the description of incidents that led to the recall of these dangerous products convinces me that this is not the case. The distinguishing characteristic of these products? Unlike many other consumer safety recalls, the design defects in these particular products (mostly defective cribs) led to several wrongful deaths.

That said, I am still troubled by a few aspects of the CPSC's press release. One, if the stated goal of the Top Ten List is to garner and focus the public's attention on the unique dangers presented by these particular children's products, then they should say so. And rather than just issue a simple press release, they should broadcast this list all over the news, and post videos on the internet that demonstrate the manifest dangers of these products. Second, if the government went to the trouble of conducting a study roughly ten years ago which assessed whether re-sellers of consumer products were compliant with Federal law barring the re-sale of recalled products, why wasn't a companion study done to assess what measures could be implemented to improve compliance. Wouldn't that have been more important than the first study?

Appeals Court Finds That Roofer Can Recover For Injuries Sustained in Fall From Balcony

jmcooper@jmcooperlaw.com (Blog Author)16186 — Fri, 31 Jul 2009 08:00:00 EST

In Yost v. Quartararo, a roofer fell to the pavement from a balcony when the balcony's railing gave way, causing him to sustain serious personal injuries. At the time of the accident, the plaintiff was attempting to secure a tarp to the building's roof. The plaintiff's attorneys contended that he was protected by the Labor Law 240(1) because the balcony's railing was the equivalent of a scaffolding, and was inadequate. (For a fuller explanation of laws pertaining to personal injuries sustained at a worksite or construction site, please see "Construction Accident Liability Under New York Law.")

Interestingly, the Appellate Court upheld the lower court's judgment in plaintiff's favor, but did so on grounds that weren't raised by either the plaintiff or defendant in the lower court. While the appeals court categorically rejected plaintiff's assertion, finding that the balcony could not be deemed a "scaffolding" under the statute, the court also found that the balcony was an elevated worksite, as a result of which the defendants were required to furnish the plaintiff with one or more the statutorily specified safety devices (which they clearly failed to do).

In light of the clarity and apparent logic of the Appellate Division's decision, I can't help but wonder why the plaintiff's attorneys didn't raise this argument to begin with.

Product Recall With An Unusual Twist - A Complete Lack of Assembly Instructions

jmcooper@jmcooperlaw.com (Blog Author)16142 — Thu, 30 Jul 2009 08:00:00 EST

In the near-daily bombardment of announcements of defective product recalls, it is hard for any one recall to really stand out, especially if it does not involve an egregious safety hazard. But, every once in a while, a relatively minor product recall can distinguish itself, if only because the circumstances underlying the recall are unusual, or simply off the beaten path.

Yesterday, the CPSC announced one such recall. And it was noteworthy in two respects: first, this recall has absolutely nothing to do with the actual design of the product - it had to do with the product's instructions. Second, and in the same vein, it wasn't simply a question that the instructions were inadequate or unclear (just imagine if that were the standard that companies employed to issue recalls); rather, they simply forgot to include a critical set of instructions regarding the swing seat's harness.

Consequently, this product recall is distinct from the garden variety recall because it touches upon a failure to warn claim rather than a defective design claim. For more information on the distinctions between these two different types of defective products claims, please see "Why There Are So Few Successful Defective Products Lawsuits."

The 5 Ways To Prove Your Defective Products Claim Under New York Law

jmcooper@jmcooperlaw.com (Blog Author)15969 — Tue, 28 Jul 2009 08:00:00 EST

Following up my earlier article "De-Bunking Some Myths About Defective Products Lawsuits," I thought it would be prudent to clarify what, in fact, are the general bases upon which legitimate defective products a/k/a products liability lawsuits may be brought.

In very broad terms, a product may be defective as the result of a manufacturing flaw, a defective design, or inadequate warnings or instructions. Applying these principles to practice, products liability cases are generally brought under one or more of the following five (5) theories, which in legal terms, are called “causes of action”:

>Defective manufacture;

>Defective design;

>Failure to warn;

>Negligence; and,

>Breach of warranty.

Each of these causes of action is distinct and has its own particular rules, and the plaintiff's burden of proof on each such claim differs. While none of these theories are mutually or inherently exclusive to each other, very often one or more of these causes of action tends to fall by the wayside. For example, a plaintiff's claim that the product that he used (and was injured by) was defectively designed is entirely consistent with his claim that the defendants acted negligently in the way that they designed the product. Conversely, if the documentary discovery and expert review reveal that this particular product was the "lemon" out of that whole line of products, and that it was this plaintiff's bad fortune to have purchased the "lemon," then his defective manufacturing claim will continue and his defective design claim will likely be dismissed.

As you may have guessed by now, the rules to products liability cases in New York are quite complex, and are a large reason why there are so few successful defective products lawsuits.

De-Bunking Some Myths About Defective Products Lawsuits Under NY Law

jmcooper@jmcooperlaw.com (Blog Author)15926 — Mon, 27 Jul 2009 08:00:00 EST

Over the last several years, I’ve been struck by the terrible misconceptions that the public has about products liability cases. Some of the better-known products cases involved recalls of children’s toys, cars, asbestos, leak-prone silicone breast implants and tobacco. With respect to many, if not all, of these examples, people tend to have very strong feelings and beliefs, whether out of concern for children’s safety, or because of the illness or death of a loved one secondary to cancer or asbestosis.

Myth #1: If Someone is Seriously Injured by a Product, He is Automatically Entitled to Recover Damages.

As a result, I have also found that people tend to believe that if they or a loved one has been seriously injured by a product, the product must inherently be defective, and the injured parties should automatically be entitled to recover damages for their injuries.This notion is pure fantasy.

Myth #2: Trial Lawyers Have Brought a Disproportionately High Share of Products Liability Suits Relative to the Number of Defective Products on the Market

Despite the nearly 220,000 toy-related injuries that required treatment at a hospital emergency room in 2007 (that does not even begin to account for injuries related to children’s nursery equipment, sports and recreational equipment, personal use items, household products, home furnishings or fixtures, nor does it account for presumably less serious injuries that did not result in hospitalization) only a small fraction of these incidents resulted in the filing of a products liability lawsuit. For more on these topics, please download our Free eBook on defective products and lawsuits, "Why There Are So Few Defective Produtcts Lawsuits."

Burn & Fire Hazard Caused By Defective Design of Chinese-Manufactured Gas Grill Leads To Massive Product Recall

jmcooper@jmcooperlaw.com (Blog Author)15789 — Fri, 24 Jul 2009 08:00:00 EST

As reported in our news section, earlier this week, the U.S. Consumer Products Safety Commission, in a joint announcement with its sister organization, Health Canada, announced that nearly 90,000 gas grills were recalled after they had collectively received a whopping 161 reports of fires, burn injuries, and other assorted personal injuries, including loss of hearing, due to the defective design of these Chinese-made grills. And these complaints were all logged in less than 3 years.

Apparently, the fire hazard with this particular product, the Blue Ember Gas Grill, is that the gas tank's hose is set too close to the firebox.

In analyzing this news story, two questions immediately come to mind - and its not the first time we've raised these issues (see "CPSC's Recall of (Yet Another) Defective Crib Raises Questions About Recall System in General"):

Why did it take so many reports of grill fires before this latest round of the recall became effective?; and,
Why didn't the first round of recalls of this product in 2008 solve this problem?

The fact that these questions need to be asked is certainly troubling.

Another Way To Curb Medical Malpractice/Negligence Lawsuits: Saying You're Sorry

jmcooper@jmcooperlaw.com (Blog Author)15590 — Tue, 21 Jul 2009 08:00:00 EST

Yesterday, msnbc published a fascinating story on the University of Michigan Health System, which, unlike nearly every other health care facility in the Country, has seen the number of medical malpractice claims (and concurrently, the amounts paid out on claims) against it cut in half over the last several years. This is no fluke. Their secret? When they make a mistake, they own up to it and apologize. In the words of their general counsel, they are practicing "basic common decency." As a corollary to this approach, this particular health care system actively tries to make fair offers to resolve meritorious cases early on, rather than allowing the cases to wind their way through the court system for years, and in the process, incurring higher defense costs. Not surprisingly, this tactic tends to lessen the patients' anger, and less likely to sue. Given the obvious logic and fantastic success of this program, it is apparent that this approach should be made a central component of any tort reform package, don't you think?

How Product Safety Recalls Can Help Prove A Defective Products Case

jmcooper@jmcooperlaw.com (Blog Author)15532 — Sun, 19 Jul 2009 08:00:00 EST

Last Friday, the Consumer Products Safety Commission announced that New York-based Haier America had agreed to pay over $500,000 in fines due to their failure to promptly convey to the Government complaints it had received indicating that their fans had a design defect that posed a fire hazard. Predictably, by agreeing to this settlement with the CPSC, Haier continues to deny any wrongdoing.

The significance of this story lies in why Haier was fined. Apparently, Haier had received numerous complaints (more than 10) over a 5 month period, during which period of time Haier conducted its own testing in an attempt to ascertain whether their fans had a defect in design which was causing these electrical fires to occur. In derogation of federal law anyone in the chain of distribution of a product to advise the CPSC within 24 hours after the company has a credible reason to suspect that its product has a defect that could render the product hazardous, dangerous or unsafe), however, they did not report these incidents to the CPSC until after the CPSC contacted them about these incidents. Big mistake.

Although, as noted in "Why There Are So Few Successful Defective Products Lawsuits," a product recall in and of itself will not, in and of itself, prove that the product was defective, and if the recall was issued after your particular accident, it may well be deemed inadmissible at trial, the fact that a recall was issued remains important, because the underlying reasons for the recall, such as prior incidents, may help demonstrate that the manufacturer, distributor or retailer either knew, or had reason to know, that the product was defective before your particular incident, and that may actually help you prove that they were negligent.

Why Speculation Is No Substitute For Qualifications When It Comes to Selecting An Expert

jmcooper@jmcooperlaw.com (Blog Author)15447 — Thu, 16 Jul 2009 08:00:00 EST

In a decision that was handed down on July 7, New York's Appellate Division, First Department (which, as set forth previously, oversees the courts in the Bronx and Manhattan) issued a stark reminder, particularly to those attorneys who practice in the personal injury arena, that before someone's "expert" opinion will be given any deference, it must be shown that this individual has the pertinent training, certifications and familiarity with the relevant laws, rules and regulations in that field.

In this case, Schechter v. 3320 Holding, LLC, the plaintiff sustained serious personal injuries when he opened an elevator door and stepped into an empty elevator shaft. In opposing plaintiff's arguments that the defendant building owner and elevator maintenance company should be deemed automatically liable for this elevator accident, the defendants relied on the testimony of an elevator maintenance employee, who opined that the interlock for the cab door had malfunctioned because both excess mop water and urine had gotten into the interlock, and caused it to stop working. In reversing the lower court's order, the appellate court rejected this argument out of hand, holding that the defendants' employee could not be considered an expert regarding elevator maintenance because he had no formal training or education regarding elevators, and was unfamiliar with the relevant codes and regulations. Although there was a dissenting judge to this opinion, I think the courts should take a more active role in assuring that the parties' experts are indeed appropriately qualified before accepting their opinion or giving it any deference.

Sometimes The Best Case Is One That Isn't A Case

jmcooper@jmcooperlaw.com (Blog Author)15388 — Wed, 15 Jul 2009 08:00:00 EST

Late last week, I received a call from a colleague of mine who wanted to refer a potential defective products case to my office. He indicated that a woman had suffered severe injuries to her hand, which required corrective surgery, because the lawnmower she was using had malfunctioned, and that the defective design of the lawnmower was likely to blame. Naturally, given the significance of the injuries involved, I was intrigued.

Fast forward a few days later, and I finally speak with this potential client. After a few pleasantries were exchanged, she stated, "I really don't think there's a case here, and I don't want to waste your time. Although I could certainly use the money, there was nothing wrong with the lawnmower. I just made a stupid mistake." She then proceeded to set forth in detail how the accident happened, and why she accepted full responsibility for her accident.

So how is this a positive outcome you ask? Simple. This woman had enough self-respect, and enough respect for my time and money that she didn't want me to invest them in her case when she knew that she was squarely at fault for her own personal injuries. And I found this out within a few minutes rather than thousands of dollars and a year or two later. Even better, I think I've made a new friend, who may refer other, more righteous cases my way down the line.

Appeals Court Reinstates Jury's $2 Million Award to Victim of Pedestrian Knockdown

jmcooper@jmcooperlaw.com (Blog Author)15250 — Mon, 13 Jul 2009 08:00:00 EST

In an unusual move, an appeals court reinstated a jury's award which had been reduced from $2 million to $600,000, to a pedestrian who was knocked down by a passing truck, causing him to sustain severe personal injuries, including traumatic brain injuries and several fractures that left him in a coma for over one month.

As anyone who has experience selecting juries for trial will tell you, what is not unusual or suprising is that this aspect of the story - the reinstatement of the 7-figure verdict made the news. Nor, for that matter, would it have surprised anyone had the news reported on the jury's verdict; what would have been surprising was if the news had covered the judge's reduction of the award by nearly 2/3 - a fact of trial life that often confronts personal injury lawyers, but rarely - if ever - makes the headlines.

NY Appeals Court Whittles Down Claims in Construction Site Accident Lawsuit

jmcooper@jmcooperlaw.com (Blog Author)15070 — Thu, 09 Jul 2009 08:00:00 EST

Following the trend articulated in "Construction Site Accidents: Why The Number of Successful Cases Is Dwindling," a majority opinion by New York's Appellate Division, First Department (which handles appeals from the Manhattan and Bronx Counties) recently dismissed the lion's share of a plaintiff's personal injury claims that resulted from a worksite accident. (The dissenting justices felt that the case should have been dismissed in its entirety.)

In this particular case, the plaintiff was injured when the unsecured plywood ramp upon which he was wheeling construction debris down a 1-1/2 foot height differential from the sidewalk curb to the street collapsed beneath him. The plaintiff sued both the construction site's general contractor and owner (for a general discussion about the potentially liable parties for a worksite accident, and the theories pursuant to which they can be sued, please see our article, "Construction Accident Liability Under New York Law") under common law (i.e., standard, non-statutory) negligence, as well as the statutory protections afforded under §§240(1) and 241(6) of the Labor Law.

In dismissing most of the plaintiff's claims, the appellate court reiterated the rule that in order to avail oneself of the statutory provisions and protections of the Labor Law, the plaintiff must affirmatively prove that the defendants violated specific safety rules that were directly applicable to the accident. And since the Industrial Code provisions cited by plaintiff were not directly on point, these claims were ultimately dismissed.

Given the vocal dissent in this case (as well as the likely seriousness of the plaintiff's personal injuries), I would be very surprised if the defendants do not appeal this decision in the hopes of getting the Court of Appeals to dismiss the case in its entirety. There is another reason I would be surprised if they don't appeal: I've known the defendants' attorney for over 12 years, and he's not afraid to appeal a ruling he dislikes.

One Reason You Don't Want A Jury Trial: An Inconsistent Verdict

jmcooper@jmcooperlaw.com (Blog Author)14900 — Mon, 06 Jul 2009 08:00:00 EST

Recently, a Queens County jury awarded a woman of Chinese-American descent, who claimed that her Flushing, Queens cooperative board had discriminated against her, $225,000. While that verdict, in and of itself, isn't particularly blog-worthy, a closer reading of the jury's finding is: the jury awarded the plaintiff money damages even though they did not believe that the plaintiff had proved that the coop board had been guilty of racism.

Not surprisingly, the coop board has indicated that they intend to appeal this verdict.

This case serves as a useful reminder that a jury's verdict is often unpredictable, and may be internally inconsistent. Consequently, a jury's verdict may not give the parties to the lawsuit the finality that they might otherwise expect; it may only lead to further appeals (and legal bills).

Children's Inflatable Boats Recalled Due to Safety Hazard

jmcooper@jmcooperlaw.com (Blog Author)14850 — Mon, 06 Jul 2009 08:00:00 EST

On July 2, the Consumer Products Safety Commission, in conjunction with Aqua-Leisure Industries, recalled over 4 million children's inflatable boats and rafts, after they received over 30 complaints that the straps which secure the children's legs had a tendency to rip, causing the children to fall into the water. Although, thankfully, no drowning incidents have been reported due to this problem, it bears repeating that in terms of New York law governing defective products (or "products liability"), this is a classic example of a design defect. For additional information on what factors determine what a plaintiff must prove to succeed on a defective products claim, you can download the free eBook, "Why There Are So Few Successful Defective Products Lawsuits."

Waste Facility Liability For Toxins Resulting in Personal Injury or Wrongful Death

jmcooper@jmcooperlaw.com (Blog Author)14559 — Tue, 30 Jun 2009 08:00:00 EST

On June 29, the New York Times reported on a tragic story involving 3 men who were killed when they were overcome by toxic hydrogen sulfide fumes that emanated from a well they had been hired to vacuum out by a Queens-based recycling company located on Douglas Avenue in Jamaica, opposite the Long Island Railroad. According to a Fire Department spokesman, their investigation revealed that the hydrogen sulfide found in the well was more than twice the amount that is considered "imminently dangerous," and that it likely proved deadly to these 3 men in under 10 minutes. On the other hand, this spokesman conceded that the source or origin of this deadly gas was not presently known. This leads to an important, albeit uncomfortable question: can anyone be held liable for the wrongful death of these 3 men who were hired to clean out the well? If so, under which theories of law?

Although a comprehensive discussion of the answer to this question is well beyond the scope of a blog post (a more detailed discussion of some of these topics can be found in "Why There Are So Few Successful Defective Products Lawsuits") the most likely theories of recovery are the following, each of which presents its own unique challenges:

Negligence - under this theory, the plaintiffs will have to show that the defendants failed to keep their premises safe for all foreseeable visitors (which should not be difficult in this circumstance), and that they either knew or should have known that their premises had this particular hazard, but failed to remedy the problem in a timely fashion before the accident occurred (a far more daunting thing to prove).
Strict Liability - under this theory, the plaintiffs will need to prove that their injuries (or death) was caused by exposure to a dangerous toxin or chemical (again, not too difficult to prove in this case), and that this chemical came from particular defendants. The latter part of this burden of proof will likely be far more difficult, especially when pursuing other companies beyond the recycler at whose premises the toxic exposure occurred.

Finally, it bears mention that anyone defending such a case will likely contend that the claims are barred by the doctrine of assumption of the risk, i.e., that these people were hired to clean out this hole, and knew full well the risk that it might contain toxic fumes, yet proceeded.

In short, although you might be inclined to think that a personal injury or wrongful death lawsuit arising out of this incident would be a "slam dunk," you would be mistaken.

Jury Finds School Negligent After Teacher Stands By As Student Beaten Unconscious

jmcooper@jmcooperlaw.com (Blog Author)14171 — Tue, 23 Jun 2009 08:00:00 EST

In a personal injury case that concluded just last week, a jury awarded $285,000 to a 12 year-old student who was assaulted, and beaten unconscious by a fellow 13 year-old student while a teacher stood less than 5 feet away. Although the school issued a public statement claiming that they intend to appeal the jury's finding because they believe there was nothing that the school could have done to prevent the fight from occurring, the plaintiff's attorney noted that the jury's finding that the school was negligent and had acted unreasonably was solidly grounded because the fight took place just a few feet from a teacher, who did nothing to stop the fight - which continued for over 2 minutes - other than press a panic button. In my view, this case will be a close one, because while the school's position certainly has merit, the plaintiff will likely argue that although the school could not have prevented the start of the fight, they should have been able to prevent the continuation of the fight, which lasted for over 2 minutes, and that the child's injuries were primarily sustained in the middle of the assault, rather than at the beginning of the fight. More information on this topic can be found at "How To Prove Your School Negligence Case."

NY's Highest Court To Decide Novel Issues Regarding Construction Site Accident Cases

jmcooper@jmcooperlaw.com (Blog Author)14090 — Sun, 21 Jun 2009 08:00:00 EST

Anyone who's read my articles or blogs knows by now that I'm not a fan of those personal injury and accident attorneys who bring lawsuits that clearly lack a coherent theory of liability simply because their potential client has sustained very serious injuries, and they just see dollar signs (see, e.g., "Why Some Construction Site Accident Cases Should Never See The Inside Of A Courtroom").

But there is a flip side to that coin; I appreciate and admire attorneys who think outside the box, and creatively apply established precedents to new factual scenarios. One such example is in the case of Runner v. New York Stock Exchange, Inc. In this case, the plaintiff sustained serious personal injuries when he was pulled down a flight of stairs and into a pipe by a pulley system that his fellow construction workers and he had devised to bridge that flight of stairs. In order to appreciate the novelty of plaintiff's attorneys' argument in this case, some background is necessary.

At the risk of redundancy, construction site accidents are governed by New York's Labor Laws, which means that the workers are afforded statutory protection for the injuries that they sustain as the result of the worker's height-related risk (such as on a scaffolding), or from an object that fell from a height. In this particular case, the plaintiff's attorneys asserted that the plaintiff's injuries were caused directly by the effects of gravity, and therefore should be deemed an elevation-related risk that is covered by the statute. The Second Circuit Court of Appeals (New York's appellate branch of the Federal Courts) conceded that the application of New York's Labor Laws to these facts was indeed novel, and therefore, pursuant to their inherent power, sent this question over to the highest State Court in New York: the Court of Appeals on June 10.

Regardless of the Court's answer to this question, the plaintiff's attorneys should be lauded for their efforts. Job well done!

Zicam Cold Remedy Recall Highlights Difficulties in Pursuing Some Defective Products Claims

jmcooper@jmcooperlaw.com (Blog Author)13925 — Thu, 18 Jun 2009 08:00:00 EST

After receiving over 100 complaints from consumers that had suffered either diminished or complete loss of their sense of smell following use of Matrixx's Zicam cold products, the FDA sent a warning to Matrixx, who in turn voluntarily recalled these Zicam products. While you might be inclined to think that by issuing this recall Matrixx has effectively conceded that their product was and is defective, and actually caused these consumer's claimed injuries, a more careful reading of Matrixx's public statement behind the recall makes clear that they intend to vigorously defend the efficacy of their product, citing over 10 years of product research and millions of units sold to satisfied consumers as proof. As you should suspect, neither of these hurdles is easily overcome when trying to prove a defective products or negligence lawsuit.

In short, this is one major reason why there are so few successful defective products lawsuits.

CPSC's Recall of (Yet Another) Defective Crib Raises Questions About Recall System in General

jmcooper@jmcooperlaw.com (Blog Author)13663 — Sun, 14 Jun 2009 08:00:00 EST

On June 10, the Consumer Products Safety Commission, or CPSC, announced yet another recall of a children's crib after finding that a defect in the design of this crib, particularly the faillure of spring pins, caused the crib's drop side to become completely detached from the crib, thereby posing both a strangulation and fall hazard to infants.

While that seems fair enough, the question that both puzzles and frightens me is this: why did it take over 30 reports of the drop side of the crib failing before the recall was issued? Stated differently, considering the manifest danger posed by many children's products - and cribs in particular - why wasn't the (investigation concluded and) recall issued earlier?

Thankfully, from the statement issued by the CPSC regarding this particular product recall, it does not appear that they have received reports of anyone being seriously injured by this product. But given the numbers, it seems that this is in many respects due to good fortune rather than good practice.

Study Claims That Employee Theft Rises as Economy Worsens

jmcooper@jmcooperlaw.com (Blog Author)13659 — Sun, 14 Jun 2009 08:00:00 EST

I recently came across an interesting blog post entitled "Does Theft Go Up In Economic Downturn?" which cited a study discussing whether there is a documented, proven connection between the state of the overall economy and job market and the rate of theft and other dishonest or counterproductive acts (such as a breach of fiduciary duty) by company employees.

One interesting theory in the study was promulgated by researchers from DePaul University, who articulated an "Employee Risk Triangle" theory of employee theft. Basically, this theorry subscribes to the notion that when 3 factors work together - need, attidude and opportunity - the likelihood of employee dishonesty rises dramatically.

According to this theory, although the any of these factors could manifest before the others, one scenario where the 3 factors could intersect would be as follows: due to a slumping economy, a company is forced to lay off many workers, and reduce (as well as eliminate) managerial positions. The resulting uncertaintly about their job security causes many employees to start feeling apathathetic about their jobs [attitude]; concurrently, some of these employees' spouses lose their jobs, putting them under greater financial strain [need]; finally, due to the reduced supervisory oversight on the job and co-employees' own degree of distraction, co-workers may be more apt to look the other way or outright ignore others' unethical behavior [opportunity].

Leaving aside my questions about the scientific reliability of this study, it seems to me that from the small business owner's perspective, the study, and the blog post quoting it, suffer from two flawed assumptions: (1) that the majority of people will falter if their ethics are put to the test (see my earlier blog article "Employee Theft Insurance Policies and the Culture That Spawned Them"); and, (2) that unless you use pre-fabricated tests to screen prospective employees, you are all but guaranteed to hire people of dubious character (paradoxically, although the blog post cites the study for the proposition that employees' ethics can be compromised as circumstances change, the blog post is silent on the issue of ongoing screening of existing employees).

Nevertheless, I think the study serves as a useful reminder to adhere strictly to Dan Kennedy's maxim: hire slow, fire fast.

Why The Barring Of Personal Injury Claims Against Chrysler Should Matter To All Of Us

jmcooper@jmcooperlaw.com (Blog Author)13338 — Sun, 07 Jun 2009 08:00:00 EST

Following a recent story on CNN which reported that Chrysler's bankruptcy filing would mean that personal injury lawsuits against the auto manufacturer would now effectively be barred, the predictable response from tort reform advocates of "WHO CARES," was prominently displayed in the blog comments section of the report. My response to that is simple: you should. And here's why: even if you don't drive a Chrysler, someone else who's on the road with you just might. And if no one in the manufacturing or distribution chain of that vehicle has any incentive to make sure that their consumers are apprised of any defects in the vehicle, whether in its design or manufacture, guess who's being put at risk? That's right - not only the drivers of those vehicles, but everyone around them, including you and me. So before anyone's too quick to dismiss as inconsequential this corollary to Chrysler's bankruptcy filing, perhaps they should take a broader view of the broader impact on consumer safety, and consider the possible impact on them.

And They Wonder Why Their Defective Product Recalls Aren't Particularly Effective

jmcooper@jmcooperlaw.com (Blog Author)13302 — Fri, 05 Jun 2009 08:00:00 EST

Yesterday, the FDA, in conjunction with two private firms, presented a report on the findings of their research study at the FDAnews Medical Device Quality Congress. Interestingly, their research demonstrated that less than 10 percent of the more than 200 companies surveyed used any type of electronic database to record customer complaints or other product issues; in the same vein, the official recordkeeping at more than 80 percent of those companies was still maintained did so on paper, or the equivalent.

This study seems modeled after those discussed in our earlier articles, Food Manufacturers Group Publishes Proposals to Improve Defective Product Recalls and New Report Finds Government Recalls of Defective Products Ineffective, and reaches similar conclusions: in order to have any chance at improving consumer safety, defective product recalls must be brought into the new millenium, using modern technology. Unfortunately, it seems that the conclusions of this new FDA study break little to no new ground. Stated differently, tell us something we don't know that can actually help remove safety hazards from consumer's hands.

The Most Important Thing For Any Trial Witness To Remember

jmcooper@jmcooperlaw.com (Blog Author)13281 — Fri, 05 Jun 2009 08:00:00 EST

Sometimes those of us who litigate and try cases for a living, whether in the context of small business litigation, personal injury or defective products lawsuits, tend to get "tunnel vision," and fail to see the forest for the trees. That's why an otherwise unremarkable jury verdict out of the Federal Court in Brooklyn, New York is important: it is a potent reminder to trial lawyers everywhere to remain mindful of the credibility of your witnesses in evaluating the viability and value your case.

In this particular case, there was a stark factual discrepancy between the plaintiff, who alleged that he was pushed off the roof of a 3 story apartment building by a police officer that was chasing him, and the police officer's claim that the plaintiff was in the process of running away from the police when the plaintiff lost his grip on the roof's ledge.

The jury sided with the plaintiff, finding more credible the claim by plaintiff. I suspect that the reason they bought plaintiff's version of events is because he conceded that the police officer did not intend to push him off the roof; according to the plaintiff, the police officer merely intended to push him off of a short 2 foot high paparet wall. And by conceding that small point, or "giving a little," he got a lot: the jury awarded him $4.6 million in damages for his personal injuries, which were quite severe: a fractured spine which resulted in paralysis.

Building A Winning Case

jmcooper@jmcooperlaw.com (Blog Author)13181 — Wed, 03 Jun 2009 08:00:00 EST

I just came across an interesting blog post by one of my favorite bloggers, Seth Godin, entitled "Won By A Walk." In this post, he highlights how commentators on a recent New York Mets game, as is often the case in sporting events, attribute the outcome of the game to a relatively insignificant play - in this case a walk - when in truth, that play which ended the game was only made possible by that which preceded it, e.g., the runners who got on base before that fateful walk.

I think the same is true regarding lawsuits, whether they be in the small business context, defective products or personal injury; although trial lawyers often get the glory, the rewards you reap at the end of the case are often sown in the preparation and work that you did to get to that point. Otherwise, the "walk" could end up just getting you a runner on base rather than driving in the winning run.

How To Win Your Construction Site Accident Lawsuit

jmcooper@jmcooperlaw.com (Blog Author)12728 — Mon, 25 May 2009 08:00:00 EST

In light of a recent decision by New York's Court of Appeals (New York's highest court) dismissing yet another personal injury lawsuit brought by a worker that was injured by safety hazards while working on the job (see our blog article, New York Appellate Court Dismisses Another Construction Site Accident Case), I reduced to writing a list of the three categories of construction site accident cases, and the evidence that is needed to successfully prove each one of these different types of claims under the heading What a Plaintiff Must Prove to Win a Construction Site Accident Case.

As always, please let me know what you think; I appreciate the feedback!

Grating Collapse At Brooklyn Girls' School Leaves Several Students Injured

jmcooper@jmcooperlaw.com (Blog Author)12342 — Fri, 22 May 2009 08:00:00 EST

Earlier today, an upper school picture shoot went terribly awry when the grating covering a cellar window by Brooklyn private girls school Shaarei Torah collapsed, causing several girls to fall down a 15 foot shaft, and sustain personal injuries including possible fractures. Volunteer EMS organization Hatzolah, as well as NYPD and Fire Department immediately responded to the accident scene, which was located at the intersection of Ocean Parkway and Church Avenue, and took the injured students to several different local area hospitals including Methodist Hospital, Maimonides Medical Center and Lutheran Hospital.

Why Rushing to Sue For Your Personal Injuries May Be The Wrong Answer

jmcooper@jmcooperlaw.com (Blog Author)12272 — Wed, 20 May 2009 08:00:00 EST

In the May 20 edition of the New York Daily News, it was reported that one of Britney Spears's former bodyguards has sued her for personal injuries that he allegedly sustained due to her negligence. In reading the article's description of this man's background, I was amazed that my gut almost instinctively rejected the merits of this man's claims - even though very little detail about the actual claims is given. And you know what? I imagine that most people reading that article felt the same way.

So, you ask, what was so troubling about the man's past that it turned me, a Long Island, New York personal injury lawyer into a hardened skeptic? He is clearly a very litigious guy, with two other lawsuits that are still pending, and a third work injury-related claim that was resolved some time ago. While it is questionable to what degree an attorney would be permitted to introduce evidence of the other claims at trial, there is a serious risk that a jury will take this new claim - no matter how legitimate - with more than a few grains of salt.

In addition, if you sue over a relatively minor injury to one part of your body, and then subsequently injure that same part of your body more severly later on, you may have unwittingly provided an important defense to the latter claim: that your injury was caused by the first incident rather than the second one. To summarize: before rushing head-first into litigation, you should strongly consider whether this case is really worthwhile; if you don't, it could compromise a more meaningful claim down the road.

How a Brooklyn Subway Accident Victim Won $7 Million - Even Though He Was Largely At Fault For His Own Accident

jmcooper@jmcooperlaw.com (Blog Author)12215 — Tue, 19 May 2009 08:00:00 EST

Recently, a Brooklyn jury awarded in excess of $7 million to a man who sustained serious personal injuries, including the loss of both one eye and a leg when he fell to the subway tracks, and was then hit by a passing New York City Transit Authority subway train. But that's not the surprising part. It's the jury's apportionment of fault for the accident that is puzzling.

In weighing the parties' relative degree of fault for the subway accident, the jury held the Transit Authority 70% responsible, notwithstanding the fact that the plaintiff was heavily intoxicated on alcohol and narcotics at the time of occurrence. While New York's courts have long held that the motorman of a subway train can be held liable in negligence for failing to avoid an accident provided that he had enough time and distance to do so, I am at a loss to understand how a man who found himself on the train tracks only because of his self-inflicted methadone and alcohol-induced haze can only be 30% responsible for his accident. Perhaps I'm alone in my feelings on this; but I highly doubt it.

Food Manufacturers Group Publishes Proposals to Improve Defective Product Recalls

jmcooper@jmcooperlaw.com (Blog Author)12043 — Fri, 15 May 2009 08:00:00 EST

In the wake of numerous defective product recalls, particularly regarding defective food products such as salmonella-tained peanut butter and pistachio nuts that were unprecedented in their scope or magnitude, the Grocery Manufacturers Association has published its proposals to improve the efficiency and efficacy of defective product recalls under the title Prevention, Partnership and Planning: Supply Chain Initiatives to Improve Food Safety.

This is not their first initiative; it is their third initiative since 1997, and their second this year. Unfortunately, that begs the question: does this new initiative mean that they are to be lauded for being responsive, or does it mean that their proposals and initiatives either have been, or are, inadequate, ineffective and untimely?

A brief review of the GMA's proposals indicates that they are focused in 3 primary areas:

Bringing Product Recalls Into the 21st Century: The Food Marketing Institute (FMI) and GS1US have jointly created a centralized internet-based product recall database in order to help assure that defective product recall information is more easily shared across the chain of distribution for these recalled products, from the manufacturers and distributors, all the way down to retailers. In this fashion, it is hoped that hazardous or defective products can be taken off the store shelves, and removed from the marketplace more quickly and efficiently.
Using Accredited Third Parties to Audit Food Safety: The report urges the adoption of universal food safety criteria that will be put together by a recognized entity, such as the American National Standards Institute (ANSI), to reduce the occurrence and risk of tainted food reaching consumers.
Updating the Good Manufacturing Practices (GMPs) for Food: The Food and Drug Administration is currently updating its regulations as to the proper handling, storage and preparation of food products.

While none of these proposals are particularly bad, my concern is that they share an important common denominator: each proposal passes the buck onto someone else, whether the FMI, third-party auditors or the FDA. Moreover, these proposals would not appear to have any real chance of success in assuring compliance by smaller downstream retailers who are neither memebers of the GMA, nor technologically adept. And I suspect that a significant amount, if not the majority, of retailers fall into this category. Unfortunately, I think these proposals are doomed to fail before they leave the starting gate, and fall far short of the hope I had expressed in New Report Finds Government Recalls of Defective Products Ineffective.

New York Appellate Court Dismisses Another Construction Site Accident Case

jmcooper@jmcooperlaw.com (Blog Author)11904 — Tue, 12 May 2009 08:00:00 EST

On April 28, New York's Appellate Division, Second Department (whose jurisdiction includes Brooklyn, Queens, Staten Island, Nassau, Suffolk and Westchester Counties) issued yet another decision dismissing a construction site accident lawsuit. And in my view, like the case we discussed in Why Some Construction Site Accident Cases Should Never See the Inside of a Courtroom, this lawsuit really never should have been brought.

By way of background, it is important to remember that in order to recover damages for personal injuries under New York's Labor laws, a plaintiff must, generally speaking, prove that the accident was caused by an elevation-related risk (for more on this topic, please see our articles, Construction Site Injuries and New York's Labor Laws and Construction Site Accidents: Why the Number of Successful Cases Are Dwindling). In this case, however, the plantiff was standing on the second floor of a building, and was hurt when he had difficulty unloading drywall from a platform that was stationed outside the building's second floor window. In other words, the plaintiff himself was never subjected to any elevation-related risk, and the platform from which he was attempting to off-load the drywall was at the same level. Thus, applying common sense, the Appellate Division dismissed the action.

Crib Makers and CPSC Expand Recall of Defective and Hazardous Cribs - Again

jmcooper@jmcooperlaw.com (Blog Author)11764 — Fri, 08 May 2009 08:00:00 EST

Since last June, crib maker Jardine Enterprises and the CPSC have now expanded their initial recall of defective and dangerous baby cribs a second time, raising the total number of recalled cribs by this company to nearly 500,000, and adds to the 4.2 million cribs that have been recalled over the past two years. Lest you think that the recalls are for minor structural issues, the latest recall was issued in response to concerns that the cribs’ wooden slats and spindles could break, and in that process entrap and strangle infants – clearly a significant consumer safety issue.

Thankfully, it appears that these recalls have compelled the CPSC to finally recognize critical problems not only with crib safety but also with the consumer-product-recall system. As we’ve noted previously, since crib makers are not required to undertake significant steps to announce the recalls, the vast majority of consumers never hear about them; and even if the consumers do hear about the recalls, it appears that many of them don’t respond to the recalls because they assume that their particular crib is okay so long as they haven't experienced problems with it.

Let’s hope the CPSC can use this recall constructively, and come up with a solution that will help product recalls work.

Car and Driver Magazine's Six Critical Things That Every Driver Must Know

jmcooper@jmcooperlaw.com (Blog Author)11627 — Tue, 05 May 2009 08:00:00 EST

This informative - and amusing - article published by Car and Driver should be required reading for every teenager learning to drive (and isn't a bad refresher course for those of us who've been driving for longer than we care to admit).

The 10 Most Deadly Driving Mistakes That People Make

jmcooper@jmcooperlaw.com (Blog Author)11626 — Tue, 05 May 2009 08:00:00 EST

Click on the link to read a well-researched article that was published this morning at www.msn.com regarding the most common - and dangerous - mistakes that drivers make that can lead to serious car accidents that result in serious personal injuries or even death.

Bronx Man Dies in Tragic Elevator Accident

jmcooper@jmcooperlaw.com (Blog Author)11527 — Sun, 03 May 2009 08:00:00 EST

In a tragic incident that occurred on Friday, May 1, a blind 67 year-old man from Riverdale, in the Bronx section of New York, fell to his death when, after the door to his 10-floor building's elevator opened, he stepped into an empty elevator shaft. By that same afternoon, New York City's Department of Buildings concluded that the elevator accident occurred because the safety device on the elevator door had malfunctioned, allowing the door to open even though the elevator had not yet arrived.

In interviews with reporters, some of the building's tenants claimed that there had been ongoing elevator maintenance and repair work at the building for several weeks prior to this incident.Some building residents said the elevators had been worked on for weeks.

Not surprisingly, this was not the first problem with this particular elevator; however, it does not appear that this elevator ever experienced the same problem that was responsible for this accident beforehand. In an interview with the New York Times, elevator consultant Scott Hayes opined that the mechanical devices that are designed to assure that the elevator's outer door remains shut until the elevator has arrived can occasionally become defective due to wear and tear or inadequate, improper or negligent maintenance. For this reason, he recommended the obvious: that elevator passengers peer through the elevator door's window to assure that the elevator has arrived before opening the door and stepping into the shaft. He conceded, however, that this advice wouldn't prove effective in this case, where the person was legally blind.

For more information on building owners' and elevator repair company's liability for elevator accidents, see "Elevator Accidents and Injuries Under New York Law."

CPSC Recalls Defective Leg Curl Machine After Three People's Fingers Are Amputated

jmcooper@jmcooperlaw.com (Blog Author)11491 — Fri, 01 May 2009 08:00:00 EST

KXAN of Austin, Texas recently reported on the Consumer Products Safety Commission's issuance of a recall of this dangerous home gym equipment which poses a major safety hazard to users of the defective product, as there is a risk of suffering serious personal injuries, particularly amputated fingers.

Why Some Construction Site Accident Cases Should Never See the Inside of a Courtroom

jmcooper@jmcooperlaw.com (Blog Author)11446 — Wed, 29 Apr 2009 08:00:00 EST

In an opinion that was published on April 21, New York's Appellate Division, Second Department upheld a lower court's decision dismissing the personal injury lawsuit of a construction worker who was hurt when the tree stump he was leaning on to maintain his balance broke off, causing him to fall down a slope. While I, like anyone who's been litigating accident cases for a sufficient period of time, have lost some close cases, I find this particular case troubling because I don't see any legitimate reason why the defendants could be deemed liable for this construction site accident. Stated differently, and given the Appellate court's clear and convincing affirmance of the dismissal, I don't think this case should have been brought in the first instance.

As noted in my articles Construction Site Injuries and New York's Labor Laws and Construction Site Accidents: Why the Number of Successful Cases Are Dwindling, in order for a defendant to be held liable under the Labor Laws for a construction worker's personal injuries that were sustained while on the site, the injury must have resulted from an elevation-related risk or safety hazard. That certainly was not the case here. And the plaintiff could not demonstrate that the remaining defendant, Staten Island Railroad Transit Operating Authority (SIRTOA), a subset of the New York City Transit Authority, exercised any ownership or control over the area or tree stump where he fell, as a result of which the plaintiff's negligence claim fell by the wayside as well.

Given that the plaintiff's attorneys went to the time and expense of appealing the lower court's decision, I suspect that the plaintiff's injuries in this case were quite serious, and that they were therefore seduced by the prospect of a big fee. But if you can't conjure up a cogent theory of liability to make it stick, you still shouldn't bring the case.

Why Some "Silly" Defective Product Lawsuits May Not Be Frivolous After All

jmcooper@jmcooperlaw.com (Blog Author)11319 — Sun, 26 Apr 2009 08:00:00 EST

After a trial that recently took place in Brooklyn's federal court, a jury found that Black & Decker, which manufactured the lawnmower, was liable to the plaintiff, who lost his fingers in the cutting blades of one of its lawnmowers, because the lawnmower was defectively designed. The significance of this case lies in the second part of the jury's finding, however: although the jury held that the lawnmower was defectively made, in that the Black & Decker lawnmower's on/off switch was too readily turned on, which was a safety hazard, and further held that this defect was a significant factor in causing the plaintiff's personal injuries, they also held that by forgetting to unplug the mower before performing maintenance on the machine, the plaintiff was 90% responsible for his own accident. Consequently, despite finding that the plaintiff's loss of his fingers was worth $2 million, the plaintiff was only awarded $200,000.

So, why is case is blog-worthy? Because it provides one of the clearest demonstrations of how New York's comparative negligence doctrine works in a practical way. More importantly, I believe that this case shows the wisdom of some facets of our judicial system, in this case, the comparative negligence doctrine. Although some might be inclined to side with Black & Decker in this case, and might even go so far as to say that the plaintiff should never have brought this lawsuit, especially considering the high degree of culpability that the plaintiff bore for his own accident (I admit that I probably would have rejected this case had it come to my office for this very reason) I think that this attitude is wrong both on public policy grounds, as well as for this specific case and plaintiff. Simply put, had this case never been brought, Black & Decker would have had no incentive to make their lawnmower safer for consumers by making it more difficult to accidentally engage the power switch, even though it is apparently a relatively simple modification. And without this case, the plaintiff would have been denied monetary compensation that Black & Decker owes him for their share of the fault for his accident.

New Report Finds Government Recalls of Defective Products Ineffective

jmcooper@jmcooperlaw.com (Blog Author)11250 — Thu, 23 Apr 2009 08:00:00 EST

After reviewing the Consumer Products Safety Commission's progress reports regarding 25 recalled products and finding that several of the reports were either completely lacking critical information or internally conflicted, non-profit group Kids In Danger concluded in its annual report that the CPSC could not effectively determine whether these recalls were in fact successful or effective. In addition, the report opined that the CPSC's oversight of its product recalls was insufficient, because not enough was or is being done to notify consumers of the product recalls, as a result of which many of these dangerous products are remaining in consumer's homes or school facilities, rather than being taken out of circulation.

The CPSC's response to this report, which predictably defended their record on the recalls, also contained a somewhat interesting claim: according to their spokesman, the primary method by which the CPSC determines if its recalls are working is by waiting to see whether they are still receiving reports of problems with the product.

From this statement, it seems like the CPSC's follow-up on any one of its product recalls is largely, if not purely, reactive. Thus, theoretically, the CPSC would determine that one of its recalls failed only after someone suffered a tragic accident or traumatic personal injuries.

I, for one, would have hoped that this massive governmental agency, whose mission statement accepts responsibility for assuring the safety of our children from unsafe toys and other recreational and household products, would have a far more scientifically sound and proactive method for assessing the success of a product recall.

How Videotapes Can Dramatically Impact Upon Your Personal Injury Lawsuit

jmcooper@jmcooperlaw.com (Blog Author)10396 — Sun, 29 Mar 2009 08:00:00 EST

On March 26, it was reported that a young man has brought a personal injury lawsuit against his local police department based on his claim that his arresting officer unnecessarily punched him in the throat. Under normal circumstances, chances are that a jury hearing this case would dismiss it out of hand in a heartbeat, particularly when they would see that the plaintiff in question certainly doesn’t come across as Mr. Nice Guy. But this case will almost certainly have a different outcome, and for one simple reason: the entire incident was caught on the officer’s dashboard video camera, and it corroborates this plaintiff's version of the events.

After viewing the video, I don’t believe that this person was seriously injured. But this story is still important, because it serves as an important reminder for personal injury accident victims to take note of all independent evidence verifying your version of the events to support your claim. Stated plainly, if you have the opportunity to more objectively (i.e., other than solely through your own credibility) establish what occurred in your accident, it certainly behooves you to do so. Some common examples of how to garner this type of evidence includes gathering the contact information for non-party witnesses to the accident, and perhaps most importantly, ascertaining if there are any nearby bank or store video cameras that might have caught what happened on tape. (In fact, in one two-vehicle accident case I handled several years ago, the high speed car crash was caught on the tape of a bank that was located across the intesection.)

One final note with regard to the videotapes: it is crucial that you get this information to your attorney as soon as possible after the accident, because many tapes are destroyed, or taped over, within a short time in stores' and banks' regular course of business absent a prompt and specific notice or request that the tapes be preserved.

Why Employers' Safety Standards Should Not Be Accepted At Face Value

jmcooper@jmcooperlaw.com (Blog Author)10012 — Mon, 16 Mar 2009 08:00:00 EST

Congress' investigation into the facts underlying a head-on collision between two trains that resulted in hundreds of injured passengers and several fatalities has unearthed some extremely disturbing facts, particularly that one of the train's operators seems to have missed a critical signal because he was distracted by text messages he was either sending or receiving on his mobile phone at the time. For more on this topic, please read our article here.

Why Defamation Lawsuits Are Often A Waste of Time and Money

jmcooper@jmcooperlaw.com (Blog Author)9854 — Wed, 11 Mar 2009 08:00:00 EST

In a decision that is scheduled to appear in tomorrow's print edition of the New York Law Journal, Brooklyn Supreme Court Justice Edwards has dismissed a plaintiff's defamation lawsuit. In plain English, the plaintiff in this case claimed that that the defendant had publicized nasty allegations about her. Interestingly, the Court did not dismiss the case because the plaintiff's claims were not credible; to the contrary, the Court explicitly noted that the defendant had all but admitted making those derogatory statements. Rather, the Court dismissed the case because the plaintiff for the simple reason that she had not produced "one scintilla" of proof that she had sustained any damages as a direct result of the defendant's actions.

I find this decision disturbing, because if accurate, the plaintiff's attorneys should never have taken the case. What were they thinking?

Pretty much every case has two elements: liability and damages. Even under the best case scenario, such as where the defendant concedes liability, your case remains worthless if you have sustained no personal injuries or damages. For example, if Ithe defendant runs a red light (or stop sign) as a pedestrian is proceeding through the crosswalk, and the defendant manages to avoid hitting or injuring the pedestrian, what do you think that pedestrian's damages are? That's right - zero; the pedestrian should be grateful.

The same analysis should hold true here. If the plaintiff sustained no demonstrable or provable damages as a result of the defamation (which more often than not will be the case so long as it remains in the private, rather than small business or commercial context), the defendant could get up and admit making the statements, but it will not change the ultimate result of the case - that it is worthless.

Trial Lawyers As Part of the Solution to Wall Street Greed: A Radical Concept?

jmcooper@jmcooperlaw.com (Blog Author)9748 — Sun, 08 Mar 2009 08:00:00 EST

In a blog posted lasted week, Matt Miller floats a radical suggestion to recover those obscene bonuses that were paid out by Wall Street firms who had just taken billions in U.S. taxpayer aid: hire a class action trial lawyer who will take the case on a contingent fee.

William Lerach, who would have been the natural choice to lead the charge, is unfortunately unavailable to take this case because he is currently in the middle of a two-year prison term. But that doesn't mean the idea doesn't have merit. In fact, the blog cites Mr. Lerach's lengthy and detailed response of how such a case would work - the U.S., in one form or another, may actually have standing to bring such a suit against the various banks and their boards of directors. And although there may be some procedural and substantive challenges that would need to be surmounted, he believed that the cases would still be worthwhile, if for no other reason than to serve as a potent deterrent against similar conduct by these financial institutions moving forward.

While it is unclear whether this particular tactic would work, one thing is fairly certain: it certainly stands a greater chance of success than trying to "shame" these bankers into ethical behavior.

Why Consumer Protection Should Not Be The Government's Exclusive Domain

jmcooper@jmcooperlaw.com (Blog Author)9744 — Sun, 08 Mar 2009 08:00:00 EST

Although there has been much written and reported about defective and hazardous drywall material made in China, a report that came out earlier today on this subject is downright frightening. According to Florida-based News-Press.com, it appears that officials from the Environmental Protection Agency, among other governmental entities (including the Florida Department of Health), waited at least 2 months from the time that they knew of the potential health or toxic hazard that these materials caused until notifying the public because they wanted to coordinate their efforts with a prominent builder that had used much of these materials, and to avoid any hysteric reaction caused by "sweeps week" on televsion.

To put this in context, following is a partial list of the complaints received regarding the Chinese-manufactured drywall:

the faulty drywall gives off a rotten-egg smell, and also gives off chemicals that rust air conditioning coils and either tarnishes or ruins other metals inside the home, including jewelry, electrical wiring, and plumbing. Those living in homes with the defective product have complained of experiencing respiratory difficulties, nausea and skin-related problems that tend to lessen when leaving the home, and are aggravated while at home. These are hardly "minor" discomforts.

At the very least, this story should help inform the tort reform debate, in order to assure that people with legitimate claims are not left subject to the whim (and perhaps, irresponsibility) of governmental officials whose agenda does not have the public's safety as their foremost concern.

How New York's Laws Limit Defective Products and Personal Injury Lawsuits

jmcooper@jmcooperlaw.com (Blog Author)9738 — Sun, 08 Mar 2009 08:00:00 EST

As noted in our news section, a New York jury recently held that the manufacturer of a conveyor system was not liable for the personal injuries suffered by a man whose hand was caught in the machinery. Although the plaintiff's personal injuries in this particular case were severe, it certainly seems - at first blush - like the plaintiff pursued the wrong defendant. Here's why:

In this case, the plaintiff claimed that the manufacturer should be held responsible for the serious injuries he sustained because the manufacturer should have warned against setting up the machine in close proximity to a table and offloading tray, since such a setup posed a risk of his hand getting caught in the gap between them. To say the least, this is a weak theory of liability, and the jury apparently concurred.

In rendering their verdict, the jury agreed with the defendant manufacturer's assertion that the defendant should not be held liable in negligence or otherwise, because there was no evidence that the product they manufactured was defective, and they should not be held responsible to warn against a dangerous condition that was created by the user (i.e., plaintiff's employer) rather than them.

This raises an important question: presumably, the plaintiff knew there was a weak case against the manufacturer. So why did plaintiff sue the manufacturer rather than what was presumably a much stronger case against his employer? The answer lies in the Workers' Compensation Law, which bars a claimant from suing his employer for work-related personal injuries unless he sustains one of the specifically delineated categories of "grave injury" set forth in Workers' Compensation Law §11. Realizing the limitations imposed by the law, the plaintiff elected to pursue the only other potentially liable defendant - the manufacturer.

How to Prevent a Product Recall From Destroying Your Small Business

jmcooper@jmcooperlaw.com (Blog Author)9610 — Wed, 04 Mar 2009 08:00:00 EST

After 2007, which bore the dubious distinction as "The Year of the Recall," and 2008, which saw even more recalls that were undertaken either voluntarily or in response to a governmental demand (not to mention the recent recall of well over 2,000 peanut-based products following the salmonella scare), there were several news reports of small businesses, particularly children's toy distributors and tire suppliers, that openly expressed their fears that any recall of their particular products would force them to close their doors. Strangely, none of these articles discussed a relatively straightforward solution to this threat: defective product or product contamination insurance.

According to A.M. Best Co., this area of insurance, despite the economic recession, is continuing to grow at a rapid clip of over 30% a year.

If you run a small business that either manufactures or distributes products that could potentially become the subject of a safety recall, it certainly behooves you to ascertain whether this brand of insurance can cover your business; your business's survival may one day depend on it.

When Food Poisoning Lawsuits Go Too Far

jmcooper@jmcooperlaw.com (Blog Author)9516 — Sun, 01 Mar 2009 08:00:00 EST

On Friday, it was reported that a 79 year-old man sued McDonald's because when he bit into a hash brown, it contained some "unidentified foreign object," as a result of which he allegedly sustained immediate and "unexplained" medical complications. The plaintiff contends that the McDonald's in question not only preserved the foreign object, but they had it tested, and have prevented him or his experts from evaluating this mystery foreign substance.

Although I usually litigate food poisoning cases from the plaintiff's side, I have a great deal of trouble believing that this case has merit. And if I am skeptical about the legitimacy of this defective food product lawsuit, I think it's a safe bet that a jury (which almost certainly will be less plaintiff-friendly than I am) will feel the same way. Here's why: There is a marked difference between what claims may have just enough specifics to survive a motion to dismiss and what claims you can actually expect to win at trial.

Even assuming that the plaintiff's claims in this case survive McDonald's motion to dismiss the case on the grounds that plaintiff's claims are unduly vague as to identifying what foreign object purportedly caused his illness (which is questionable), the plaintiff claim that he has sustained "unexplained" personal injuries is more troubling - and puzzling; simply put, if the plaintiff doesn't know what his illness is, how can he possibly prove that his illness was caused by something that he consumed at McDonald's?

In sum, from the facts given in the news article, it seems clear that this food poisoning case doesn't pass the smell - or, in this case, taste - test. In contrast, a stronger food poisoning case will likely have some of the supporting proof set forth in this article.

Why It May Pay to Fight Your Insurer's Disclaimer of Coverage

jmcooper@jmcooperlaw.com (Blog Author)9439 — Thu, 26 Feb 2009 08:00:00 EST

In a scathing opinion that chastised some standard insurance practices with regard to their catch-all "reservations of rights" to assert further defenses at a later date, New York's Appellate Division, First Department effectively issued an important reminder to all small business insureds: don't take the insurer's disclaimer for granted or at face value; it may not be valid, and the insurer can be held liable to you in breach of contract, among other things. To read more, read our article.

Electronic Data Discovery - Avoiding Costly Mistakes

jmcooper@jmcooperlaw.com (Blog Author)9385 — Tue, 24 Feb 2009 08:00:00 EST

In a somewhat scary opinion that was issued last month, the appellate court for the D.C. Circuit affirmed a lower court's order which both sanctioned and held in contempt a non-party for failing to comply with a deadline for the completion of electronic discovery that its attorneys had previously agreed to.

In its opinion, the appellate court refused to consider the non-party's arguments that this discovery request was overly broad and undly burdensome. In particular, the non-party noted that the parties' search terms returned such a broad swath of electronic documents, that several personal e-mails between employees and their spouses (which were clearly irrelevant to the case) came up, and the sheer volume of documents that these search terms returned forced this non-party agency, The Office of Federal Housing Enterprise Oversight, to hire approximately 50 contract attorneys for this document review, and to incur roughly $6 million in expenses (approximately 10% of this agency's annual budget).

Despite this incredible burden - and by a non-litigant no less - the court remained unpersuaded that the lower court had abused its discretion because OFHEO had already extended - and subsequently disregarded - several deadlines for their compliance with these discovery demands, and their obligation to comply with the terms of their own attorney's agreement was unambiguous.

The lessons to be learned here for New York small businesses that have been called into commercial litigation are clear:

(1) Make sure you have a good estimate about the scope and expense of an anticipated electronic data or document disclosure - BEFORE any agreements are entered into regarding the time and expense of the data production;

(2) DO NOT allow the other parties to determine what the appropriate search terms will be without an appropriate mechanism to assure that you do not end up being required to produce a voluminous amout of records that bear no relation to the case;

(3) Make sure that the manner in which the electronically stored information is to be produced is reduced to writing - this could save you a great deal of time and effort, not to mention trees; and,

(4) In appropriate circumstances, that there are systems in place to assure that the demanding party bears at least some of the expense of the production (parenthetically, this is probably one of the best ways to insure that the demands are streamlined to the relevant discovery, as it is unlikely that the demanding party will want to pay for a bunch of e-mails you had with your brother about his trip to Atlantic City).

Play At Your Own Risk: A Valid Legal Concept?

jmcooper@jmcooperlaw.com (Blog Author)9370 — Mon, 23 Feb 2009 08:00:00 EST

Earlier today, the New York Times published an article discussing an equestrian rider's comeback from devastating injuries that he sustained last year when the horse he was riding crashed into a fence, causing him to sustain serious personal injuries, including a traumatic brain injury (as a result of which he was rendered comatose), several broken and fractured bones and a punctured lung. In the wake of this particular incident, as well as the deaths of several riders, significant debate within the equestrian community began as to whether the riders were being provided with adequate safeguards.

While I have no particular interest in equestrian riding (nor, for that matter, do most people that I know), the Times article raises an interesting legal issue. I can't begin to count how many times I have walked onto a basketball or tennis court, or even an ice skating rink and seen a big sign in bold letters proclaiming "PLAY AT YOUR OWN RISK!" I imagine I'm not alone in this experience. The question is, does that sign have any legal significance, or is it merely a cheap ploy to convince those who have been injured while playing that they cannot sue for their personal injuries?

Under New York law, the answer to this question turns on whether the accident was caused by an open and obvious condition, or whether it was caused by a latent defect that the defendant either knew or should have known about. In the former circumstance, such as a slippery bowling alley, the plaintiff will be barred from recovering any money; in the latter circumstance, the plaintiff's lawsuit will usually be allowed to survive dismissal.

The moral of the story? Don't be too quick to believe everything you read.

Half-Truths, Selective Memories and White Lies - Grist for Collateral Attack at Trial

jmcooper@jmcooperlaw.com (Blog Author)9217 — Wed, 18 Feb 2009 08:00:00 EST

Just one week ago, I opined that Alex Rodriguez did the right thing by publicly admitting - albeit belatedly - about his use of performance enhancing drugs back in 2003, and likened it to Michael Phelps's decision to admit his wrongdoing in smoking a certain illicit substance at a party.

Well, it appears that I may have been a bit too quick out of the gate on that one, because as it turns out, A-Rod has failed rather miserably to fully explain his actions. To the contrary, he compounded his public relations image problems at a news conference earlier today by denying that he knew he was taking steroids (which strains credulity to say the least, given that they were apparently the absolute top-of-the-line performace enhancing drugs at the time), and blaming his poor choice to take the banned substances on youth and naivete, when it has already been well-documented that at the time he took the 'roids, he was already a veteran star player and a multimillionaire.

In my view, A-Rod's half-truths and white lies were and are so transparent that his prepared statement at today's press conference has been rightly criticized and mocked. The moral of the story is this: if you're gonna come clean, then go all the way; otherwise, just keep your mouth shut and say nothing. Going half-way with the truth is rarely a viable option, because it leaves you stuck straddling a proverbial barbed-wire fence of lies (i.e., you will be caught in your lies and no one will believe you) - and that will hurt far worse than if you just went over the fence and got a little cut up, or never tried to scale the fence at all.

Wal-Mart Sued in Negligence Over Snake Attack

jmcooper@jmcooperlaw.com (Blog Author)9174 — Mon, 16 Feb 2009 08:00:00 EST

Earlier today, it was reported that when shopping in a Florida Wal-Mart's gardening section, a customer was suddenly attacked by a rattlesnake, biting his hand. Although the customer was able to shake off the snake, and ultimately killed it, he was hospitalized due to his personal injuries, and later had to return to the hospital so they could drain fluid that had built up in his lungs.

This was not the first snake attack incident that occurred at that particular Wal-Mart; there were two prior incidents that occurred in 2006. According to the customer, despite these two incidents, the store had no warning signs, and apparently did not undertake any other safety precautions. Consequently, the customer has claimed in his lawsuit that Wal-Mart should be held liable in negligence.

Interestingly, although it certainly sounds like the plaintiff in that case has enough proof to support a negligence claim, a quick search failed to find any snake bite or attack lawsuits in New York. Strange as it may sound, there are apparently some cases that New York's trial lawyers have failed to sue for - so far (though they have sued over rat and other animal bites).

Suppliers' Names Deemed Privileged as Trade Secret

jmcooper@jmcooperlaw.com (Blog Author)9162 — Sun, 15 Feb 2009 08:00:00 EST

Last week, a California appellate court which sided with Costco in its bid to prevent disclosing the names of its clothing suppliers on the grounds that this information was deserving of judicial protection as a trade secret. As we have previously noted, it is incumbent on the party asserting that certain information, such as a supplier's identity, be protected from disclosure in in a commercial, small business litigation as privileged matter or a trade secret, to demonstrate that this information was not readily obtainable from another public source, as well as what concrete steps and expense the business took to develop and protect this proprietary list. Otherwise, under New York law, the Court is obliged to compel the disclosure of the list.

Consequently, I was hoping that the California appellate court would elaborate on what specific steps Costco took to convince the Court that their clothing suppliers' identities were privileged matter worthy of protection from disclosure as a trade secret, if only to provide a measure of comparison to New York law. Unfortunately, after reading the opinion, the Court clearly glossed over this topic, stating in cursory fashion that Costco produced some evidence that its list of suppliers had monetary value, and that it made significant strides to make sure that the names and addresses of its suppliers did not become public.

Protecting Your Small Business From a Manufacturer's Breach of Contract

jmcooper@jmcooperlaw.com (Blog Author)9161 — Sun, 15 Feb 2009 08:00:00 EST

As noted in the News and Small Business sections of our site, a small construction materials supplier by the name of Screws and More has decided to go after one of the nation's largest construction materials manufacturers, Powers Fasteners, claiming that some of the parts Powers provided did not meet specs, and cost Screws a large line of business. Although the contracts between the manufacturers and suppliers are often slated in the manufacturers' favor, and expressly limit the manufacturers' liability, there are certain elementary steps that a small commercial supplier should take to assure that it does not lose any important jobs due to the failure of its manufacturer's products. To read more on this topic, click here.

Diminishing Jury Verdicts and the Economic Recession: Do They Go Hand in Hand?

jmcooper@jmcooperlaw.com (Blog Author)9037 — Wed, 11 Feb 2009 08:00:00 EST

Last month, Bloomberg's research confirmed that which those of us who been selecting juries or trying cases have known for some time: there has been a clear downward trend in the top jury verdicts over the last several years. My colleagues at Carroll & Carroll have also noted that the top jury awards nationwide from 2007 were nearly 75% lower than the top verdicts from two years earlier, in 2005.

Why am I writing about this, you ask? Because it is important for anyone who retains an attorney, whether for a personal injury matter, a defective product lawsuit, or even for a small business or commercial litigation matter to understand that the courts have disallowed exorbitant jury awards, particularly in the aftermath of the United States Supreme Court's decision which held that punitive damages must, as a general rule, be capped.

The second, and perhaps more important, thing that the prospective client to assimilate is that juries have grown increasingly conservative, especially as the economy has soured. Although it could easily be argued that the two are wholly separate and distinct, and the product of a multitude of factors, I think that two are certainly inter-related, and intimately. And I think the following illustration clarifies this link: how can you expect a juror who has just lost his job, and will need to return to the unemployment line immediately after completing his jury service, to empathize with your claim that you only made $1.5 million in profits last year instead of the $3 million you would have earned had your unfaithful and disloyal employee not stolen or embezzled your proprietary information and trade secrets? You can't.

Are Hybrid and Electric Cars Too Quiet?

jmcooper@jmcooperlaw.com (Blog Author)9028 — Wed, 11 Feb 2009 08:00:00 EST

I just found a very interesting series of articles discussing how the new breed of cars that run on hybrid or electric technology are actually too quiet. Although, given the loud cacophany that usually bombards New Yorkers' senses, this contention would seem absurd, a recent scientific study confirmed complaints raised by the Federation for the Blind that unlike regular gasoline-consuming vehicles, these cars fail to adequately warn pedestrians or other oncoming vehicles of their speed and approach, and thereby pose a greater safety hazard and potential for bkie or car accidents or injury. To read our fuller discussion of this topic, please see our article here.

Saving Small Business Clients Money - the Lawyer's Secret to Success

jmcooper@jmcooperlaw.com (Blog Author)8976 — Tue, 10 Feb 2009 08:00:00 EST

In an article that appears in today's New York Times, a few prominent venture capitalists are quoted as saying that in the midst of this economic recession, the best way to entice investment in a start-up or small business is by demonstrating how the company's mission is specifically geared to save their clients money; decreased revenue across the economic spectrum have mandated that it is no longer enough to put out a great product.

And how does a small business go about showing that? Some recommendations, culled from the hi-tech sector, include using renewable materials, or promoting new web-based applications that are designed to seamlessly integrate different software applications, thereby increasing productivity.

This rule applies to the law business as well. In order to effectively market a law practice to small businesses, attorneys should be able to demonstrate, in concrete terms, to prospective clients how their firm streamlines the legal process to assure peak efficiency, particularly, but not limited to the context of litigation. One way this can be done is by filing cases electronically; another is by storing documents electronically for easy reference and retrieval; a third way is communicating with clients, adversaries and experts via e-mail, which not only reduces significantly postage costs that would otherwise be incurred, but also eliminates the time lag caused by the back-and-forth of snail-mail.

Stars' Admissions of Drug Use And Lessons We Can Apply At Trial

jmcooper@jmcooperlaw.com (Blog Author)8955 — Tue, 10 Feb 2009 08:00:00 EST

Earlier today, Alex Rodriguez, who is arguably the most talented baseball player on the planet, publicly admitted that he took performance enhancing substances, or "PEDs," which presumably helped him put up almost unprecedented batting statistics. Clearly, Rodriguez's admission does not seem to stem from any altruistic need to come clean and clear the air, especially given that it almost immediately followed another report noting that he tested positive for taking the drugs back in 2003, before he became a member of the New York Yankees.

Nevertheless, despite the universal disappointment in this revelation and the tarnish to Rodriguez's records that may never be removed, it is fascinating how differently the media and public are treating the disclosure of Rodriguez's steroid use from other performance-enhancing steroid users, such as Mark McGwire, Sammy Sosa or Rafael Palmeiro (and apparently Roger Clemens). Once he was caught, Rodriguez has distinguished (if you can even use that term) himself by coming forth publicly and openly admitting his guilt. In this sense, A-Rod's tack mirrors that which Michael Phelps did about a week ago, when he admitted smoking marijuana when pictures showing him engaged in the questionable behavior surfaced. Leaving aside the issue of pure morality - which dictates that these athletes admit the truth - Rodriguez and Phelps's approach of promptly and publicly admitting their guilt when caught will pay huge dividends in the court of public opinion because people understand, and are willing to forgive, those who make mistakes and own up to them; what people hate, and are unwilling to forgive, are wealthy prima donnas who sacrifice "lesser people" who get in their way (see Barry Bonds, Roger Clemens), and continue to blithely repeat their hollow denials that defy credulity.

And, I believe, this most valuable lesson is equally applicable in the courtroom, whether it be in a defective products, personal injury or small business litigation matter as it is in the court of public opinion: if a witness has made a mistake, own up to it, and the jury may not penalize you. If you deny it and you are caught, the jury will never forgive you, and your credibility (and that of your client) will be forever lost.

New York Court Disallows Video Testimony

jmcooper@jmcooperlaw.com (Blog Author)8950 — Mon, 09 Feb 2009 08:00:00 EST

In an important ruling, New York’s Appellate Division, First Department recently held that, as a general rule, a trial court may not accept trial testimony that is conducted via video or teleconferencing because it violates the other party’s constitutional right to confront adverse witnesses. Although the Appellate Court acknowledged that there were limited exceptions to this rule, such as cases where testimony was sought from children that were victims of abuse, the majority of the split court still felt that a party’s right to confront adverse witnesses “face to face” outweighed other parties’ needs to adduce testimony from witnesses that could not appear in court either due to illness or inconvenience (such as where the complainants lived in Australia).

This ruling was rendered in the criminal law context, but apparently applies in the civil context as well, including cases dealing with small business or commercial litigation, personal injury or defective products lawsuits. And this can have very real economic and other consequences, such as where one of the defendants to a defective products lawsuit is a foreign manufacturer or distributor, or where the “silent” partner of a small company is a venture capitalist who lives more than 6,000 miles away.

In the end, I am not convinced that face-to-face confrontation is uniquely able to reveal the truth, particularly given the technological advances that would render these witnesses in remote locations to view the entire courtroom – including their adversaries. To the contrary, I think that this ruling effectively dealt the search for truth a harsh blow, because it will prevent numerous important witnesses from telling their stories before juries.

Will New Stimulus Package Offer Small Businesses Real Benefits?

jmcooper@jmcooperlaw.com (Blog Author)8910 — Mon, 09 Feb 2009 08:00:00 EST

Although the Economic Stimulus Act of 2008, with its allowances for larger credits and write-offs for research-based expenditures, and reducing the amortization period for deducting the expense of rental space improvements are certainly welcome news for small business owners, these provisions, as correctly noted in yesterday’s New York Times article, do little, if any, good for many small companies that made little or no money against which these deductions would theoretically be applied.

Some small business owners are facing a different problem: those who made a moderate sum of money in 2008, but now, due to the recession, cannot afford to pay their taxes. While a spokesman for the Internal Revenue Service stated publicly that the IRS was willing to work with small commercial business owners to ease the burden of paying their tax bills in full, little specifics on how the mechanics of this process will work have been provided.

One provision in the new proposed stimulus plan is somewhat promising: it permits businesses that lost money in 2008 to offset the loss against the surplus that the business had in the five previous years. In that fashion, these businesses could recover, in the form of a tax refund, some of the losses that they experienced in 2008.

While many pundits have postulated that additional help for small businesses are in the works, the proof will be in what makes it (and doesn’t make it) into the legislation that is due to be signed shortly. Time will tell.

Fatal Mistakes When Hiring a Lawyer for Your Small Business

jmcooper@jmcooperlaw.com (Blog Author)8897 — Sun, 08 Feb 2009 08:00:00 EST

Last night, I came across this "How To" article that made 3 suggestions as to how to save money when hiring a lawyer for a personal injury case. While I do not fault anyone for trying to save a few dollars, particularly in this economic climate, I think the author is terribly misguided. Simply put, if a lawyer would actually agree to abide by any of the suggestions in that article, then you can be sure that is not the lawyer you want for your case, particularly if your case has to do with your small business or commercial litigation needs in New York.

Leaving aside the issue that most personal injury attorneys work on a contingency basis rather than an hourly rate (which renders moot most of the article), the other suggestions suffer from serious flaws as well. Perhaps the best example is his notion that you can offer to file the necessary papers in Court in exchange for a reduction in fee. I cannot imagine any attorney agreeing to these terms for the very basic reason that if you (presumably a non-lawyer) make any mistake in filing the papers with the Court, the attorney has opened himself up to a legal malpractice claim.

Moreover, even assuming that the attorney were to ignore the malpractice possibility (which he clearly shouldn't), the author's thought that it would be worthwhile for the attorney to significantly reduce his fee for clerical tasks that would ordinarily cost under $100 is, for lack of a better term, absurd. (The following analogy comes to mind: you ask your doctor to reduce his fee in exchange for you beginning the medical procedure for him.

In addition, this suggestion also ignores the fact that some clerical tasks cannot be handled by the client as a matter of law, such as service of legal papers on the other parties to the litigation.

Instead, if you are interested in getting the best value for your money when hiring a lawyer, you should consider the suggestions listed here.

Dangerous Intersections and Roads - Why the States and Local Authorities Should Be Liable

jmcooper@jmcooperlaw.com (Blog Author)8787 — Thu, 05 Feb 2009 08:00:00 EST

In a case from Orange County in California that was reported yesterday, a jury held the local municipality liable for causing the collision between a car and the teenage boy’s bike, as a result of which the boy sustained serious personal injuries, including the loss of one leg below the knee. From the news report, it seems fairly clear that the government intends to appeal the jury’s $8 million plus verdict, because from their vantage point, it is manifestly unfair to cast the lion’s share of liability on the municipality when they had no direct role in the bike and car crash; they did not own or operate either the car or the bike. While, at first blush, the municipality’s argument seems meritorious, if you think a bit more critically, you will realize that their argument contravenes what we know from our everyday, real-world experience.

There are some intersections and streets that have had such a disproportionately high number of tragic car accidents and fatalities over the last several years (such as Queens Boulevard in Forest Hills and Rego Park in Queens County, New York, which the local papers have dubbed the “Boulevard of Death”) that it is clear to all that these roadways are defectively and dangerously designed. Consequently, the better public policy is to hold the municipalities and states liable for these conditions; otherwise, these governmental entities will have far less incentive to assure the safety of their roads.

For additional information as to whether governmental or municipal authorities are liable for the dangerous conditions of intersections and roadways under New York law, you can read our article here.

Injured Factory Worker Burned By Defective Machine Recovers $500,000

jmcooper@jmcooperlaw.com (News Author)12529 — Sat, 30 Jan 2010 08:00:00 EST

When trying to re-feed a lead cloth into a jig dye machine, plaintiff factory worker Mike Chau was forcibly thrown into the dye vat, causing him to sustain second and third-degree burns to a significant portion of his body. The plaintiff and the defendant manufacturer sharply disagreed over whether a machine malfunction (or, in other words, whether the machine suffered from a defective design, a manufacturing defect, or whether the defendant manufacturer had failed to issue proper warnings), or the plaintiff's own failure to stop the machine before attempting to re-feed the cloth was primarily responsible for the plaintiff's accident. In any event, the parties agreed to settle the case before trial for $533,000.

Suffolk County parents found not negligent for 7 year-old child's trampoline injury

jmcooper@jmcooperlaw.com (News Author)11680 — Fri, 11 Dec 2009 08:00:00 EST

Following a liability trial, a Suffolk County jury found that a pair of parents from Hauppauge were not liable for the personal injuries (including a broken ankle) sustained by a 7 year-old child who fell off of the trampoline that they had set up in their backyard. Although the child's attorney correctly pointed out that the defendants had failed to heed the manufacturer's instructions which indicated that it was unsafe to have 4 children using the trampoline at one time, the jury nevertheless found credible the defendants' contention that they were unaware of this warning on the product, and therefore found the defendants were not negligent.

Relying on NY's "Pothole Law," Appeals Court Dismisses Negligence Case Against City

jmcooper@jmcooperlaw.com (News Author)11336 — Wed, 18 Nov 2009 08:00:00 EST

In this case which just came down on November 10, the plaintiff sustained personal injuries when she stepped into a pothole in the street immediately adjacent to sidewalk construction. As a result, the plaintiff sued the City of New York, as well as the owner of the property fronting the construction area, which turned out to be a co-op. Ultimately, the Court granted the City's motion, and dismissed the case as against them pursuant to Administrative Code §7-210, a/k/a New York's "Pothole Law," because the plaintiff could not prove that the City had prior notice of the defect. On the other hand, the Appellate Court did not uphold the dismissal of the claims against the co-op because the Court felt that the co-op failed to meet its burden of proof in demonstrating that the individual shareholders did not have responsibility, or liability, for the defective area, nor did the co-op submit any evidence that it had nothing to do with authorizing the construction.

Fire Hazard Leads to Expanded Recall of Defective DVD Players

jmcooper@jmcooperlaw.com (News Author)10286 — Sun, 06 Sep 2009 08:00:00 EST

After receiving nearly 15 separate reports that its Durabrand DVD players were overheating, resulting in fires that caused property damage, Walmart expanded its previous recall of over 1.5 million DVD players to over 4 million. For additional information on the recall of this defectively designed product, please visit www.walmartstores.com.

Defective Design Leads to Recall of Bicycle Trailer

jmcooper@jmcooperlaw.com (News Author)10071 — Sun, 23 Aug 2009 08:00:00 EST

After discovering that its axle was defectively designed, and could cause one of the wheels of its bicycle trailer to fall off, and thereby cause the children riding in the trailer to sustain serious personal injuries, Burley Design, in conjunction with the U.S. Consumer Products Safety Commission announced the voluntary recall of over 2,500 child trailers. For additional information on this defective product recall, please visit www.burley.com/STProductRecall.

Children's Toy Importer Pays $31,000 Penalty to CPSC For Safety Violations

jmcooper@jmcooperlaw.com (News Author)10013 — Tue, 18 Aug 2009 08:00:00 EST

After its investigation revealed that California-based toy importer TGH International Trading had brought in over 10,000 toys that contained choking hazard components, and therefore had violated the Federal Hazardous Substances Act, the CPSC finally settled its charges against TGH, with the importer agreeing to pay a $31,000 penalty.

Out of Control Taxi Crashes Into Upper West Side Subway Station

jmcooper@jmcooperlaw.com (News Author)10017 — Tue, 18 Aug 2009 08:00:00 EST

Earlier today, a yellow taxicab jumped the curb and crashed immediately outside the New York City Transit Authority's subway station on Manhattan's Upper West Side at the corner of West 72nd Street and Broadway. Three people apparently suffered personal injuries as a result of this accident, and police are still investigating the cause of this automobile accident.

Roughly 1 Million Children's Play Yards Recalled Due To Consumer Safety Hazard

jmcooper@jmcooperlaw.com (News Author)9951 — Tue, 11 Aug 2009 08:00:00 EST

After receiving nearly 350 complaints that the side rail of its play yards were collapsing, and that over 20 children had suffered personal injuries as a result of this defective design, Kolcraft, in conjunction with the Consumer Products Safety Commission, issued a voluntary recall of this product.

For additional information on this consumer product recall, please visit www.kolcraft.com.

Children's Toy Dog Recalled Due to Choking Hazard

jmcooper@jmcooperlaw.com (News Author)9729 — Tue, 04 Aug 2009 08:00:00 EST

After receiving two complaints that the decal from its toy dog was liable to detach from the toy and thereby posing a choking hazard, LeapFrog voluntarily recalled nearly 4,000 of its defectively designed My Pal Scout Electronic Plush Toy Dogs. For additional information on this product recall, please visit the website that they have established for this express purpose, at www.leapfrog.com/recall.

Black & Decker Issues Further Product Recall of Electric Hedge Trimmers

jmcooper@jmcooperlaw.com (News Author)9750 — Tue, 04 Aug 2009 08:00:00 EST

After receiving an additional 100 complaints of injuries by consumers, Black & Decker expanded and extended its previous recall in 2007 of its Grasshog XP String Trimmer/Edgers. The new recall covers approximately 200,000 of this particular product.

Apparently, the design defect in this particular product is multi-faceted: first, there are pieces of the trimmer that are prone to become loose, which are at risk of being launched from the trimmer; second, this product tends to overheat during use, which presents the user with the risk of being burned.

Black & Decker is offering consumers a free repair kit. Additional information on this defective product recall is available at Black & Decker's website at www.blackanddecker.com.

Russell Brands Recalls Defective Spalding Basketball Hoops

jmcooper@jmcooperlaw.com (News Author)9751 — Tue, 04 Aug 2009 08:00:00 EST

Although no incidents of injuries have been reported, earlier today the Consumer Products Safety Commission announced a voluntary recall of Spalding's Chinese-made in-ground basketball hoops because the bolts that anchor the hoop into the grounds were apparently defective and prone to breakage, and thus posing a safety hazard to consumers.

For additional information on this defective product recall, please visit their website at www.spalding.com.

Finance Company Files $24 Million Breach of Contract Claim Against Annie Leibovitz

jmcooper@jmcooperlaw.com (News Author)9717 — Sun, 02 Aug 2009 08:00:00 EST

In yet another sign that the economic downturn is far from over, a New York-based finance company that purportedly loaned celebrity photographer Annie Leibovitz $24 million has now sued her for breach of contract, claiming that she has failed to fulfill her obligations under the agreement. Apparently, she had borrowed the money due to her financial difficulties.

Fire Hazard Prompts Product Recall of Defective Washing Machines

jmcooper@jmcooperlaw.com (News Author)9688 — Thu, 30 Jul 2009 08:00:00 EST

After discovering that a defect in the design of its washing machines' drain pumps were liable to heat up, and thereby present a fire hazard, Frigidaire, in conjunction with the Consumer Products Safety Commission announced the voluntary product recall of over 30,000 of its washing machines.

For additional information regarding this defective product recall, please visit the independent website that Frigidaire established for this purpose, www.laundrypumprecall.com.

Laceration Safety Hazard Prompts Recall of Baby Bouncer Seats

jmcooper@jmcooperlaw.com (News Author)9632 — Wed, 29 Jul 2009 08:00:00 EST

After finding that tiny but sharp pieces of metal were sticking out from their infant's bouncer seat, and thereby posing a serious danger and safety hazard to small children, Baby Bjorn voluntarily recalled over 6,000 of its bouncer seats. For more information on this defective product recall, please visit www.babyswede.com.

Roughly 1.4 Million Children's Shoes Recalled Due to Choking Hazard

jmcooper@jmcooperlaw.com (News Author)9566 — Fri, 24 Jul 2009 08:00:00 EST

After receving reports that the wheels from its children's clogs were detaching, and thereby posing a choking and safety hazard, Buster Brown, in conjunction with the Consumer Products Safety Commission announced a voluntary recall of these defective Chinese-made children's shoes. For more information on this defective consumer product recall, please visit the company's website at www.busterbrownshoes.com.

Nearly 90,000 Defective Gas Grills Recalled Due to Burn & Fire Hazard

jmcooper@jmcooperlaw.com (News Author)9571 — Fri, 24 Jul 2009 08:00:00 EST

After receiving over 100 complaints of fires and burn injuries secondary to the use of their Chinese-manufactured barbecue grills that were apparently caused by the proximity of the gas tank's hose to the grill's firebox, Fiesta Gas Grills, in conjunction with the Consumer Products Safety Commission, issued a voluntary recall of their Blue Ember Gas Grills.

For additional information on this defective consumer product recall, please visit their website at www.blueembergrills.com.

Jury Awards $12 Million To Worker Who Fell From Elevated Subway Track

jmcooper@jmcooperlaw.com (News Author)9562 — Thu, 23 Jul 2009 08:00:00 EST

Recently, a Brooklyn jury found that the New York City Transit Authority was negligent, and therefore responsible for the serious personal injuries sustained by George Nunez, because they failed to tell him that they had removed the supporting bolts on the walkway where he was directed to go, and that he therefore needed to engage a safety harness. As a result of his fall from the elevated subway walkway, Mr. Nunez sustained numerous fractures, including to his pelvis, writs and face, and, according to Mr. Nunez, he sustained a traumatic brain injury, which left him with cognitive deficits.

Children's Telephone Toys Recalled Due to Choking Hazard

jmcooper@jmcooperlaw.com (News Author)9543 — Tue, 21 Jul 2009 08:00:00 EST

After learning that a small mirror attached to its telephone toy has a propensity to detach from the main unit, and thereby pose a choking hazard to infants and small children, Evenflo, in conjunction with the Consumer Products Safety Commission voluntarily recalled approximately 25,000 of its switch-a-roo telephone toys on July 16. Additional information on this defective consumer product recall can be seen at Evenflo's web site at safety.evenflo.com.

Burn and Shock Hazard Prompts Recall of Nearly 600,000 Defective Steam Cleaners

jmcooper@jmcooperlaw.com (News Author)9544 — Tue, 21 Jul 2009 08:00:00 EST

After receiving nearly 20 reports of consumers sustaining personal injuries, including burns and shocks caused by the wearing down of its product's power cord, California-based Thane International, in conjunction with the Consumer Products Safety Commission, voluntarily recalled nearly 600,000 of its electric-powered H₂O mops, which had been widely marketed and sold through Thane's infomercials, particularly on the QVC Network. Thane is furnishing consumers with a free repair kit which can be obtained via the product's dedicated web site at www.h2omopservice.com

Children's Vitamins Recalled Due to Wrong Dosage Information on Label

jmcooper@jmcooperlaw.com (News Author)9426 — Tue, 14 Jul 2009 08:00:00 EST

After learning that its labeling instructions on its children's multivitamins were defective in recommending an incorrect - and stronger - dosage than was appropriate, FoodScience Corp. has issued a recall of over 1,200 bottles of its product. For additional information on this defective product recall, please call the manufacturer at (800) 451-5190.

Energizer Recalls Defective Nightlights Due to Fire Hazard

jmcooper@jmcooperlaw.com (News Author)9430 — Tue, 14 Jul 2009 08:00:00 EST

After learning that its< Light On Demand Wallplate Nightlights could overheat, posing a fire hazard, Energizer, in conjunction with the Consumer Products Safety Commission, voluntarily recalled this defective Chinese-manufactured product. Customers can get their full purchase price of this product refunded by contacting Energizer directly at (800) 782-2013, or on the web at www.energizer.com.

Kolcraft Issues Recall for Defective Children's Play Yards

jmcooper@jmcooperlaw.com (News Author)9402 — Sun, 12 Jul 2009 08:00:00 EST

After receiving reports that its play yards had a design defect in its side rail which could cause its side rail to connect properly, and thereby pose a safety hazard to children and infants, Kolcraft recalled several of its play yards, including its Jeep, Sesame Beginnings and Kolcraft brands. In order to obtain a repair kit, consumers can contact Kolcraft directly via their website at www.kolcraft.com.

jmcooper@jmcooperlaw.com (News Author)9405 — Sun, 12 Jul 2009 08:00:00 EST

Last week, two people sustained personal injuries as the result of a two-car accident along Jericho Turnpike near its intersection with Denton Avenue in Garden City, Long Island. The two injury victims were taken from the accident sceene via ambulance to Winthrop-University Hospital.

Fire By Throgs Neck Bridge Leads to Lane Closures

jmcooper@jmcooperlaw.com (News Author)9398 — Sat, 11 Jul 2009 08:00:00 EST

On Friday, July 10, 2009, traffic along the Throgs Neck Bridge was brought to a standstill due to a serious fire that occurred just beneath the bridge.

Two-car Collision Leaves Central Islip Woman Injured

jmcooper@jmcooperlaw.com (News Author)9399 — Sat, 11 Jul 2009 08:00:00 EST

Yesterday, Newsday reported that a woman from Central Islip suffered personal injuries when another car, whose driver was apparently intoxicated, came into contact with her vehicle in Bayshore, Long Island.

CPSC Recalls Defective Smoke Detectors

jmcooper@jmcooperlaw.com (News Author)9400 — Sat, 11 Jul 2009 08:00:00 EST

Last week, the Consumer Products Safety Commission issued a recall of nearly 100,000 Kidde smoke alarms after discovering that the Model PI2000 was a defective product and a safety hazard because it would likely not sound in the event of a fire.

According to the CPSC, those who have purchased these defective products can contact Kidde directly to obtain a replacement smoke alarm.

Two-Car Head-On Car Crash in Rockville Centre Leaves 3 Injured

jmcooper@jmcooperlaw.com (News Author)9378 — Fri, 10 Jul 2009 08:00:00 EST

On July 9, there was a head-on collision between two cars at the intersection of Cleveland and Lincoln Avenues in Rockville Centre in Nassau County. Unfortunately, 3 people needed to be evacuated from the scene via ambulance.

CPSC Announces Recall of 400,000 Cribs Due to Strangulation Hazard

jmcooper@jmcooperlaw.com (News Author)9309 — Mon, 06 Jul 2009 08:00:00 EST

Following up on an earlier defective product recall, on July 2 the CPSC announced that an additional 400,000 Simplicity children's cribs were being recalled due to the crib's defective design that posed a suffocation hazard. Additional information on this product recall can be obtained by contacting the CPSC at (800) 638-2772.

FDA Issues Recall on Dry Milk Due to Salmonella Concerns

jmcooper@jmcooperlaw.com (News Author)9313 — Mon, 06 Jul 2009 08:00:00 EST

After its food products tested positive for salmonella contamination, the FDA issued a recall of Plainview Milk Products Cooperative's non-fat dry milk products, as well as its fruit stabilizers, whey protein and gums. For more information on the recall pertaining to this tainted food product, click here.

Defective Air Compressors Recalled Due to Risk of Fire

jmcooper@jmcooperlaw.com (News Author)9322 — Mon, 06 Jul 2009 08:00:00 EST

After learning that the off switch to its compressor is apt to fail, which presents a fire safety hazard, Campbell Hausfeld recalled over 15,000 of its Chinese-made air compressors. For more information on this defective product recall, please visit www.chpower.com or www.cpsc.gov.

$1.5 Million Awarded to Home Depot Customer

jmcooper@jmcooperlaw.com (News Author)9275 — Wed, 01 Jul 2009 08:00:00 EST

Recently, a jury awarded $1.5 million in damages for the personal injuries sustained by a man who was shopping in Home Depot. Apparently, the customer sustained injuries to his neck and spine, including herniated discs that requried surgery, when a stack of plywood fell off of a forklift and into the plaintiff.

Two Zicam Cold Remedy Products Recalled

jmcooper@jmcooperlaw.com (News Author)9038 — Thu, 18 Jun 2009 08:00:00 EST

On June 16, the maker of the Zicam brand of cold remedy products, Matrixx Initiatives, Inc. voluntarily recalled its Zicam Zicam Cold Remedy Swabs and Cold Remedy Nasal Gel in response to a warning letter that it received from the FDA. The FDA's letter was issued in response to complaints by consumers that those who used these products had sustained either diminished or a complete loss of their sense of smell, also known as anosmia. More information on the recall of these Zicam products can be found here.

Jury Awards $225,000 to Woman Injured When Car Crashed Into Wall of Her Bronx House

jmcooper@jmcooperlaw.com (News Author)9039 — Thu, 18 Jun 2009 08:00:00 EST

Following a trial at which the plaintiff testified that she suffered serious personal injuries, including a tear in her shoulder, as well as a herniated disc when the defendant's car crashed through the bedroom wall of her house in Bronx County, New York, the jury concluded that the defendant had been negligent in the manner in which she drove her car, and did not accept the defendant's assertion that her car was defective, and had - without warning - malfunctioned. Although the jury awarded the plaintiff $225,000 in damages, the parties agreed to settle the case for $100,000.

CPSC Recalls Defective Starbucks Coffee Grinding Machine

jmcooper@jmcooperlaw.com (News Author)9042 — Thu, 18 Jun 2009 08:00:00 EST

After receiving well over 150 complaints that Starbucks Barista® Blade Grinders and Seattle’s Best Coffee® Blade Grinders either turned on without warning, or failed to turn off after the on/off switch was engaged, which posed a safety hazard and of serious injury, importer Starbucks Coffee Company, at the urging of the Consumer Products Safety Commission (CPSC) agreed to voluntarily recall over 500,000 of these defective Chinese-made coffee grinders. More information on this defective product recall can be obtained by clicking here.

Pedicab and Taxicab Collide in Brooklyn

jmcooper@jmcooperlaw.com (News Author)9017 — Mon, 15 Jun 2009 08:00:00 EST

On June 9, after crossing over the Williamsburg Bridge from Manhattan into Brooklyn, a pedicab collided with a yellow cab near the intersection of Bedford Avenue and Broadway, as a result of which the passengers of the pedicab suffered personal injuries. The pedicab driver apparently suffered the worst injuries, including to his head, and he was rushed to Bellevue Hospital.

FDA Declares Clarcon Skin Products Unsafe

jmcooper@jmcooperlaw.com (News Author)8999 — Fri, 12 Jun 2009 08:00:00 EST

After its inspection of Clarcon's skin care products revealed signifcant departures from accepted FDA guidelines, and that several of their products, which were wrongly advertised as being antimicrobial, were in fact defective and unsafe because they were tainted and/or contaminated with disease-causing bacteria, the FDA issued a warning to the public, urging them to immediately discard any such products.

In the event anyone has been injured or suffered side effects from using these defective products, these results should be reported to the FDA's Adverse Event Reporting system.

Trade Secret Soft Drink Formula Found To Have Traces of Cocaine

jmcooper@jmcooperlaw.com (News Author)8993 — Thu, 11 Jun 2009 08:00:00 EST

After a study found that Red Bull's new energy drink contained cocaine, German authorities began recalling these soft drinks from vendors' shelves. Apparently, even small amounts of cocaine qualify the drink as an illegal narcotic under German law.

jmcooper@jmcooperlaw.com (News Author)8994 — Thu, 11 Jun 2009 08:00:00 EST

After finding that L-3 Communications Corp. had breached its contracts and inappropriately taken and/or used Lockheed Martin Corp. 's proprietary technology, a jury awarded over $37 million to Lockheed Martin.

Not surprisingly, L-3, which is based out of New York, indicated that they intend to appeal the jury's verdict.

Norco Recalls Over 3,000 Defective Bicycles

jmcooper@jmcooperlaw.com (News Author)8969 — Wed, 10 Jun 2009 08:00:00 EST

After receiving a complaint of a personal injury, Norco Performance Bikes of Canada recalled over 3,000 of its bicycles due to concerns that its defective design can lead to the fracture or cracking of the bicylce frame. More information on the recall of this defective product can be found at the company's website at www.norco.com, or at the Consumer Products Safety Commission's website at www.cpsc.gov

NY Fish Recalls Salmon Due to Listeria Hazard

jmcooper@jmcooperlaw.com (News Author)8970 — Wed, 10 Jun 2009 08:00:00 EST

After a routine FDA inspection found that its Imperial-European Style Smoked Salmon was possibly contaminated with Listeria monocytogenes, which has been linked to severe and potentially fatal health hazards for those with weaker or compromised immunity, such as the elderly, small children and particularly pregnant women, NY Fish Inc. recalled this defective and potentially dangerous food product.

Although most people affected by the listeria organism may sustain short-lived symptoms including bad headaches, elevated temperature, nausea and/or diarrhea, the aforementioned categories of vulnerable people are susceptible to far more serious symptoms.

jmcooper@jmcooperlaw.com (News Author)8945 — Mon, 08 Jun 2009 08:00:00 EST

After receiving more than 100 complaints that the brakes on its baby strollers failed, posing a serious safety hazard to the infants, Bugaboo Bee North America, Inc., in conjunction with the Consumer Products Safety Commission announced a baby stroller recall of over 22,000 baby strollers on June 2.

The defective strollers that are the subject of the recall can be identified by the print on the strollers' left side saying “Bugaboo Bee.”

As part of the defective product recall, Bugaboo is offering consumers a free repair kit, and will provide new brackets to repair the brakes through a form that can be completed at Bugaboo's internet site.

Children's Pajamas Recalled For Failing to Meet Flammability Requirements

jmcooper@jmcooperlaw.com (News Author)8912 — Sun, 07 Jun 2009 08:00:00 EST

In conjunction with the Consumer Product Safety Commission, New York-based Warm Biscuit Bedding Company recalled nearly 10,000 of its children's pajamas after it was discovered that these pajamas failed to meet the flammability standards that are mandated by federal law, and therefore posed a safety hazard to children and consumers generally.

For additional recall information, consumers can visit www.warmbiscuit.com, or contact the manufacturer via mail at its address located at 140 Fulton St., New York, NY 10038.

Mattel & Fisher Price Fined $2.3 Million For Importing and Selling Lead-Laced Children'sToys

jmcooper@jmcooperlaw.com (News Author)8913 — Sun, 07 Jun 2009 08:00:00 EST

As part of a settlement reached with the Consumer Products Safety Commission, Fisher-Price and its parent, Mattel, agreed to a $2.3 million fine for introducing into the stream of commerce children's toys that contained elevated lead levels.

The toys that were part of the massive toy recall in 2007 of the Chinese-made toys included Elmo, Big Bird and Dora the Explorer, as well as Barbie dolls.

$14 Million Awarded to Victim of Fuel Tanker Truck Crash

jmcooper@jmcooperlaw.com (News Author)8874 — Thu, 04 Jun 2009 08:00:00 EST

Recently, the estate of a woman who was killed when a fuel truck crashed and flipped onto her car was awarded $14 million in damages at an arbitration. Apparently, the truck driver skidded and lost control of the fuel truck because he went too fast around a curve in the highway.

60 Injured In Multi-Vehicle Accident Along BQE

jmcooper@jmcooperlaw.com (News Author)8866 — Wed, 03 Jun 2009 08:00:00 EST

According to the New York Fire Department, approximately 60 people were hurt when two buses and a tractor-trailer truck collided in Williamsburg, Brooklyn near Bedford Avenue along the Brooklyn-Queens Expressway. Although most of the personal injuries resulting from the auto accident were minor, and therefore treated at the accident scene, 6 of the injured were removed from the scene via ambulance to local hospitals, including Wyckoff Heights Medical Center and Woodhull Medical Center.

Suffocation Hazard Forces Recall of Infant Play Yards

jmcooper@jmcooperlaw.com (News Author)8863 — Tue, 02 Jun 2009 08:00:00 EST

After discovering that its Infant Play Yards posed a suffocation hazard, over 76,000 of the Chinese-made Eddie Bauer Soothe & Sway Play Yards were voluntarily recalled under the auspices of the Consumer Products Safety Commission (CPSC). Further information regarding the recall of this defective product can be obtained over the internet at www.djgusa.com.

Defective Cell Phones Recalled

jmcooper@jmcooperlaw.com (News Author)8855 — Mon, 01 Jun 2009 08:00:00 EST

In response to findings that its cell phones were unable to connect with emergency services when out of the range of their particular phone service providers (in violation of FCC rules), Samsung voluntarily recalled over 150,000 of its Jitterbug cell phones.

Samsung is offering purchasers of the phone a free software upgrade.

Over 16,000 Defective Bicycles Recalled

jmcooper@jmcooperlaw.com (News Author)8711 — Fri, 22 May 2009 08:00:00 EST

On May 19, Trek Bicycle, in conjunction with the Consumer Products Safety Commission (CPSC) announced that over 16,000 of its bicycles were being recalled after finding that its suspension was defective in that it was improperly aligned, which could cause the bicycle to crash.

Burn Hazard Prompts Recall of Defective Coffee Maker

jmcooper@jmcooperlaw.com (News Author)8712 — Fri, 22 May 2009 08:00:00 EST

Following 10 complaints that its coffee maker posed a burn hazard in that its drawer could open spontaneously - even while brewing the coffee - Illinois-based Bunn-O-Matic Corp. recently recalled over 35,000 of its Single Cup Pod Brewers.

For more information on this recall, consumers can contact Bunn via its website, www.bunn.com.

Fire Hazard Prompts Product Recall of Defective Specialty Candles

jmcooper@jmcooperlaw.com (News Author)8598 — Fri, 15 May 2009 08:00:00 EST

After receiving complaints that the glass enclosure for these candles was breaking, causing fires and serious property damage and other personal injuries, including cuts from the broken glass, roughly 7,000 DayNa Decker 16-ounce Botanika candles were recalled. Additional information about this defective product recall can be obtained via telephone at 888-872-0228; on the internet at http://www.cpsc.gov or http://www.daynadecker.com.

Driver Charged After Hit and Run of 12 Year-Old Bicyclist

jmcooper@jmcooperlaw.com (News Author)8599 — Fri, 15 May 2009 08:00:00 EST

A 21 year-old driver was charged with leaving the scene of a personal injury accident after his car came in contact with a 12 year-old boy that was riding a bicycle. Apparently, the driver continued on his way after observing that the 12 year-old get back up from the ground and start walking.

Children's Toy Necklace Kits Recalled For Dangerous Amounts of Lead

jmcooper@jmcooperlaw.com (News Author)8596 — Fri, 15 May 2009 08:00:00 EST

Although no complaints of personal injuries or lead ingestion have been received, the Consumer Products Safety Comission (CPSC) has announced the recall of nearly 3,000 of the Chinese-manufactured Abalone and Venetian Carnevale necklace craft kits, after it was discovered that they contained excessive amounts of lead. More information on the recall can be found at the CPSC's website at www.cspc.gov.

Handlebar Defect Leads to Massive Recall of Defective Bicycles

jmcooper@jmcooperlaw.com (News Author)8597 — Fri, 15 May 2009 08:00:00 EST

After receiving numerous complaints that the hinges on their bicycles' handleposts were breaking (which poses as a safety hazard to children), nearly 12,000 Dahon and REI Novara defective folding bicycles have been recalled. For additional information on this defective product recall, consumers can contact Dahon via telephone at 800-442-3511, or can obtain further information on this recall on the internet at http://www.dahon.com or http://www.cpsc.gov.

FDA Recalls Defective Face Paint

jmcooper@jmcooperlaw.com (News Author)8570 — Wed, 13 May 2009 08:00:00 EST

On May 12, the Food and Drug Administration (FDA) issued a consumer safety warning to stop using children's face paint after it received several complaints of adverse reactions to the face paint, including skin irritation, burning, swelling, itchiness and rashes.

According to the FDA, a preliminary investigation of these face paints found that they contained unsafe levels of mold spores and/or yeast.

If you, or anyone you know has suffered an adverse reaction to these face paints, it should be reported to the FDA at http://www.fda.gov/medwatch.

Defective Paint Sprayers Recalled

jmcooper@jmcooperlaw.com (News Author)8518 — Mon, 11 May 2009 08:00:00 EST

After discovering that its power switch is liable to detach from its housing, and thereby posing a safety hazard in its propensity to cause electrical shocks, Wagner Spray Tech Corporation, in conjunction with the Consumer Products Safety Commission, recalled approximately 35,000 of its Chinese-made paint sprayers. For further information on this defective product recall, please visit www.wagnerspraytech.com or www.cpsc.gov.

Chinese-Manufactured Toasters Recalled Due to Safety Hazard

jmcooper@jmcooperlaw.com (News Author)8519 — Mon, 11 May 2009 08:00:00 EST

After finding that the electrical circuitry in their toasters was prone to come loose, causing concern about the danger of a fire or electrical shock, Haier America Trading Company recalled over 100,000 of its toasters. For more information on the recall of this defective fire hazard, please visit www.haieramerica.com or www.cpsc.gov..

800 Hooded Raincoats Recalled Due to Strangulation Hazard

jmcooper@jmcooperlaw.com (News Author)8501 — Sun, 10 May 2009 08:00:00 EST

On Friday, May 8, it was reported that approximately 800 girls' raincoats were recalled because the drawstring running across the hood of the coat apparently poses a choking and/or strangulation hazard. For more information about this defective product recall, please visit the Consumer Products Safety Commission's website at www.CPSC.gov, or www.pumpkinpatchusa.com.

$475,000 Settlement for Handyman Whose Hand Was Mangled in Trash Compactor

jmcooper@jmcooperlaw.com (News Author)8449 — Wed, 06 May 2009 08:00:00 EST

It was recently reported that a Manhattan, New York building owner settled the negligence and personal injury claim brought by its handyman after his hand was crushed in the building's trash compactor. According to the worker's lawsuit, someone from the building or the trash compactor service company disabled a safety feature on the compactor that was designed to prevent the compactor from working while its loading door was open, and while someone's hands (as occurred in this case) were exposed.

Interestingly, this case was seemingly cast as a straight negligence case rather than a defective products case. And the reason is relatively straightforward: the accident was not caused by any apparent defect in the product; rather, it was caused by someone's misuse of the product.

Defective Hairdryers Recalled Due to Electrocution Hazard

jmcooper@jmcooperlaw.com (News Author)8450 — Wed, 06 May 2009 08:00:00 EST

On April 29, the Consumer Products Safety Commission (CPSC), together with Universalink International Trading, announced the voluntary recall of approximately 3,000 Special and Narita Hair Dryers (the Special is model EX-1800, and the Narita is model TE-263), after it was discovered that these defective products were not fitted with the industry mandated safety feature designed to prevent users from suffering personal injuries, particularly electrocution, if the hair dryer accidentally comes into contact with, or falls into, water.

For return or refund information, Universalink International Trading can be reached free of charge at (866) 997-676.

Burberry Recalls Children's Clothing Due To Choking Hazards

jmcooper@jmcooperlaw.com (News Author)8458 — Wed, 06 May 2009 08:00:00 EST

After learning that some of the buttons on different lines of their children's apparel were prone to fall off, Burberry voluntarily recalled these products - despite the fact that they have thus far not received any complaints of personal injury resulting from this product defect.

Roughly 44,000 Floor Cleaners Recalled Due to Burn Hazard

jmcooper@jmcooperlaw.com (News Author)8442 — Tue, 05 May 2009 08:00:00 EST

After receiving numerous reports about their floor cleaners overheating due to defective wiring, Majestic has decided to recall its 360 line of floor cleaners in order to prevent any personal injuries, and thereby promote consumer safety. For more information regarding the recall of this apparently defective product, please visit www.Filterqueen.com or www.cpsc.gov.

FDA Recalls Nail Polish Remover That Causes Chemical Burns

jmcooper@jmcooperlaw.com (News Author)8412 — Sun, 03 May 2009 08:00:00 EST

On April 29, 2009, the FDA announced a nationwide recall of the Personal Care brand of nail polish remover which poses a safety hazard to consumers, more particularly, its propensity to cause chemical burns.

In order to receive a full refund for the purchaes of this defective product, you can call Personal Care Products at 1-248-258-1555.

Food Manufacturer Recalls Meat and Pasta That Was Not Inspected

jmcooper@jmcooperlaw.com (News Author)8327 — Tue, 28 Apr 2009 08:00:00 EST

On April 26, the Associated Press reported that a Michigan-based food manufacturer was forced to recall some of its food products because, contrary to the labeling on their food products, they were never inspected by the United States Department of Agriculture (USDA).

Nearly 3 Million Defective Rubber Exercise Balls Recalled

jmcooper@jmcooperlaw.com (News Author)8274 — Thu, 23 Apr 2009 08:00:00 EST

In response to nearly 50 consumer complaints of the product bursting, and in some cases, causing personal injuries, such as a fracture, the Consumer Products Safety Commission (CPSC) recently announced the voluntary recall of nearly 3 million rubberized fitness balls that were manufactured in China by Yonkers, New York based EB Brands. More information on the defective product recall is available at their website, www.ebbrands.com.

Defective Bicycles Recalled By CPSC

jmcooper@jmcooperlaw.com (News Author)8295 — Thu, 23 Apr 2009 08:00:00 EST

After receiving complaints about falls where bicycle riders sustained fractures that required corrective surgery, several Roubaix model bicycles were voluntarily recalled. Apparently, the bicycles with one rivet attached to the cable stop at the front of the bicycle were problematic, because they were prone to loosening, causing the rider to lose control of the bike and then either fall off the bike or have a biking accident.

Jury Awards Pedestrian Who Lost Leg in NYC Transit Bus Accident Over $27 Million

jmcooper@jmcooperlaw.com (News Author)8248 — Tue, 21 Apr 2009 08:00:00 EST

Last week, the New York Times reported that a woman who suffered a crush injury to her leg, which later resulted in the amputation of the leg, was awarded over $27 million by a Manhattan jury which faulted the Transit Authority driver for the pedestrian knock-down.

Defective Coffeemaker Recalled by CPSC

jmcooper@jmcooperlaw.com (News Author)8182 — Fri, 17 Apr 2009 08:00:00 EST

Recently, the Consumer Products Safety Commission announced that it has recalled the defective Signature Gourmet coffeemaker after receiving several complaints that the unit posed a fire hazard. Apparently, electrical problems in the coffeemaker cause it to ignite.

Defective Clothes Irons Recalled by Conair

jmcooper@jmcooperlaw.com (News Author)8060 — Wed, 08 Apr 2009 08:00:00 EST

It was recently reported that in conjunction with the U.S. Consumer Product and Safety Commission (CPSC), Conair has voluntarily recalled over 40,000 of its clothing irons after receiving complaints that the defective product units presented a fire hazard. In order to determine whether your unit qualifies for the recall and free replacement iron, you can visit Conair's website at www.Conair.com.

Dangerous Convertible Cribs Recalled by CPSC

jmcooper@jmcooperlaw.com (News Author)8054 — Mon, 06 Apr 2009 08:00:00 EST

Following the tragic death by suffocation of a child that was caught in the gap between the mesh siding and mattress of a convertible crib, the Consumer Products Safety Commission announced the recall of the Sunkids brand convertible crib, which has a nearly identical design. Like the crib involved in the aforementioned incident, the sides of the Sunkids rib are made out of expandable mesh that leaves a space between crib's mattress and its side, which if not securely zippered, can pose a suffocation hazard for young children. Additionally, this convertible crib poses a fall hazard for infants, because the convertible crib's drop side has demonstrated problems in becoming fully latched.

Industrial Workers' Personal Injury Claims Dismissed

jmcooper@jmcooperlaw.com (News Author)8057 — Mon, 06 Apr 2009 08:00:00 EST

In a recent decision, a court turned back severely injured workers, holding that their employers were immune from being sued directly for personal injuries by virtue of the Workers' Compensation Law. For more information on the interplay between contruction accidents, serious or grave personal injuries and the Workers' Compensation Laws, please see our article, Construction Site Injuries and New York's Labor Laws.

Salmonella Contaminated Dry Spices Recalled by FDA

jmcooper@jmcooperlaw.com (News Author)8059 — Mon, 06 Apr 2009 08:00:00 EST

In a joint investigation with the Center for Disease Contol and Prevention into a new salmonella outbreak, the FDA announced a recall of several brands of pepper. The FDA has recommended that all of these products, and those that contain them, should be thrown out, and that any utensils or other food equipment that has come into contact with them be thoroughly cleaned before being returned to use. For more information on this topic, please read our article, Three Avoidable Mistakes That Can Destroy Your Food Poisoning Lawsuit.

After Nearly 50 Deaths, Yamaha and CPSC Announce Recall of Defective Vehicles

jmcooper@jmcooperlaw.com (News Author)7993 — Wed, 01 Apr 2009 08:00:00 EST

On March 31, it was reported that Yamaha Motor Corp., in conjunction with the Consumer Products Safety Commission (CPSC) recalled three models of its defective two-passenger recreational vehicles for urgent repairs after they were involved in 46 deaths, and hundreds of other personal injuries since 2003. From the complaints received, it appears that the vast majority of the injuries were caused by rollovers - which even occurred at low speeds.

As part of its free repair offer, Yamaha has agreed to provide customers that bring in their Rhino vehicles for the repair with a free helmet. And as part of the recall, Yamaha has agreed to suspend all sales of these vehicles until the repairs are made.

$40 Million Award to Ford Rollover Accident Victim to Be Appealed

jmcooper@jmcooperlaw.com (News Author)8005 — Wed, 01 Apr 2009 08:00:00 EST

Not surprisingly, Ford has decided to appeal the $40 million verdict awarded to the passenger for the tragic personal injuries sustained by Thomas Smolinski when the Ford in which he was a passenger was involved in a one-vehicle rollover car accident.

Defective Chinese-Made Pacifiers Recalled Due to Choking Hazard

jmcooper@jmcooperlaw.com (News Author)7966 — Tue, 31 Mar 2009 08:00:00 EST

Earlier today, on March 31, 2009, it was reported that the Consumer Products Safety Commission ("CPSC") has announced the recall of nearly 3,000 Baby Necessities brand pacifiers after testing determined that the nipples were separating from the pacifier's base, and were therefore a choking hazard.

Salmonella-Tainted Pistachios Recalled By FDA

jmcooper@jmcooperlaw.com (News Author)7967 — Tue, 31 Mar 2009 08:00:00 EST

In a recent press release, the FDA has issued a warning to the public to avoid pistachios and other food products that may contain them after they received several complaints that consumers became ill. The FDA's investigation of this possibly new Salmonella outbreak is ongoing.

Since the FDA found that their pistachios may be contaminated, California-based Setton Pistachio of Terra Bella Inc, has recalled approximately 1 million pounds of its products.The FDA has announced that it intends to provide and post a searchable database of the recalled pistachio-linked products on its Web site.

Since Salmonella is a bacterial, rather than viral, process, the CDC recommends that it be treated with antibiotics. Additional information about the Three Fatal Mistakes that Can Destroy Your Food Poisoning Lawsuit is available in the articles section of our website.

Chemical Manufacturer Recalls Defective Chlorine Dispensers

jmcooper@jmcooperlaw.com (News Author)7916 — Fri, 27 Mar 2009 08:00:00 EST

Earlier today, it was reported that Arch Chemicals recalled some of its Pods chlorine pool treatment dispensers out of concern that it poses a consumer safety risk. Apparently, received complaints that two of the defective units had ruptured when placed into a pool of water.

Electrolux Voluntarily Recalls Over 300,000 Defective Vacuum Cleaners

jmcooper@jmcooperlaw.com (News Author)7921 — Fri, 27 Mar 2009 08:00:00 EST

Following more than 30 reports that the battery in its cordless stick vacuums had exploded, causing minor personal injuries to the consumer product's user, Electrolux has voluntarily recalled this defective Chinese-made product. According to the company and the Consumer Products Safety Commission, it appears that this product recall affects approximately 320,000 units.

Further information about this product recall can be obtained from the company's website.

24,000 Dangerous Children's High Chairs Recalled

jmcooper@jmcooperlaw.com (News Author)7909 — Thu, 26 Mar 2009 08:00:00 EST

In a joint effort, Fisher Price and the Consumer Products Safety Commission issued a recall for their 3 in 1 high chairs after it was discovered that the latch in the rear of the seat would become detached without warning, allowing the child inside the seat to fall backwards. In one instance, this safety hazard resulted in a child sustaining very serious personal injuries, as he fractured his skull.

Return or refund information for this defective product recall can be obtained by contacting Mattel.

Traumatic Brain Injury Suffered in Ski Accident Claims Celebrity Natasha Richardson's Life

jmcooper@jmcooperlaw.com (News Author)7791 — Thu, 19 Mar 2009 08:00:00 EST

Award-winning actress Natasha Richardson died yesterday in Manhattan's Lenox Hill Hospital from traumatic head and brain injuries she sustained in a tragic skiing accident. Although she initially appeared unhurt after falling and hitting her head, roughly one hour later she was urged to seek medical help when she began complaining that she was not feeling well. In a report covering this incident last night, NBC's chief medical correspondent discussed the diagnosis and treatment of traumatic brain injury.

GM Recalls Over 1.7 Million Defective Vehicles

jmcooper@jmcooperlaw.com (News Author)7789 — Thu, 19 Mar 2009 08:00:00 EST

Yesterday, it was reported that General Motors issued a massive recall for nearly 2 million from its 2009 line, covering several of its main models and brands, including Chevy, Saturn, Pontiac and GMC due to concerns about a faulty and defective gear shift, which would not engage when the vehicles are placed into "Park." Additionally, GM reported problems with its Hummer brand, which apparently have a defective fuel tank support strap, which poses a greater risk for car accidents or personal injuries.

Construction Worker Killed in Tragic Worksite Accident

jmcooper@jmcooperlaw.com (News Author)7790 — Thu, 19 Mar 2009 08:00:00 EST

Yesterday, in a tragic construction site accident, a 28 year-old construction worker from Staten Island was killed after falling 10 floors from a piece of plywoord at a construction project that was taking place on the Gansevoort Park Hotel located on Park Avenue South near 29th Street in Manhattan.

According to a statement issued by New York City's Department of Buildings, it seems that the construction worker was not wearing a safety harness, which is designed and intended to bind or anchor construction workers to the buildings they are working on, and thereby help prevent them from falling and sustaining either severe personal injuries, including traumatic brain injuries, other life threatening injuries or death. In the aftermath of the incident, the Department of Buildings issues several safety violations against the general contractor, and issued a stop-work order for the building project. In addition, the Department of Buildings indicated that they were investigating whether there was adequate safety netting at the worksite.

Officials said that the Buildings Department was looking into the safety netting in place at the site.

Chinese Made Holiday Lights Recalled

jmcooper@jmcooperlaw.com (News Author)7732 — Sun, 15 Mar 2009 08:00:00 EST

This past Friday, the Consumer Products Safety Commission (CPSC) issued yet another recall for a defectively made Chinese product. This time, it was for over 50,000 holiday lights which were apparently sold at discount retailers in New York and New Jersey. It seems that this particular product suffers from a defective design in that the wiring is too short, which presents as a fire hazard. For further information, please visit the CPSC's website at www.CPSC.gov.

Contaminated Peanut Products Still Causing Food Poisoning

jmcooper@jmcooperlaw.com (News Author)7731 — Sun, 15 Mar 2009 08:00:00 EST

In a report published at MSNBC's website last week, it was noted that despite the tremendous amount of media coverage regarding the massive recall of salmonella-tainted peanut products, new cases of food poisoning are still being reported because some people remain unaware of the defective product recall.

Recalled Peanut Products List Grows To Over 3,000

jmcooper@jmcooperlaw.com (News Author)7705 — Tue, 10 Mar 2009 08:00:00 EST

On Monday, it was reported that the list of products that have been recalled due to fears of contamination with salmonella has now exceeded 3,000 separate tainted and defective food products. Apparently, the FDA is recommending that consumers check their website on a regular basis for the most current data on recalled products.

New York Company Wins $17.5 Million in Breach of Contract, Trade Secret Theft Lawsuit

jmcooper@jmcooperlaw.com (News Author)7706 — Tue, 10 Mar 2009 08:00:00 EST

Yesterday, it was reported that following a trial, a Federal court concluded that a large French manufacturer, Ratier-Figeac, deliberately misappropriated the proprietary and trade secret information used by Manhattan-based small business ICE Corp. to develop a deicing propeller technology for military aircraft, and in the process, was not only liable to the New York company for breach of contract, but was also liable for punitive damages as well.

Food Manufacturer Forced to Close Down by FDA

jmcooper@jmcooperlaw.com (News Author)7673 — Mon, 09 Mar 2009 08:00:00 EST

Yesterday, it was reported that a soft tortilla manufacturer was compelled by the FDA to stop all production, distribution and sale of its products after it was determined that the manufacturer had repeatedly failed to abide by the Good Manufacturing Processes for food products.

Apparently, the FDA's inspection's of the manufacturing facility were prompted by reports of several children's complaints of gastrointestinal illness and/or food poisoning after consuming the company's contaminated or defective food products. For more information on how to protect the viability of a food poisoning case, please view our article here.

Defective Products Case Against Conveyor Manufacturer Dismissed by Jury

jmcooper@jmcooperlaw.com (News Author)7655 — Sun, 08 Mar 2009 08:00:00 EST

Recently, an upstate New York jury dismissed a plaintiff's claim that the manufacturer of a conveyor system was liable in strict products liability and negligence for the serious personal injuries that he suffered when his hand was caught in the space between an offloading tray and the conveyor's belt. Apparently, the jury felt that the manufacturer should not be held responsible for the dangerous condition because it did not install or make the offloading tray. For further analysis of this case, please view our blog post here.

Two Engineers Indicted for Trying to Steal Goodyear Tire's Trade Secrets

jmcooper@jmcooperlaw.com (News Author)7652 — Sat, 07 Mar 2009 08:00:00 EST

Yesterday, it was reported that two engineers from Tennessee stand accused of attempting to steal Goodyear Tire's proprietary and trade secret information used to manufacture their specialty tires. The case against the engineers, which also includes allegations of fraud, is being prosecuted by the Attorney General and U.S. Attorney in Tennessee.

Tyco Voluntarily Recalls Defective Healthcare Product

jmcooper@jmcooperlaw.com (News Author)7653 — Sat, 07 Mar 2009 08:00:00 EST

After receiving reports of 10 separate incidents regarding its modified tracheostomy tubes, wherein complaints were made that they were defective products because the changes made it more difficult to insert a catheter through the tube, Tyco Healthcare Group recalled some of these lots, and is replacing them free of charge.

Supreme Court Holds that FDA Approval Is Not a Bar to Private Lawsuits

jmcooper@jmcooperlaw.com (News Author)7624 — Thu, 05 Mar 2009 08:00:00 EST

In an important decision that was handed down by the United States Supreme Court on March 4, the High Court ruled that FDA approval of a drug, in and of itself, will not act as a bar to lawsuits by individual consumers who contend that the pharmaceuticals were unreasonably dangerous or defective products.

Listeria-Tainted Potato Products Voluntarily Recalled

jmcooper@jmcooperlaw.com (News Author)7611 — Wed, 04 Mar 2009 08:00:00 EST

A few weeks ago, Northern Star Company voluntarily recalled several of its potato hash brown products after laboratory testing found that one of its bags contained the listeria bacterium. Although no illnesses have been reported from anyone that consumed any of these products, should you wish to obtain further information on what mistakes to avoid ruining your food poisoning case, see our article here.

Another Bicycle in NYC to Memorialize Accident Victim

jmcooper@jmcooperlaw.com (News Author)7571 — Sun, 01 Mar 2009 08:00:00 EST

In yesterday's New York Times, there was an article describing how a middle-aged couple tends to a white bicycle that was placed at a Manhattan street corner to memorialize the location where their 24 year-old daughter was killed when a van collided with her bicycle. She died from her personal injuries, which included traumatic brain injuries, shortly thereafter.

Unfortunately, it appears that this couple's experience is not unique; bicycle advocates, in an effort to call greater attention to the fact that approximately 20 bike riding fatalities per year have occurred in New York City since 2005, have erected similar memorials across the City.

Defective Chinese-Made Tires Recalled By True Value

jmcooper@jmcooperlaw.com (News Author)7521 — Fri, 27 Feb 2009 08:00:00 EST

Earlier today, it was reported that yet another Chinese-made product has proven defective, rubber wheelbarrow tires, have been recalled due to safety concerns. Apparently, overinflation of the tire posed a safety hazard for the wheelbarrows' users.

Court Limits City of New York's Liability for Defective Condition

jmcooper@jmcooperlaw.com (News Author)7506 — Thu, 26 Feb 2009 08:00:00 EST

In a decision that was rendered on February 18 and published in today's New York Law Journal, Justice Robert Miller dismissed a negligence lawsuit that was brought against the City of New York, holding that the City could not be held liable for a defective condition where its sole nexus to the property is that it provided funding for the non-profit organization that was the tenant operating the premises.

Supermarket Issues Recall After Glass Shards Found in Ground Beef

jmcooper@jmcooperlaw.com (News Author)7410 — Sun, 22 Feb 2009 08:00:00 EST

Yesterday, it was reported that a Canadian grocer recalled a dangerous food product in response to a customer's complaint that they found a piece of glass in the ground beef. It appears that the glass may have come from a broken wall clock that fell in the vicinity of the meat department.

Wrongful Death Lawsuit Claims Unsafe Workplace Responsible for Miner's Death

jmcooper@jmcooperlaw.com (News Author)7458 — Sun, 22 Feb 2009 08:00:00 EST

Earlier today, it was reported that after the Mine Safety and Health Administration's investigation concluded that management had failed to properly support the Montana mineshaft's ceiling, causing the mine's collapse, the widow of one of the mine workers that was killed in accident sued for wrongful death, alleging that the mine company's negligence proximately caused the accident.

Chinese-Manufactured Child Safety Gates Recalled

jmcooper@jmcooperlaw.com (News Author)7386 — Mon, 16 Feb 2009 08:00:00 EST

Earlier today, it was reported that importer Dorel Juvenile Group has issued a voluntary product recall for its Chinese-made Safety 1st SmartLight stair gates due to concerns that the hinges that are designed to assure that the stair gate remains stationary can break, posing a safety hazard for children.

Homeowners Awarded Over $20 Million For Property Damage Caused by Hurricane

jmcooper@jmcooperlaw.com (News Author)7389 — Mon, 16 Feb 2009 08:00:00 EST

Earlier today, it was reported that Florida condominium owners were awarded over $20 million in their claim against their insurer to recover their property damages suffered when their buildings were condemned in the aftermath of Hurricane Wilma. Although the insurance company countered that the entire lawsuit should be barred because the plaintiffs had inflated their claims and were therefore guilty of fraud, the jury ultimately rejected the insurance company's claims.

Supplier Sues Putnam County Manufacturer for Breach of Contract, Defective Parts

jmcooper@jmcooperlaw.com (News Author)7382 — Sun, 15 Feb 2009 08:00:00 EST

Earlier today, it was reported that after some of the concrete anchors it had ordered failed a series of engineering tests, prompting Irwin Seating to cancel its agreement with Elmsford-based Screws and More and to go with a different supplier, Screws and More has sued anchor manufacturer Powers Fasteners, alleging that Powers is liable to them for the cancellation of its agreement wiht Irwin. The complaint contains several claims, including breach of warranty, breach of contract, fraud and negligence.

Westchester Supermarkets Caught Selling Expired Food Products

jmcooper@jmcooperlaw.com (News Author)7379 — Sun, 15 Feb 2009 08:00:00 EST

On Friday, the New York Times reported that several prominent chain supermarkets in Westchester, including Whole Food Market and Pathmark, were caught having well over 100 items on their shelves whose expiration dates had passed. As a result, they and roughly 20 other Westchester stores collectively incurred fines by Westchester county's Department of Consumer Protection of approximately $60,000.

Employee Fired for Abuse of Corporate Credit Card

jmcooper@jmcooperlaw.com (News Author)7376 — Sat, 14 Feb 2009 08:00:00 EST

Yesterday, the Associated Press reported that Principal Financial fired an employee who apparently accrued, without permission, over $100,000 in charges on one of its credit cards. For additional information on this employee theft, please click on the link to this story.

Continental Airlines Flight Crashes With Nearly 50 Passengers Aboard

jmcooper@jmcooperlaw.com (News Author)7356 — Fri, 13 Feb 2009 08:00:00 EST

In a tragic accident early this morning, a Continental Airlines flight crashed into a private house just outside Buffalo, New York, killing all of the nearly 50 passengers that were aboard the flight. Federal investigators are expected to begin to assess the cause for the crash this morning.

jmcooper@jmcooperlaw.com (News Author)7357 — Fri, 13 Feb 2009 08:00:00 EST

Earlier today, Teledyne Technologies, Inc., in conjunction with the FAA, voluntarily recalled some of the aircraft piston engine cylinders that it manufactured since November 2007, noting that they were defective products because cracks had been noted in over 30 of them after being in use for over 400 hours' flight time. Teledyne stated that it would be replacing the recalled engine cylinders free of cost.

Suppliers' Names Are Protected Trade Secret, Appeals Court Holds

jmcooper@jmcooperlaw.com (News Author)7359 — Fri, 13 Feb 2009 08:00:00 EST

Yesterday, a California appellate court affirmed a lower court ruling that barred a jeans manufacturer from learning the identity of Costco's suppliers, holding that this information is privileged, and a protected trade secret.

Pedestrian Killed After Being Caught and Dragged By Truck Through Queens and Brooklyn

jmcooper@jmcooperlaw.com (News Author)7343 — Wed, 11 Feb 2009 08:00:00 EST

Earlier today, after being summoned to the scene of a pedestrian knock-down in Corona, Queens by the driver of an SUV, the police were puzzled when they couldn't find the pedestrian at the accident scene. Unfortunately, the police later discovered that after being hit by the car, the pedestrian became caught on a passing van, whose driver remained oblivious to the fact that he was dragging the pedestrian across streets and highways, including the Grand Central Parkway and Van Wyck Expressway, until he reached Coney Island in Brooklyn.

Recession Alters Recipe for Small Biz Success

jmcooper@jmcooperlaw.com (News Author)7324 — Tue, 10 Feb 2009 08:00:00 EST

In a February 10 NY Times article (and as discussed in our blog), 3 veteran venture capitalists suggest that in order to compete - and thrive - in this economic downturn, small or start-up businesses cannot merely put out a great idea or product; their marketing platform must focus on how they can save their clients or consumers money.

Cop Injured in Fall Over Defective Fence Recovers Over $3 Million

jmcooper@jmcooperlaw.com (News Author)7313 — Mon, 09 Feb 2009 08:00:00 EST

Earlier today, it was reported that a cop who suffered severe personal injuries, including fractures to his ulna and femur, permanent nerve damage to his arm and a lacerated liver, was awarded over $3 million by a Bronx county jury, who found that the City of New York was negligent in their maintenance of the fence over which the plaintiff tripped and fell.

Government Bans Peanut Corporation of America From Federal Contracts For One Year

jmcooper@jmcooperlaw.com (News Author)7304 — Sun, 08 Feb 2009 08:00:00 EST

On February 6, it was reported that the government issued an order forbidding Peanut Corporation of America, whose Georgia-based plant has been identified as the source of the tainted food products and salmonella outbreak, from entering into any supply agreements with the U.S. Government for one year.

Tainted Peanut Products Were Knowingly Shipped, Government Claims

jmcooper@jmcooperlaw.com (News Author)7289 — Fri, 06 Feb 2009 08:00:00 EST

Earlier today, the New York Times reported that the Peanut Corporation of America now stands accused of deliberately shipping out its defective food products to schools notwithstanding its tacit knowledge that there were over 10 tests for salmonella from those batches came back with positive findings. For more information on the salmonella outbreak, click here.

Chinese-Manufactured Manicure Kits Recalled

jmcooper@jmcooperlaw.com (News Author)7277 — Thu, 05 Feb 2009 08:00:00 EST

Earlier today, it was reported that yet another Chinese-made product, a manicure kit, has been recalled due to concerns about its unsafe levels of toxic lead.

Teenage Bike Rider Awarded $8.3 Million After Losing Leg

jmcooper@jmcooperlaw.com (News Author)7278 — Thu, 05 Feb 2009 08:00:00 EST

Yesterday, it was reported that a California jury awarded a teenage boy over $8 million, finding that the local municipality was negligent and liable for the personal injuries he sustained when a car crashed into his bicycle, causing him to lose one of his legs after multiple surgeries attempting to save his leg were unsuccessful.

Sister Plant of Implicated Peanut Company Ran Uninspected for Years

jmcooper@jmcooperlaw.com (News Author)7252 — Tue, 03 Feb 2009 08:00:00 EST

In a frightening report issued earlier today by the Associated Press, it was revealed that a sister peanut processing plant of the one implicated in the evolving salmonella food poisoning story has operated without a governmental license or inspection for roughly four years.

FDA Begins Criminal Investigation Into Tainted Peanut Butter

jmcooper@jmcooperlaw.com (News Author)7228 — Sun, 01 Feb 2009 08:00:00 EST

Yesterday, the Washington Post reported that the FDA has commenced a criminal investigation of Peanut Corporation of America, whose tainted products have been identified as the source of the salmonella food poisoning outbreak.

Microsoft Claims That Former Employee Stole Its Trade Secrets

jmcooper@jmcooperlaw.com (News Author)7229 — Sun, 01 Feb 2009 08:00:00 EST

On Friday, January 30, PC World reported that Microsoft has sued a former employee, alleging that he took a job at Microsoft in 2005 for the sole purpose of secretly downloading Microsoft's proprietary and trade secret information for use in his patent infringement suit against Microsoft. In the lawsuit, Microsoft alleges that this former employee committed fraud, and that he is liable to Microsoft for unjust enrichment, as well as theft (i.e., misappropriation) of trade secrets.

Speeding Driver Loses Control of Car and Dies in Long Island Car Accident

jmcooper@jmcooperlaw.com (News Author)7223 — Sat, 31 Jan 2009 08:00:00 EST

After apparently losing control of his convertible sports car along the Wantagh Parkway on Long Island, the as yet unidentified driver crashed into a tree, demolishing the front of his car, and killing him in the process. Although the investigation of this car accident is still ongoing, it appears that the driver was speeding, and crashed after it overturned.

Peanut Butter Recall to Be Investigated by U.S. Congress

jmcooper@jmcooperlaw.com (News Author)7222 — Sat, 31 Jan 2009 08:00:00 EST

On January 29, it was reported that the United States Congress intends to conduct hearings as to the underlying reasons for the salmonella outbreak that has been linked to tainted and defective peanut butter products. The congressional hearings are expected to commence in mid-February.

15 Separate Investigations Confirm that Billions of Dollars Earmarked for Small Business Were Fraudulently Diverted to Big Business

jmcooper@jmcooperlaw.com (News Author)7192 — Thu, 29 Jan 2009 08:00:00 EST

As noted in one of the videos posted at our site, which recounts Lou Dobbs' investigation of fraud at the Small Business Administration, there are now several more reports indicating that large sums of money in the form of small business contracts were instead awarded to large businesses, including several corporations belonging to the Fortune 500, over the last several years. Even worse, rather than acknowledge the "oversight" (assuming it was a mere mistake rather than deliberate), the Justice Department refused Freedom of Information Requests for the identity of the firms that received the government sponsored contracts over a two year period. In fact, a report by the General Accounting Office concluded that over 10,000 contracts that were awarded were still unaccounted for.

Msn.com Publishes Q & A Guide to Identifying and Preventing Salmonella Poisoning

jmcooper@jmcooperlaw.com (News Author)7173 — Wed, 28 Jan 2009 08:00:00 EST

In conjunction with its coverage of the salmonella food poisoning outbreak that was linked to peanut butter, msnbc.com recently published at its website a terrific Q & A guide that was culled from the Center for Disease Control and Prevention which not only defines what salmonella is and its symptoms, but also educates the public about what steps to take to prevent this food poisoning-related illness from occurring in the first instance, or from spreading.

New Consumer Protection Laws for Children To Become Effective on February 10, 2009

jmcooper@jmcooperlaw.com (News Author)7141 — Tue, 27 Jan 2009 08:00:00 EST

In a January 8 press release, and in the wake of the wave of reports regarding lead-related problems pertaining to imported child products from China, the Consumer Products Safety Commission reported that after February 10 of this year, the law prohibits anyone from selling children’s products that have more than 600 ppm (parts per million) of lead. Importantly, many of these new regulations pertain only to newly manufactured (as opposed to used) products.

Dell, Microsoft and Network Solutions to Sponsor Small Business Summit on February 3, 2009

jmcooper@jmcooperlaw.com (News Author)7142 — Tue, 27 Jan 2009 08:00:00 EST

In a joint press release that was issued yesterday, several large and well-known corporations announced that they will be sponsoring the Small Business Summit at the Digital Sandbox. The purpose of the conference is two-fold: one, it allows the small businesses to learn directly from the larger ones how to keep existing clients and expand their client bases; and, two, it allows the larger companies to interact directly with the smaller companies to demonstrate how the smaller companies can benefit from the new technologies being offered by companies such as Microsoft and Dell.

CDC Reports that Nearly 56% of Salmonella Victims Are Under 18

jmcooper@jmcooperlaw.com (News Author)7145 — Tue, 27 Jan 2009 08:00:00 EST

In a frightening revelation made public earlier today, the Center for Disease Control announced that over half of those who have been afflicted with salmonella in this tainted peanut butter food poisoning outbreak are children 18 years of age or younger. According to the CDC, this number is puzzling because salmonella-related health problems are more commonly associated with the elderly rather than younger people, whose reported problems with salmonella have been drastically reduced with the advent of nut-free and peanut-free schools.

For additional information on how to protect your rights if you have been the victim of food poisoning, click here.

Police Investigation Clears Municipality from Negligence for Child That Was Electrocuted by Unlocked Utility Box

jmcooper@jmcooperlaw.com (News Author)7075 — Fri, 23 Jan 2009 08:00:00 EST

In a news story that broke yesterday, it was reported that the Mishawaka police's investigation found that a kindergartner was accidentally electrocuted when he climbed into an unlocked utility box. Although the report apparently indicated that several critical facts remained unknown, such as why the utility box was not only unlocked, but apparently didn't have any lock in the first instance, nevertheless, the report still found the municipality - which owns the utility box - was not negligent.

To see why I believe the result would be different under New York law, click here.

Parents.com Announces New Centralized Resource for Parents to Identify Recalled Products and Toys

jmcooper@jmcooperlaw.com (News Author)7070 — Fri, 23 Jan 2009 08:00:00 EST

In a press release that was issued earlier today, Parents.com announced that it has made available for the public a centralized on-line resource to identify dangerous or defective products or toys that have been recalled by the manufacturers. The new database will include recall information from the NHSTA as well as the CPSC.

Small Business Sues Suppliers to Recover $1.7 Million in Damages for Defective Lids

jmcooper@jmcooperlaw.com (News Author)6992 — Wed, 14 Jan 2009 08:00:00 EST

Yesterday, it was reported that Missouri-based SensoryEffects Flavor Company, an ice cream flavor company, brought a commercial lawsuit against two of its suppliers, because the lids that those companies provided were allegedly defective, and led to the contamination of SensoryEffect's products. According to the complaint, SensoryEffects has incurred significant costs and liabilities as a direct result of the defective lids, including replacement cost of the products and the storage costs of its inventory.

Some of the causes of action, or legal theories, upon which SensoryEffects seeks to recover in this commercial litigation include breach of implied warranty (which is a form of breach of contract), because Sensory claims that the lids weren't fit for their ordinary and foreseeable use.

Recall of Chinese-Made Cribs is Expanded

jmcooper@jmcooperlaw.com (News Author)6951 — Sun, 11 Jan 2009 08:00:00 EST

In conjunction with the Consumer Products Safety Commission, retailer Jardine Enterprises expanded its original recall of over 300,000 defective cribs due to concerns that the wooden slats could break and pose a strangulation hazard to infants. The original recall from June, 2008 covered 28 models of cribs; the expanded recall includes an additional 3 models of crib that were sold nationwide from 2004 through January, 2009.

Appeals Court Upholds $1.3 Million Verdict Against Insurer That Refused to Pay Claim

jmcooper@jmcooperlaw.com (News Author)6950 — Sat, 10 Jan 2009 08:00:00 EST

Earlier today, it was reported that an appellate court in San Diego affirmed a $1.3 Million jury award against an insurance company that wrongfully refused to pay out the full value on its homeowners' policy after a fire destroyed the policyholders' house in its entirety in 2003. In finding for the couple, the jury found that the insurance company had been guilty of fraud, breach of contract and bad faith.

Drivers Injured When Tiger Ran Across Jackie Robinson Parkway Settle Personal Injury Lawsuit

jmcooper@jmcooperlaw.com (News Author)6933 — Thu, 08 Jan 2009 08:00:00 EST

Earlier today, it was reported that two drivers settled their personal injury lawsuits that arose out of a chain collision that occurred in Brooklyn along the Jackie Robinson Parkway when a tiger slipped out of his cage and out of the control of his trainer. The cases settled for a total of $935,000.

24 Year-Old Passenger in Out of Control Car Recovers $250,000 For His Fractured Arm

jmcooper@jmcooperlaw.com (News Author)6934 — Thu, 08 Jan 2009 08:00:00 EST

On January 8, it was reported that a 24 year-old Staten Island man who was a passenger in a BMW that lost control and crashed into a pole, settled his personal injury lawsuit against the driver of the car. As a result of the accident, the plaintiff suffered a badly fractured arm that required surgical correction, including the insertion of a metal plate to stabilize the arm. In addition, he missed time from work due to his injuries.

Evenflo Issues Voluntary Recall of Over 90,000 High Chairs

jmcooper@jmcooperlaw.com (News Author)6851 — Wed, 07 Jan 2009 08:00:00 EST

In conjunction with the Consumer Products Safety Commission, Evenflo Company, Inc. of Ohio recalled roughly 95,000 of its Majestic™ High Chairs following over 100 complaints that the high chairs came apart suddenly and without warning, several of which resulted in injuries. In addition, there were over 1000 complaints about small component parts becoming dislodged from the high chairs that were found in small children's mouths and hands which presented a risk of choking. In order to ascertain if your high chair is subject to the recall, please visit the link below.

Pfizer Hit With $38 Million Verdict for Stealing Trade Secrets

jmcooper@jmcooperlaw.com (News Author)6789 — Wed, 07 Jan 2009 08:00:00 EST

On December 22, a California jury found that Pfizer improperly obtained tons of medical research from the non-profit Ischemia Research and Education Foundation, which it then used in its clinical trials of its product, Bextra. In interviews after the verdict was rendered, the foreperson noted that there was overwhelming evidence that Pfizer had secretly conspired with one of the Foundation's employees to obtain the Foundation's data without paying for it. Although the jury's verdict was for $38 million, the Court has still yet to decide the amount of punitive damages that will be assessed against Pfizer, which could triple that amount.

California Attorney Argues for Limiting Protection of Good Samaritan Laws

jmcooper@jmcooperlaw.com (News Author)6849 — Wed, 31 Dec 2008 08:00:00 EST

In an article that was published in the December 31 edition of the L.A. Times, attorney Mark Williams takes the controversial position that Good Samaritan laws, which insulate from liability anyone who in good faith attempts to help another in distress, should be limited rather than expanded. To read his op-ed piece in its entirety, or to read my take on it, please click on the links herein.

Los Angeles Judge Draws Line for Airline Negligence

jmcooper@jmcooperlaw.com (News Author)6834 — Tue, 30 Dec 2008 08:00:00 EST

Nintendo Sued Over Defective Adapter

jmcooper@jmcooperlaw.com (News Author)6796 — Wed, 24 Dec 2008 08:00:00 EST

On December 22 it was reported that Nintendo was sued for marketing and selling a defective power adapter, which overheated and purportedly caused a fire that resulted in serious property damage, including the loss of a home.

Japanese Bidet Manufacturer Pledges to Repair 82,000 of its Defective Products

jmcooper@jmcooperlaw.com (News Author)6713 — Wed, 24 Dec 2008 08:00:00 EST

After several of its electric bidets melted and started to give off smoke, Japanese toilet manufacturer Inax Corp. promised to repair nearly 82,000 of its units. According to Japan's Ministry of Economy, Trade and Industry, the problems were caused by water that leaks from the bidet's pump, causing the pump to rust and overheat.

Supreme Court Allows Deceptive Advertising Claims of 'Light' Cigarettes to Survive

jmcooper@jmcooperlaw.com (News Author)6714 — Wed, 24 Dec 2008 08:00:00 EST

In a surprising pro-consumer decision that was handed down on December 15, the Supreme Court held that cigarette manufacturers can be sued under individual state consumer protection laws for deceptively marketing their "light" and "low tar" cigarette brands. In its ruling, the Court rejected the cigarette manufacturers' argument that the state-based lawsuits were pre-empted by the Federal cigarette labeling law, which gave the Federal government, as opposed to State governments, the exclusive right to regulate cigarette advertising that involves health or smoking. Writing for the Court's majority, Justice Stevens distinguished the Federal labeling law from these cases, and stated that the law does not prevent smokers from suing the cigarette makers under state deceptive practices statutes.

Product Recalls: Electric Blowers

jmcooper@jmcooperlaw.com (News Author)6678 — Wed, 24 Dec 2008 08:00:00 EST

Last week, the Toro Company recalled approximately 900,000 of its Power Sweep electric blowers due to the propensity of the blower's impeller to break, which can cuase pieces of plastic to come flying out of the blower. For further details of the model numbers and serial numbers that have been recalled, you can click on this link to the CPSC's website.

Worker Injured on Defective Ladder Awarded $406,800

jmcooper@jmcooperlaw.com (News Author)6649 — Wed, 24 Dec 2008 08:00:00 EST

A man who fell 25 feet from a defective ladder that was bought at Home Depot store was awarded $406,800. The accident occurred when ladder's worn legs slid, causing the ladder to come crashing to the ground. In that case, the jury held that Home Depot was at fault for neglecting to to tell plaintiff that the lader had been in rental service for four years beforehand, in violation of their own company's policy.