Attorney Blog

Fire Hazard Prompts HP to Issue Product Recall of More Than 1 Million Fax Machines

jmcooper@jmcooperlaw.com (Blog Author)74548 — Sun, 05 Feb 2012 08:00:00 EST

If you're HP, this has got to hurt.
Last week, the CPSC, in conjunction with Hewlett Packard, jointly announced the recall of more than 1,000,000 of its fax machines across the western hemisphere, with over 900,000 units being recalled across the United States, and nearly 250,000 more north and south of the U.S.

The Problem: After receiving reports of several incidents of its fax machines catching fire, HP felt compelled to "pull the plug" and recall their fax machines. Apparently, HP determined that the overheating was caused by the failure of an internal electrical part of the fax machines.

Which Specific Products Were Recalled: HP fax 1040 and 1050 machines

One last note: Do you even have to guess where these recalled products were manufactured?
That's right: China.

Signed Release Form Doesn't Bar Soccer Injury Claim, Says NY Court

jmcooper@jmcooperlaw.com (Blog Author)74336 — Wed, 01 Feb 2012 08:00:00 EST

In a decision that was handed down on January 9 in the case of Gevorgyan v. The City of New York, et al., a New York County judge held that despite signing a release form that was part of his registration to play in this amateur soccer league, the plaintiff could still pursue his personal injury claim against New York City's Department of Parks and Recreation that occurred when he tripped and fell over a partially concealed defect in the turf.
Here's why:

As the court noted, "A voluntary participant in a sporting or recreational activity is deemed to consent to 'those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation,' this principle extends to those risks associated with the construction of the playing field and any open and obvious condition thereon. If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be."

On the other hand, however, some of New York's appellate courts have held that granting summary judgment is improper where there is an issue of fact as to whether or not a dangerous/defective condition on a playing field was hidden. See e.g. Guardino v. Kings Park School Dist., 300 AD2d 355 (2d Dept 2002); Cronson v. Town of North Hempstead, 245 AD2d 331 (2d Dept 1997) ; Henig v. Hofstra University, 160 AD2d 761 (2d Dept 1990).

NY State Can Be Held Liable For Defective Sidewalk, Court Holds

jmcooper@jmcooperlaw.com (Blog Author)72343 — Sun, 01 Jan 2012 08:00:00 EST

As noted in "How to Prove a Trip and Fall Case Against New York City," the central, critical factor in determining whether New York City can be held liable for a plaintiff's injuries resulting from a slip or trip and fall over a defective portion of sidewalk (assuming that the municipality is the owner of the abutting property) is whether the City had actual written notice of the defect beforehand.

This rule has been codified as NYC Administrative Code 7-210.

But what if the abutting property owner is New York State?

In an opinion dated December 20 in Locario v. State of New York, one of New York's appellate courts answered this question in the affirmative, holding that Section 7-210 has the force of a Local Law which the State assumed liability for under § 8 of the Court of Claims Act ("The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article").

How Failing to Preserve the Trial Record Ruined a NY Slip & Fall Case

jmcooper@jmcooperlaw.com (Blog Author)71643 — Mon, 19 Dec 2011 08:00:00 EST

When it comes to the attorneys' summations at the end of trial, New York's courts will tend to give attorneys rather wide latitude as to what they can say. The reason for this is straightforward: this is the persuasive argument part of the trial.

That said, this latitude is not unlimited, and there are comments that cross the lines of permissible advocacy. On the other hand, just because an attorney crosses that line doesn't inherently mean that the other side is automatically entitled to a new trial (or a "do-over," as my kids might say).
Consider the Appellate Division, First Department's recent decision in Chappotin v. City of New York. In that slip and fall case, the defense attorney made numerous inappropriate and inflammatory remarks. Here's a small sampling:

"[P]laintiff is a man who has played the system going on 15 years";

Noting that plaintiff had been on disability since 1995, "[H]ere's someone who doesn't have a concern about getting medical care. He doesn't have a concern about working."

"[T]his is someone who understands how to make his way in the world. He has come here with a story about falling here."

Given the gross impropriety of these remarks, you would assume that the plaintiff would be entitled to a new trial, right? Guess again.

Despite acknowledging the distastefulness of defendant's counsel's statements, the appellate court nevertheless reversed the trial court's order and reinstated the jury's verdict dismissing the case, because "plaintiff failed to object to 13 of the 15 comments of which he now complains ... [and therefore] failed to preserve his objections and the verdict should be reinstated."

Ignoring Order, NY Company Sold Mattresses Violating Flammability Laws

jmcooper@jmcooperlaw.com (Blog Author)71291 — Wed, 14 Dec 2011 08:00:00 EST

Have you ever wondered what would happen if a manufacturer dared to thumb its nose at the CPSC and a Federal judge and ignore a recall order?

Well, you don't need to wonder anymore.

Just last month, a Federal judge in New York issued a permanent injunction ordering Brooklyn Sleep Products Inc. and its president Francisco Chavez, to stop manufacturing, importing, renovating and selling mattresses until they provide evidence that their mattresses comply with federal flammability laws.

A copy of the Court's order can be viewed here.

Here's the real kicker:

If the firm fails to comply with the judge's order, it may be subject to penalties of $1,000 per day.

If you were wondering why the CPSC is making such a big deal about this manufacturer's admitted failure to test their mattresses for compliance with the Federal flammability requirements, consider the following:

According to the CPSC, nearly 1,000 people died in accidents that were associated with mattress fires over a 3-year period, from 2006 to 2008. Therefore, the CPSC enacted these flammability requirements, whose purpose is to slow the spread of a mattress fire, and thereby afford consumers more time to reach safety.

How NY"s New Rule in Negligent Supervision Cases Can Lead to Bad Results

jmcooper@jmcooperlaw.com (Blog Author)70960 — Sun, 11 Dec 2011 08:00:00 EST

Last year, in "NY Court Holds Child's Risky Behavior Doesn't Bar School Negligence Claim," we discussed the Court of Appeals' (the highest State court in New York) opinion in Trupia v. Lake George Central School District, which held that other than in the case of athletic or sporting activities, a court should not dismiss as a matter of law negligent supervision claims.

As a matter of pure legal theory, I think the rule is sound.

As a practical matter, however, it means that there may be cases that are extremely weak on liability that are allowed to survive and clog the courts' dockets.

I believe that the Nassau County case of Hallwood v. Daniels, a decision that was handed down on December 6 (and is scheduled to appear in tomorrow's edition of the New York Law Journal) is exactly one such case.

Here are the pertinent facts: the 15 year-old plaintiff and some friends were injured while jumping off the one-story roof of the defendant's garage and onto a nearby trampoline.

Yes, I think this case is ridiculous. And I doubt that I'm alone in that sentiment.

It just seems that there are some unintended consequences for this otherwise good law.

NY Appeals Court Holds City Liable for Slip & Fall on Black Ice

jmcooper@jmcooperlaw.com (Blog Author)70761 — Thu, 08 Dec 2011 08:00:00 EST

Following the Court of Appeals' ruling in San Marco v. Village/Town of Mount Kisco, 16 NY3d 111 (2010), it should come as no surprise that another plaintiff would seek to claim that a New York municipality could - and should - be held liable for a slip and fall that was caused by a fall on black ice. (For more on this decision, see "How to Prove New York City's Liability for Negligent Snow and Ice Removal").

I just didn't anticipate that it would happen so soon.

In Urban v. City of Albany, the plaintiff sustained personal injuries after falling on a patch of black ice on one of Albany's sidewalks. Predictably, the municipality moved for summary judgment on the grounds that it had no prior written notice of the defective condition. However, the plaintiff able to produce a picture of the condition taken only one day later, and was able to secure testimony from one of the municipality's employees who admitted that he had cleared that specific area from snow and ice shortly before the accident, which was augmented by a safety engineer's report averring that the municipality's improper placement of the snow caused it to re-freeze into black ice in the area of the plaintiff's fall.

Since this case was virtually identical to the San Marco case, it should come as no surprise that the appellate court reached the same result.

On the other hand, a word of caution is in order:

It seems rather clear that the chief reason that the plaintiff was able to prevail on appeal is because the plaintiff was very meticulous in compiling the underlying factual record (such as taking photographs within one day of the accident) and establishing a case for holding the municipality liable.

Why Federal Law Won't Help Your Bullying Case in NY

jmcooper@jmcooperlaw.com (Blog Author)69803 — Sun, 27 Nov 2011 08:00:00 EST

Just over a year ago, I wrote about whether a school can be held liable for bullying under New York law. At the time, I noted my skepticism about the prospects of success for a bullying claim that was predicated on a violation of the victim's constitutional rights. And now, in last week's New York Law Journal, Illann Maazel, Esq. published an excellent article discussing that particular issue in depth.

In his article entitled Bullying, Schools and the Constitution, Maazel notes that the Due Process Clause actually affords very little, if any, protection to victims of bullying. Indeed, one Supreme Court justice has stated that "[I]t is perhaps odd that the state's in loco parentis role permits schools to restrain the constitutional rights of children in the name of safety, without imposing any minimal constitutional duty to keep students safe."

In fact, Maazel asserts, "In many circuits, it is apparently constitutionally permissible for a public school teacher to do nothing while a child is beaten in class by another student on a daily basis, at least so long as the bullying is not motivated by race or another specific category strictly scrutinized under the Equal Protection Clause."

That is scary indeed.

Presently, the following appears to be the law in the Second Circuit (where New York is located): unless the victim is subjected to harrassment due to his or her belonging to a constitutionally protected class, such as race, these claims will fail. The challenges to such a claim don't even end there; the plaintiff will have to show that

"[T]he defendant's indifference was such that the defendant intended the discrimination to occur…. [D]eliberate indifference can be found when the defendant's response to known discrimination is clearly unreasonable in light of the known circumstances." Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140-41 (2d Cir. 1999).

Suffolk County Jury Denies Teen Injured in School Lacrosse Game

jmcooper@jmcooperlaw.com (Blog Author)68863 — Mon, 14 Nov 2011 08:00:00 EST

In a verdict that was handed down on October 4, a Suffolk County jury dismissed a middle school student's claim that his school was guilty of negligence for failing to assure that all of the participants in a lacrosse match were fitted with bottom caps. (As you may have guessed, he was struck by another player's stick that didn't have the rubberized bottom, and suffered a severe laceration as a result).

The defense to the school negligence case - which was relatively straightforward - was that the school had discharged its obligation by instructing the students not to use sticks that didn't have the bottom in place, by inspecting the sticks before handing them out to the students, and further directing the students to return any sticks whose bottom became detached.

Thus, it is certainly not surprising that the jury sided with the school in this case.

So, why is this case noteworthy?

Because it serves as a valuable reminder that even though some cases aren't disposed of via motion, that doesn't mean that they are viable cases for purposes of trial. Or, stated differently, surviving to the point of trial doesn't mean you have a winner of a case at trial.

Another Hot Coffee Burn Case in NY - and the Plaintiff Wins

jmcooper@jmcooperlaw.com (Blog Author)67769 — Sun, 30 Oct 2011 08:00:00 EST

As hard as it may be to believe, there is such a thing as a legitimate personal injury/negligence claim that involves the plaintiff - in this case a child - being burned by hot coffee; The mere fact that an incident involves hot coffee doesn't inherently mean that the claim is without merit, or "frivolous."

By the same token, that a child was awarded money under these circumstances doesn't in and of itself constitute concrete proof that our jury system is too flawed.

Let me explain.

In the last few weeks, a Staten Island court returned a $600,000 judgment in favor of a child who was injured at a social function when a 40-cup coffee urn that was placed rather precariously placed, tipped over onto a child, causing the child to suffer severe second and third-degree burns to her pelvic area, and required her to spend 10 days in a special burn unit of a New York hospital. Unlike the infamous McDonald's hot coffee case, even the defendant in this case did not contend that the child had anything to do with the placement of the hot coffee.

(Interestingly, the facts of this case are not that different than this case involving a burn from hot soup that we handled.)

And here's why this award has no bearing on our view of New York juries:

Since the caterer's insurer failed to answer the complaint in a timely manner, the award was made by a referree - not a jury - following a hearing on damages.

Child Hit in Head at Baseball Practice Didn't Assume Risk, Says Nassau Court

jmcooper@jmcooperlaw.com (Blog Author)67388 — Mon, 24 Oct 2011 08:00:00 EST

In "Split NY Appeals Court Finds School Pitcher Assumed Risk of Injury," we discussed how one split appeals court grappled with the issue of whether an injury claim stemming from an accident on a baseball field should be barred as a matter of law, based upon the argument that the participants in a sporting activity may assume the risk that they will be injured in the process.

And that rule makes sense.

On the other hand, the assumption of risk doctrine is not without limits; an important exception to this doctrine is where the plaintiff did not knowingly and voluntarily assume the risk.

And it is this exception to the rule that played a large part in a Nassau County trial judge's recent decision in the negligent supervision case of Perez v. Nassour (which appears in the printed edition of today's New York Law Journal) to deny the defendants' applications seeking to dismiss the cases against them.

In denying their motions, the judge stated as follows:

"Defendants have not established their entitlement to summary judgment. The infant plaintiff was only 10 years old and was participating in Little League and organized sports for the first time. When he got hurt, he was precisely where he was instructed to be doing exactly what he was instructed to do, per Coach Nassour's instructions. The practice location time and the equipment location was chosen by Coach Nassour as was the sequencing of events at the practice, all of which may have been violative of the applicable rules and may have exposed the infant-plaintiff to unassumed, concealed and increased risks."

Why We're Taking a School Assault Case to NY State's Highest Court

jmcooper@jmcooperlaw.com (Blog Author)66408 — Mon, 10 Oct 2011 08:00:00 EST

There may be times that you disagree completely with someone else's perspective, but that doesn't mean you can't respect their willingness to draw a line in the sand and stand up for their belief in the correctness of their position.

And that is precisely what has happened in this school assault case, in which my office represents a teenage boy who was beaten viciously by one of his schoolmates, to the point that his jaw needed to be wired shut and surgically repaired in two places. To be clear, the issue in this case is this:

When a school receives notice that one of its students poses a danger to another student that is in its custody, does the school have a duty to affirmatively notify the parents of the danger?

After winning in the trial court, a majority of the appeals court reversed, and dismissed the case because the majority did not want to impose an affirmative duty upon a school to inform a parent about a threat to a child, particularly where that threat later came to fruition off of school grounds.

The City of New York has argued that a finding for the plaintiff in this case might be perceived as an unwarranted expansion of a school's duties to its parent body. I feel rather strongly that this position is wrong on both legal and moral grounds, though.

In my view, the school can - and should - be held liable for negligent supervision, because it failed to alert my client to the known and imminent threat posed to her son by another student, and thereby deprived my client of the opportunity to use her own judgment on whether - or how - to protect her son from that danger.

And that's why we're appealing to the Court of Appeals.

But, at the same time, I respect the City's refusal to make any settlement offer.

One Reason That Manufacturers Will Promptly Recall a Defective Product

jmcooper@jmcooperlaw.com (Blog Author)66444 — Mon, 10 Oct 2011 08:00:00 EST

If you have a cynical streak, you may wonder why a product manufacturer would voluntarily recall one of its products - and do so sooner rather than later.

Fortunately, a recall of nearly 5,000 skis that was issued by Nordica USA last week answers that question. Under Federal law, manufacturers, distributors and retailers are required to report to the Consumer Products Safety Commission within 24 hours any information that

"reasonably support[s] the conclusion that a product contains a defect which could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard or ban enforced by the CPSC."

The penalty for non-compliance is rather steep - in this case, a civil penalty exceeding $200,000.

It is also important to note, however, that the mere fact that a recall was issued does not preclude the manufacturer from later asserting that its product was not defective in the context of a product liability law suit. In fact, the CPSC's own recall guidebook specifically provides as follows:

"Reporting a product to the Commission under section 15 does not automatically mean that the Commission will conclude that the product creates a substantial product hazard or that corrective action is necessary."

Why Proving Notice in a NYC Trip & Fall Case Isn't Easy

jmcooper@jmcooperlaw.com (Blog Author)66345 — Sun, 09 Oct 2011 08:00:00 EST

As noted elsewhere, such as in "How to Prove a Trip and Fall Case Against New York City," the most critical element needed to succeed on a trip and fall claim under New York law is demonstrating that the defendant either created the defective condition, or had notice of it, i.e., the defendant knew or had reason to know of the defect, but failed to correct it in a reasonable time.

When the area in question is under the City of New York's domain, such as the roadway, there is an additional hurdle that needs to be cleared: the City must be on written notice of the defect.

So, you would assume that once you can show that the defect was mapped out and handed to the City (as has been done by the Big Apple Pothole Corporation) you've satisfied that requirement, right?

Not so fast.

In Adamson v. City of New York, a decision that was handed down on September 27, New York's Appellate Division, Second Department held that it's not enough to have the defect marked on a map; it has to be from the most recent map. As the Court stated, "[F]or the purposes of prior written notice, 'the City properly requires that prior notice be traced to the most current Big Apple map on file, i.e., the map that is closest in time to the date a defect is alleged to have caused an accident" (Katz v City of New York, 87 NY2d at 244).

Kids Better Off Driving With Grandma Than With Mom or Dad, Study Says

jmcooper@jmcooperlaw.com (Blog Author)64808 — Thu, 15 Sep 2011 08:00:00 EST

A fascinating new study that was reported on in The New York Times found that in car accidents across the country, children were almost two times more likely to suffer injuries in a car accident when their parents were driving, as compared to if their grandparents were driving.

Not surprisingly, the study apparently did not arrive at any conclusive reason for this discrepancy. Stated differently, they just don't know why the numbers were so starkly different.

That's not to say that theories don't abound, such as cell phone use or texting while driving.

If you are interested in obtaining more information on the study, it appears in August's issue of the periodical journal Pediatrics.

Why It's Hard to Hold a Snow Removal Co. Liable in Negligence in NY

jmcooper@jmcooperlaw.com (Blog Author)64726 — Wed, 14 Sep 2011 08:00:00 EST

If you were under the distinct impression that your slip and fall case is a "homerun" once you learn the identity of the contractor who was hired to perform snow and ice removal at the place you fell, then you are sorely mistaken.

Here's why:

As a New York County trial court recently pointed out in Guiana v. Langdale Owners Corp., the general rule is that an independent contractor - such as the typical snow removal contractor - doesn't owe any duty to a third party that they have no connection to - such as the typical pedestrian.

There are three (3) exceptions to this rule:

"First, where one engaged affirmatively in discharging a contractual obligation launches a force or instrument of harm; second, where the plaintiff has suffered injury as a result of reasonable reliance upon defendant's continuing performance of a contractual obligation; and third, where the contracting party has entirely displaced the other party's duty to maintain the premises safely. (Church v. Callanan Industries, Inc., 99 NY2d 104 [2002])."

For additional information on this topic, please see "Defining a Snow Removal Contractor's Tort Liability Under New York Law."

The Best Defense to a Negligent Supervision Claim in New York

jmcooper@jmcooperlaw.com (Blog Author)64627 — Tue, 13 Sep 2011 08:00:00 EST

Sometimes, you read about a case, and when you see that it was dismissed, it is hardly surprising.

The negligent supervision case of Navarro v. City of New York is one such case.

In Navarro, New York's Appellate Division, First Department reversed the Bronx County trial court's ruling, and affirmatively dismissed the case after the jury rendered a verdict in the plaintiff's favor.

You may be wondering, why would a court go to such lengths, and in the process disturb a jury's verdict? The answer is clear: because there was not one, but two compelling reasons that the case required dismissal.

First, the plaintiff, who was struck in the face by a baseball bat that was being swung by a fellow student during warm-ups for a softball game, inherently assumed the risk of injury. (For more on this topic, please see "NY Court Holds Child's Risky Behavior Doesn't Bar School Negligence Claim").

Second, and more importantly, the plaintiff testified that only three to five seconds elapsed between her giving the bat to the other student and the bat's striking her face. To that end, "Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the [defendant school district] is warranted'" (Esponda v. City of New York, 62 AD3d 458, 460 [2009], quoting Convey v. City of Rye School Dist., 271 AD2d 154, 160 [2000]).

And it is the latter point that is often the most compelling defense to a negligent supervision claim: that even had the school or other caregiver done everything correctly, the accident would likely have occurred anyway.

NY Court: Worker Injured in Trip Over Cinder Block at Worksite Must Win

jmcooper@jmcooperlaw.com (Blog Author)64288 — Fri, 09 Sep 2011 08:00:00 EST

Granted, there are instances, such as where a construction worker trips over a doorknob, which I do not believe that New York's construction worker safety statutes (which are primarily Labor Law §§ 200, 240(1) and 241(6)).

"Why?" You ask. Because a doorknob isn't what I consider to be a construction-related hazard.

Of course, that raises the question of where the line between what is - and isn't - a construction-related hazard.

With that introduction, I don't think the Court's decision in this case, San Pietro v. NY Times Building, LLC, which appears in today's edition of the New York Law Journal, has that particular problem.

Here's why:

Because a 2 x 4 cinderblock is, at least to my mind, a construction-related hazard.

And that's why I have no problem with the Court's holding in this case that the defendant building owner could be held liable for this worker's injuries under Labor Law §241(6), because there was a violation of a specific Industrial Code section - namely §23-1.7(e)(2) - which requires that floors and platforms should be kept free of dirt and debris.

For additional information on this topic, please see "How Site Owners Can Be Held Absolutely Liable in a NY Construction Accident Case."

How One California Teen's School Assault Case Would Fare in New York

jmcooper@jmcooperlaw.com (Blog Author)63939 — Mon, 05 Sep 2011 08:00:00 EST

Truth be told, from the information gleaned in this case, I think that the assault against this teen that occurred on school grounds would likely face an uphill battle in any jurisdiction - let alone New York.

And here's why:

This was a targeted, criminal act by third parties - i.e., non-school personnel. Therefore, unless this student would be able to prove via competent evidence (rather than abject, rank speculation) that the school was aware (or should have been aware) of an impending danger to its student (the plaintiff), yet failed to take reasonable precautions to prevent this violence from coming to fruition on its grounds, the claim will probably fail.

As noted in "How a School Can (Not) Be Liable for an Assault Under New York Law," this is school assault law 101.

Why Filing an Insurance Claim for Irene in NY Will Probably Fail

jmcooper@jmcooperlaw.com (Blog Author)63473 — Mon, 29 Aug 2011 08:00:00 EST

If you're like me, and sustained some moderate - or more than moderate - property damage during Hurricane Irene over the past weekend, you might be considering filing a claim to recover some of your damages with your home insurer.

Before you do that, however, here are a few things to consider:

Your claim is unlikely to be covered under the "Hurricane" endorsement of your insurance policy - Here's why: the Hurricane endorsement of many homeowners' policies isn't triggered unless and until the recognized national weather services categorize the storm as a hurricane for at least 12 hours before and 12 hours after it hits your area. And in Irene's case, the storm was downgraded to a "Tropical Storm" before that criteria was met.
Unless your water damage was caused by a backup of the sewer system, your policy probably won't cover your losses - Most policies do not cover water damage that was caused by seepage through the foundation, because as foundations age, they settle and develop cracks that allow this to occur.
Unless you are certain that you purchased flood insurance, chances are you don't have it - naturally, you can (and should) check with your insurance broker, but considering that a flood insurance endorsement would likely double your annual insurance premium, if you had it, you would remember it.
Even if you have flood insurance, chances are it doesn't cover damage to your basement - this is a fine example of "fine print." Often, flood insurance only covers damage to the ground floor and above.

Technicality Splits NY Appeals Court in Right to New Negligence Trial

jmcooper@jmcooperlaw.com (Blog Author)63094 — Wed, 24 Aug 2011 08:00:00 EST

I really, really dislike it when courts elevate form over substance, particularly when it means that a case that should be resolved gets new lease on life, and the outcome is highly unlikely to be any different the next time around.

Yet, that is precisely what may be occurring in Holstein v. Community Gen. Hosp. of Greater Syracuse. In this case, which arises out of medical negligence, the defendant lost at trial, and now seeks another bite at the proverbial apple because in response to his attorney's request that the jury be polled, i.e., asked individually whether they agreed with the overall verdict (which in this case was unanimous), the Court stated "Jury be polled, they have signed. They each have individually signed." The defendant's attorney responded, "Okay. All right. Thank you."

Although a majority of the appeals court (rightly, in my view) rejected this argument, two justices felt that an entirely new trial was warranted under these circumstances, holding that the right to poll the jury is essentially sacrosanct, and that the defendant's attorney's equivocal statement should not be construed as a waiver of that right.

But isn't it more than a bit absurd that everyone should have to go through an entire second trial when we know with certainty how that first jury held?

Why this School Negligence/Dog Attack Claim Would Fail in NY

jmcooper@jmcooperlaw.com (Blog Author)63100 — Wed, 24 Aug 2011 08:00:00 EST

This past Sunday, it was reported that a young woman settled her claim that she was mauled by a pack of dogs that had taken up residence in a local school yard in Fresno, California. Apparently, the maintenance staff of the school had piled up garbage and built up "a hotel for dogs," and although the school officials had been warned about it, the school ignored these warnings, and instead disclaimed any liability for the incident because the school did not own the dogs.

After the judge in the case refused to dismiss the school negligence claims in the case, and ruled that the case would go to the jury for determination, the school opted to settle the action.

Ironically, there is a signficant chance that the same result either would or could not have been achieved in New York. Here are a few reasons why:

First, the local authorities aren't necessarily liable for animal control - at least to the same degree as in California;
Second, under New York law, it is rather difficult to impose liability on a dog's owner for injuries inflicted by the dog. (For more information on this topic, please see "Why Proving a Dog Bite Case in New York Isn't Easy");
Third, I think New York's courts would find the causal connection between any act of building this "dog hotel" and the dog bite incident too attenuated to impose liability on the school for negligence, unless the plaintiff could prove that the school owed some special duty to the plaintiff (which did not appear to be the case here).

For additional information on when a New York school can be held liable in negligence, please see "How to Prove Your School Negligence Case Under New York Law."

Why Jury Verdict Reports From a NY Personal Injury Case May Be Misleading

jmcooper@jmcooperlaw.com (Blog Author)62525 — Wed, 17 Aug 2011 08:00:00 EST

As the drumbeat for tort reform sounds louder - almost by the day - one of the pillars of the argument lies in "runaway jury awards." And while I certainly agree that there are instances where it seems - at least at first blush - that the judicial system has failed to produce a rational result in a tort case, I also believe that this particular issue in the overall debate has been terribly overblown, and is, to a large extent, not grounded in fact.

There are several reasons for this, but in my mind, here are two of the most important ones:

The amount of the jury's award is often reduced by the court. This "little" fact almost never makes the news. And the reason should be relatively obvious: it doesn't make for good copy. On the other hand, a jury's supposed eye-whopping verdict certainly does.
When the verdict is extremely large, the plaintiff rarely, if ever, actually recovers the amount that he is awarded. Again, the reason for this should be fairly obvious as well: insurance. Very often, the collectible part of a judgment will be limited to the limits of the defendant's insurance policy. Stated differently, if you get a $15,000,000 judgment, but the defendant has a limited policy and no collectible assets, how much is that judgment actually worth?

So, in the interest of promoting an open and honest debate on the subject of tort reform, a good place to start would be candor regarding the true significance (or the lack thereof) of jury awards.

How One Student's Texting Led to a Bizarre School Negligence Claim

jmcooper@jmcooperlaw.com (Blog Author)62067 — Thu, 11 Aug 2011 08:00:00 EST

If you've read more than one of my articles regarding school negligence, it's no secret that I am all for holding schools accountable for their actions - or inaction - when they are negligent, and fail in their duty to stand in the parents shoes, and protect their students. But some people take the concept of school negligence way too far. And a lawsuit that was recently filed by a high school student's grandparents in Prince Albert in Canada is exactly one such case.

Apparently, after having confiscated the student's cell phone for texting during class, the principal read the message which indicated that the student had some information regarding a stolen car. The police were called, and they in turn pushed the student to respond to the message, which then led to their locating the stolen car.

Here's where it gets interesting.

The grandparents claim that their grandson has now been "blackballed," and therefore, they seek compensation for their need to drive him to a distant school to assure his well-being.

While I don't condone the principal prying into the student's private cell phone without good cause, I find it hard to sympathize with a teenager who feels threatened after having involvement - even if only tangentially - with a stolen vehicle. And I don't see how that rises to the level of school negligence, such that the school should be compelled to compensate him or his guardians for his poor choices.

NY Court: Proof of Last Inspection Needed to Defeat Slip & Fall Claim

jmcooper@jmcooperlaw.com (Blog Author)61873 — Wed, 10 Aug 2011 08:00:00 EST

Sometimes, decisions on a particular issue seem to come down in bunches. And that is exactly what seems to be happening regarding slip and fall claims in New York, and the defendants' motions to dismiss those claims.

To reiterate, here's the rule, as articulated in the August 4 opinion in Spector v. Cushman & Wakefield, Inc. by New York's Appellate Division, First Department (which covers Bronx and New York County):

"The injured plaintiff allegedly slipped on a patch of black ice on the sidewalk abutting Citibank's premises. Because Citibank did not refute plaintiffs' contention that the dangerous condition existed, it was required to establish that it did not cause or create the condition or have actual or constructive notice of it (see Lebron v Napa Realty Corp., 65 AD3d 436, 437 [2009]). Citibank has failed to meet its burden with respect to actual or constructive notice of the ice because it proffered no affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk or the sidewalk's condition before the accident."

To be clear, this decision does not mean that the plaintiff is out of the proverbial woods in terms of proving her case. As noted in "How to Win the Battle But Lose the War in a NY Slip/Trip & Fall Case," unlike at the dispositive motion stage - like the decision above - the plaintiff will be required to prove at trial that the defendant was negligent with respect to the maintenance of the area.

And very often, that is not such a simple thing to do.

Finding the Silver Lining in a Tragic Queens Car Accident

jmcooper@jmcooperlaw.com (Blog Author)61659 — Mon, 08 Aug 2011 08:00:00 EST

With all of the bad news circulating these days - and there seems to be far more than usual - this story of a Queens car accident that left a 10 year-old girl dead would almost seem to get lost in the shuffle, particularly after we lost nearly 30 of our brave soldiers over the weekend in Afghanistan.

In this case, a family was set to return to Australia when their van collided with a Nissan Sentra at the intersection of 34th Avenue and 31st Street in Astoria. As a result, the van overturned, and this innocent little girl was killed.

But here's the silver lining: immediately after the crash, which occurred shorly before 7 pm yesterday, over a dozen people who were in the area rushed to the van, pushed it back onto its wheels, and pulled the survivors to safety.

I am proud to say that my fellow New Yorkers can be pretty amazing when people are in need.

Injury Claim by Construction Worker Who Tripped Over Doorknob Survives

jmcooper@jmcooperlaw.com (Blog Author)61568 — Fri, 05 Aug 2011 08:00:00 EST

I have to admit, I don't quite understand why a trip and fall incident like this warrants special statutory protection under New York's Labor Law section 241(6), such that a defendant should be held liable as a matter of law simply by virtue of the accident's occurrence. (This statutory section allows for liability to attach if the plaintiff establishes that the defendant violated a particular provision of the Industrial Code. For additional information on this topic, please see "How to Prove a Construction Site Accident Case in New York").

In Montes v. Collins Enterprises, a construction worker fell over a doorknob that was left lying on the floor of a project he was working on, and as a result, sustained serious personal injuries.

Following the conclusion of discovery, the defendants moved for summary judgment, seeking dismissal of the plaintiff's claims, on the grounds that the plaintiff's claims did not fall within the ambit of the worker safety statutes.

In denying the defendants' motion, however, the New York County court stated as follows:

"Industrial Code §23-1.7(e) is meant to protect workers from tripping hazards while working. Subsection 2 specifically enumerates four types of items that workers may fall over: debris, dirt, tools, and materials. While it is clear that a doorknob is not dirt or a tool, it could be considered debris or a material. The drafters of the statute sought to prevent tripping and a round doorknob in the middle of a room may be deemed a tripping hazard by a jury, which is consistent with the intent of the regulation."

Offered Full Damages for Defective Dryer, NY Insurer Still Says No

jmcooper@jmcooperlaw.com (Blog Author)61197 — Mon, 01 Aug 2011 08:00:00 EST

This case is absolutely absurd. And fortunately, the judge refused to go along with it.

In a defective products decision that is scheduled to be published in tomorrow's edition of the New York Law Journal, the manufacturer of a defective clothes dryer offered to pay the entire amount of damages paid out by the plaintiff insurance company (in excess of $200,000) to one of its insureds when the insured's home burned down as the result of a fire caused by the defective dryer.

In fact, the manufacturer, Electrolux, offered to pay the statutory interest on the claim as well.

The insurer would be thrilled at the settlement offer and the prospect of putting the case to rest, right?

Wrong.

The insurer refused to accept the settlement offer of 100% of what they asked for; they were actually angered by the settlement offer. They wanted "their day in court."

But the judge refused to go along with the insurer, stating, "[The insurer] is correct that the Court cannot force it to accept Electrolux's offer, but neither can [the insurer] force this Court to waste its time trying a case that is effectively in default."

It is truly sad and disturbing that some people have lost perspective on what our judicial system is supposed to achieve: a civil venue and system for resolving our disputes. It is not - nor was it ever designed to be - a soapbox.

And the insurer's notion that they would waste court and juror time and taxpayer money so the world could hear their story is downright offensive.

After Bullied Student Retaliates, High School Reponds by Expelling Him

jmcooper@jmcooperlaw.com (Blog Author)61031 — Sun, 31 Jul 2011 08:00:00 EST

If this story is true - and, I must admit, this student's version of events certainly sounds credible - this may be one of the more disturbing stories about school bullying that I've heard.

In a case that was reported in Baltimore last week, a high school student was apparently expelled from his school just prior to graduation, because after years of being tormented both physically and emotionally for being a "book worm" with a nervous habit, and having the school repeatedly ignore his calls for help, this student finally responded to two of his attackers by picking up a screwdriver and threatening: "I've had enough. If you leave me alone, I'll leave you alone."

The school's response: they expelled the student who was being bullied; the other students - it seems - were left alone.

To be sure, a student who threatens other students with a screwdriver should be severely disciplined - and perhaps expelled. On the other hand, it also appears that he has now been victimized again - but this time by the educational institution itself rather than its student body; in effect, the school has chosen to penalize this student yet again for the school's own negligence in failing to adopt and enfoce a zero tolerance policy for bullying.

Stated differently, it seems very clear that the school - had it been discharging its responsibility to this student's safety properly, this incident very well might not have occurred. And for that reason - and on policy grounds - I think that the school should be deemed negligent as a matter of law.

Construction Worker Falls from Ladder at Brooklyn Site, Seriously Hurt

jmcooper@jmcooperlaw.com (Blog Author)60473 — Mon, 25 Jul 2011 08:00:00 EST

In what appears to be a textbook case of a worksite safety statute violation, earlier today it was reported that a worker fell over 30 feet into a pit at a construction site located in the Cobble Hill section of Brooklyn. According to news reports, he remains in critical condition.

Some of the comments published in response to this news story were more than a bit unkind; without any apparent further knowledge as to who was involved or how the accident actually occurred, one person opined that this was likely a "Non-Union Work site which are prone for accidents and lack safety procedures to protect pedestrians and workers alike."

Leaving aside the manifest impropriety of such a remark, it behooves us to remember that the legislature, in its wisdom, specifically crafted worker safety statutes for worksites for precisely this reason: to make sure that workers are furnished with all necessary safety equipment, and in particular, to guard against gravity-related hazards.

For additional information on this topic, please see "How to Prove a Construction Site Accident Case in New York."

Even After Concrete Slab Collapses, Killing Student, School Stays Open

jmcooper@jmcooperlaw.com (Blog Author)60351 — Sun, 24 Jul 2011 08:00:00 EST

Although our school system leaves a lot to be desired, there is no question that it is vastly better than those in other parts of the world. I'm not talking about from an education standpoint; I'm talking from a student safety standpoint.

Earlier today, it was reported that a slab collapsed beneath two 5 year-old students at a school in India, leaving one of the girls seriously injured, and the second dead. Apparently, numerous complaints had been lodged with the school about its deplorable state of disrepair, and the manifest danger that it posed to the students. In other words, the school and/or the school district was negligent. (For more on this topic, please see "How to Prove Your School Negligence Case Under New York Law").

But that's not even the worst part of this story.

No one has closed the school down to make sure it's safe for students to return.

And that would never happen here.

School Teacher Gives Children Needle to Share to Draw Blood

jmcooper@jmcooperlaw.com (Blog Author)60261 — Fri, 22 Jul 2011 08:00:00 EST

This is horrifying.

In a news story that was reported earlier today, a primary school teacher allowed his students to share a needle for the purpose of drawing blood. Apparently, the teacher is a diabetic, and the school children were fascinated by how he would check his blood glucose level by drawing blood from his finger. He then encouraged them to share a needle when pricking themselves.

Recognizing the manifest health concern that this posed, the Education Department notified the parents of these children, and asked them to get those children tested for possible blood-related diseases. Here's one other aspect to the story that I find rather disturbing: the teacher wasn't fired.

While I understand that we should be leery of depriving someone of their livelihood, the primary and paramount concern is always the children's safety - or at least it should be. And, even giving this teacher the benefit of the doubt, this lapse of judgment is, to be blunt, way too big to be allowed to continue teaching in a classroom.

Brooklyn Car Accident Case Highlights Importance of Photos

jmcooper@jmcooperlaw.com (Blog Author)60198 — Thu, 21 Jul 2011 08:00:00 EST

One of the cardinal rules following a car accident in New York is to make sure that you get photographs of the damage to the respective vehicles before they are repaired. And the reason for this is relatively straightforward: they are some of the best evidence you can have to demonstrate not only the severity of the impact between the vehicles, but are extremely valuable in helping to re-create how the accident actually occurred.

In the Kings County property damage case of Yarmish v. Scharf, which appears in tomorrow's edition of the New York Law Journal, this principle came front and center. In that case, the hearing officer presiding over the case was called upon to determine which party's version of events regarding the car crash was more credible. In reaching her decision, Judicial Hearing Officer Nadelson stated the following:

"With the exception of some scratch marks at the back end of plaintiff's minivan near the right rear wheel, the photos offered by both parties do not depict any noticeable impact on the right rear door. Both sets of photos, however, do portray a major impact on the right front door preceding the door handle. That does not comport with [plaintiff]'s testimony that plaintiff's van was already three-quarters into the right lane when the vehicles collided. Rather, the court is more inclined towards [defendant]'s testimony that the vehicles were in somewhat of a 'v' shape at impact and there was no interaction with the back of plaintiff's car."

Why It's Hard to Win a Brain Injury Case in New York

jmcooper@jmcooperlaw.com (Blog Author)60102 — Wed, 20 Jul 2011 08:00:00 EST

I just came across a story involving a Connecticut teen who has sued her school, accusing the school of negligence, for a traumatic brain injury that she claims she suffered when hit in the head with a tennis ball during gym class. According to the lawsuit, it appears that the gym teacher set up a makeshift game of indoor baseball, where the students used a tennis racket and tennis ball, and the students were told to play at close range, and without any safety equipment.

One blogger was particularly harsh in his criticism of this girl and the lawsuit that she brought. And while I think a lot of his comments weren't terribly constructive (or appropriate), the underlying theme and platform for the following comment he made should not be quickly discarded. As he put it: "[D]id you get hit with a tennis ball or do a tour of duty in Afghanistan?"

Simply put, a trial lawyer in New York, or probably almost anywhere right now must recognize the skepticism with which much of the public views claims of brain injury, if for no other reason than it is often something that is harder to visualize or prove than say, a broken bone or, G-d forbid, a missing limb.

Split NY Appeals Court Finds School Pitcher Assumed Risk of Injury

jmcooper@jmcooperlaw.com (Blog Author)59790 — Sun, 17 Jul 2011 08:00:00 EST

Sometimes, no matter which way you go in a case, you're going to be left with troubling ramifications. Therefore, it is not surprising that in Bukowski v. Clarkson University, a decision in a school negligence case that was handed down on July 14 by one of New York's appellate courts, resulted in a 3-2 split decision, with nearly half the court opining that this sports injury case should not have been dismissed.

In this case, the plaintiff was a freshman at Clarkson University, and was asked to pitch batting practice at an indoor facility, without the benefit of a protective "L" screen, and in poor lighting. What happened next is fairly predictable: he was seriously injured when a ball was hit right back at him, and into his face.

At trial, the lower court dismissed the plaintiff's case - before it was even submitted for the jury's consideration - finding that no rational jury could find in the plaintiff's favor because he had knowingly assumed this open and obvious risk of injury associated with pitching batting practice. The majority of the appeals court agreed, and further found that there was insufficient evidence to show that he was compelled to pitch without the protective screen (for more on this topic, please see "When Assumption of the Risk is Not a Valid Defense in NY").

While overall, I agree with the majority in this case, this decision is not without a major drawback: schools will have less incentive to make sure that all appropriate safety measures are taken to protect their student-athletes.

Why This School Accident Case Wouldn't Survive in New York

jmcooper@jmcooperlaw.com (Blog Author)59691 — Fri, 15 Jul 2011 08:00:00 EST

Sometimes, regardless of the jurisdiction, the result will likely turn out the same.

Which is exactly what seems to be in this school negligence case, which involved a teenager's slip and fall on a puddle of water at her school. Despite needed corrective surgery for the ligament damage to her knee - which all but destroyed her dreams of joining an elite unit of the Army, an appeals judge recently dismissed her school negligence, finding that the school had taken reasonable precautions to prevent the hallway from becoming wet and dangerous during inclement weather, and therefore, they could not be held liable in negligence for her injuries.

It is almost a near certainty that the same result would have occurred had this accident and lawsuit been brought in New York, because under New York law, the school is only held to the same standard of care as a reasonably prudent parent under the same circumstances (for more on this topic, please see "How to Prove Your School Negligence Case Under New York Law"). And the plaintiff would be required to show that the school either knew, or should have known about this dangerous wet condition in the hallway, but that the school failed to clean it up or otherwise remedy the condition in a reasonable amount of time - a truly difficult thing to prove.

To Defeat a NY Slip & Fall Claim, Denying Defect Isn't Enough

jmcooper@jmcooperlaw.com (Blog Author)59498 — Wed, 13 Jul 2011 08:00:00 EST

Sometimes it's worthwhile to revisit an important lesson.

So, at the risk of redundancy, here goes.

If a property owner has been sued in negligence due to a slip and fall accident that resulted in personal injuries, there are often a number of ways that this defendant can secure dismissal from the case prior to trial - particularly given that plaintiffs often have difficulty establishing that the defendant either created the defective condition, or knew or should have known about the condition, but did not remedy the condition in a timely fashion. (As you may recall, this is called the doctrine of actual or constructive notice).

So you might be inclined to believe that a defendant can be excused, or dismissed, from the case by merely denying that he had any role in creating the defect, and had no knowledge of it, right?

Wrong.

As a Bronx County judge in Aponte v. Mohegan Apartments Assoc. reminded us in a June 30 opinion that is scheduled to appear in tomorrow's edition of the New York Law Journal,

"To meet their initial burden regarding lack of notice, the defendants must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell (see Nugent v. 1235 Concourse Tenants Corporation, et al., 83 A.D.3d 532, 920 N.Y.S.2d 660 [App Div 1st Dept 2011]; Sabalza v. Salgado, 2011 WL 2183978 (App Div 1st Dept), 2011 N.Y. Slip Op. 04732; Cignarella v. Anjoe-A.J. Market Inc., 68 A.D.3d 560, 561, 890 N.Y.S.2d 542 [App Div 1st Dept 2009]; Porco v. Marshall's Department Stores, 30 A.D.3d 284, 285, 817 N.Y.S.2d 268 [App Div 1st Dept 2006])."

How NY School Districts Can Be Liable for Off Premises Bus Accidents

jmcooper@jmcooperlaw.com (Blog Author)59502 — Wed, 13 Jul 2011 08:00:00 EST

In a tragic incident that occurred in October of last year in Florida, a 17 year-old high school student was seriously injured when a passing schoolbus while he was walking home from school. This accident turned into somewhat of a lightning rod for parents in the school district, because they have been complaiing for years that the route home is unsafe for students, because there is inadequate safety lighting, and this poor lighting was apparently a contributing factor to the accident.

But how would this incident play out under New York law?

In a similar case entitled, Ernest v. Red Creek Center School District, New York State's highest court held that where the school knows of a dangerous situation involving the buses - which in this case may have had to do (at least in part) with inadequate lighting - "is evidence that the type of accident that occurred in this case was foreseeable." Thus, it is certainly conceivable that under New York law, the same result, i.e., dismissal of the defendant's motion for summary judgment, would lie.

A Tough But Important Question: Are Rangers to Blame for Father's Death?

jmcooper@jmcooperlaw.com (Blog Author)59127 — Sun, 10 Jul 2011 08:00:00 EST

Although the emotions are still raw, sometimes very difficult questions have to be asked; and it's not for the reason you may think: it has nothing to do with whether the Stone family would theoretically have a viable legal action against Major League Baseball's Texas Rangers. Rather, the reason for the question is because - unfortunately - that may be the only way to determine if additional safety features at baseball parks are needed in order to protect the spectators against foreseeable dangers.

As noted in several news outlets, this was apparently not the first time that a fan had fallen over the railings in that ballpark and sustained serious injury. At the very least, shouldn't that at least raise the question as to whether this ballpark's safety structures are adequate?

Baseball Gloves Recalled Due to Mold Concerns

jmcooper@jmcooperlaw.com (Blog Author)58955 — Thu, 07 Jul 2011 08:00:00 EST

Yesterday, the CPSC announced the voluntary recall of a consumer product. No news there.

When I investigated a little further, I discovered that baseball gloves were being recalled. Naturally, when I saw that, my first assumption was that the webbing was defective.

Not only was I wrong, but - I hate to admit - the reason for this particular defective product recall caught me completely by surprise: baseball glove manufacturer Mizuno found that several of their gloves were prone to fostering the growth of some particularly nasty strains of toxic mold - including some that have been linked with respiratory infections and other illnesses, especially those with compromised immune systems.

CDC Predicts That On Average, 1 Pedestrian Will Be Killed Every 2 Hours

jmcooper@jmcooperlaw.com (Blog Author)58674 — Mon, 04 Jul 2011 08:00:00 EST

Yes, that's a very scary statistic. Not suprisingly, the data cited by the CDC in this publication reveals that of the nearly 120,000 reported pedestrian injuries for the year 2007, 36% of the pedestrians killed in these accidents were legally drunk.

You might think that's not such a signficant number. But you'd be terribly wrong: Nearly 5,000 pedestrians were killed in traffic crashes across the country in 2007.

Here are some other highlights of the study:

The highest incidence of pedestrian-related injuries involved pre-teens and teens;
The risk of a pedestrian dying from a motor vehicle crash generally increases with age.
Other than the elderly, those at the greatest risk for significant injury in a car crash are children because 1) their small size makes them harder for drivers to see; 2) children have greater difficulty judging accurately the speed and distances of passing vehicles.

Here's one final statistic that's worthy of mention: more children between the ages 5 and 14 have been killed as the result of car accidents than any other cause.

Following Several Burn Incidents, Pourable Fuel Gels Recalled

jmcooper@jmcooperlaw.com (Blog Author)57941 — Thu, 23 Jun 2011 08:00:00 EST

Granted, anyone (like me) who gets e-mails when the Consumer Products Safety Commission's issues a safety recall will - after a while - tend to ignore the recalls that are issued because they start to blend into the background. (Seriously, how many crib and blind recalls can you read about before your eyes start to glaze over?)

But every once in a while, there are reports of incidents secondary to the use of a product that are so frightening that they rouse you from your dulled senses and demand that you take notice. And the recent safety recall issued by Napa Home and Garden of its pourable fuel gels fits that bill to a "T."

Before issuing this recall, there were dozens of reported incidents of severe burns; the victims of these burns described how the product acted like napalm, in that the fire couldn't be extinguished in conventional ways such as by rolling on the floor. Two of these near-fatal burn incidents happened in New York; one of them occurred in Suffolk County, leaving a teenage boy comatose.

Fortunately, the CPSC is apparently not limiting its investigation to this particular manufacturer, and is targeting other companies manufcaturing similar, competing products.

School Has No Duty to Notify Parents of Danger to Child, Says NY Court

jmcooper@jmcooperlaw.com (Blog Author)57639 — Mon, 20 Jun 2011 08:00:00 EST

Any lawyer who takes on tough cases is going to lose every now and then. I'm no exception to this rule.

And that's exactly what happened in one of my school negligence cases, entitled Stephenson v. City of New York. In this case, my client was a Bronx middle school student who was assaulted by another student in school. At that time, the other student threatened my client, informing him that this fight wasn't over by any means - and that "he was going to get (the plaintiff) jumped." The school knew about this threat, but they chose never to inform either of these students' parents about the fight - or the threat. And two days later, the other student had some of his friends pin down my client, and they beat him until my client's jaw was fractured in two places, and needed surgical intervention to correct it.

The problem with the case was that this second assault happened off of school grounds.

And as a result, the school claimed it wasn't responsible (or, in legalese, "liable") for my client's injuries. I disagreed.

While the Bronx trial court denied the City's motion to dismiss the case, the Appellate Division, in a 3-2 decision that was rendered last Thursday, June 16, reversed.

I was contacted by the New York Law Journal for my response to the decision, and it is scheduled to appear in tomorrow's edition. Here's my quotation: "We feel rather strongly that the (majority opinion of the) Appellate Division was incorrect and we do not understand how a court can take the position that a school does not owe a duty to notify the parent of an imminent danger to one of its students that it had knowledge of."

Granted, this may be an uphill fight. But I believe that this issue is one of the important issues in school negligence cases under New York law. And I believe that my client is right.

Worksite Owner Maybe Liable for Dust That Falls Into Worker's Eye: NY Court

jmcooper@jmcooperlaw.com (Blog Author)57329 — Wed, 15 Jun 2011 08:00:00 EST

Granted, at first blush the trial court's decision in this construction site accident case in Galarza v. Lincoln Center for the Performing Arts seems bizarre. But if you read the statute's language carefully - which this judge did - it is not that difficult to understand why the court ruled the way it did, and refused to dismiss this worker's personal injury lawsuit.

In this case, the plaintiff was one of several workers that was employed to do demolition work at the defendant Lincoln Center for the Performing Arts. In the process of performing that work, some asbestos-laden dust fell into his eye, and as a result, he lost the vision he had in that eye.

My immediate, instinctive reaction when seeing this set of facts was that this case did not fall within the ambit of the worker safety statutes of New York's Labor Law. And, to a large extent, the court felt the same way, as it dismissed most of this worker's claims. But there was one claim that the court refused to dismiss: the plaintiff's claims grounded in Labor Law 240(1) - the statute that holds owners liable for worker's injuries that occur as the result of a gravity-related risk.

Strange, isn't it? I would have assumed that the gravity-related risks the statute was talking about dealt with - at a minimum - heavy things falling on people; but dirt? Really?

Consider the court's reasoning, though:

"Here, it is undisputed that a plaintiff was injured during the demolition, which is a protected activity under the statute (Labor Law §240 [1]; see also Martinez v. City of New York, 93 NY2d 322, 326 [1999]). It is also undisputed that plaintiff's work involved elevation-related risk since at the time of the accident, plaintiff was standing on a ladder below another worker who removed the panel from the 20-foot high ceiling and handed it down to plaintiff. Further, plaintiff was injured during the lowering of the panel, and thus, the falling object into plaintiff's eye arguably constitutes injury "related to the effects of gravity" (Suwareh v. State of New York. 24 AD3d 380, 381 [1st Dept 2005], quoting Rocovich, 78 NY2d at 514). And, the record supports the claim that no protective device designed to catch the falling pieces of asbestos dirt was used in connection with plaintiff's work."

Maybe the decision isn't so strange after all.

NY School Loses 5th Grader's Finger Tip - And Won't Admit Negligence

jmcooper@jmcooperlaw.com (Blog Author)56956 — Sun, 12 Jun 2011 08:00:00 EST

If you represent a New York school, I can appreciate and understand the need to protect it against lawsuits. But at some point, protecting the school should entail using common sense - and that means stepping up and taking some blame when you've clearly messed up.

The news story from this past Friday, June 10, is a perfect case in point. A fifth grade boy at PS 140 in Queens lost the tip of his finger when it got caught in the hinge of two heavy doors. In the chaos that followed, the student - correctly - ran to the nurse's office to get medical help. But no one from the school - teachers, principals, security or other staff - managed to locate the tip of the finger until the next day. And by that time, doctors determined that it was too late to re-attach the top of this student's finger from his dominant hand. And now, this fifth grader believes he will be unable to button his own shirt or write - at least not without great difficulty.

Under the circumstances, you might surmise that the school would do the rational thing in order to head off negative press and a sure-fire lawsuit: admit your mistake (read: school negligences) and invite the parents of this child in to try and make it right by them.

But here's what this school does instead:

"Department of Education spokeswoman Margie Feinberg would only confirm the accident took place."

That's just brilliant.

Following Trial, Suffolk Court Dismisses "Stick" and Fall Case

jmcooper@jmcooperlaw.com (Blog Author)56209 — Wed, 01 Jun 2011 08:00:00 EST

We've all heard of slip and fall accident cases. But not all of us have heard of stick and fall cases, have we?

In a decision that is scheduled to be published in tomorrow's edition of the New York Law Journal, a Suffolk County trial judge dismissed the negligence case of a woman who apparently tripped and fell while dancing at a lounge when her heel caught on the sticky side of a strip of tape that was being used to tack down wires to the dance floor.

In dismissing the case of Chiocchi v. Cat Lounge, Inc., the Court held that the plaintiff failed to prove the elements necessary for a successful trip and fall case. Here's the most relevant portion of the Court's decision:

"The Plaintiff's case in chief provided the court with sufficient evidence to render it's decision despite the Defendant not calling any witnesses. This case does not turn on whether the Plaintiff fell that night. The question is whether the Plaintiff proved any of the prongs of the tests set forth above. This Court finds that the Plaintiff has not.

"First, Plaintiff did not establish that Defendant created the alleged hazardous condition ... Second, Plaintiff did not establish that the Defendant had actual or constructive notice of the alleged condition."

Queens Worker Who Fell From Unsecured Ladder Wins Labor Law Claim

jmcooper@jmcooperlaw.com (Blog Author)56216 — Wed, 01 Jun 2011 08:00:00 EST

Although New York's courts have undoubtedly been trending towards the curtailment of owner liability for construction site accidents (see, e.g., "New York Construction Site Accidents: Why Fewer Cases Are Succeeding"), there are cases that still fall squarely within the ambit of the worker safety statutes, namely New York Labor Law sections 200, 240(1) and 241.

Katouchis v. Jeport Hotel Corp. is one such case.

In this construction site accident, the plaintiff was working for a painting contractor and sustained serious personal injuries when he fell roughly 13 feet to the floor from the defendant property owner's "A" frame ladder.

Here's the interesting point, however: apparently, the plaintiff had complained to the owners that this ladder was defective, but they refused to give him another ladder, indicating that this was the only available one, and insisted that he use it.

Therefore, it is no surprise that the court held in favor of the plaintiff, finding that the defendants had failed to fulfill their duty to protect their workers from gravity-related dangers, as required by Labor Law 240(1).

In Big Shift, NY Court Expands Police & EMS Liability for Car Accidents

jmcooper@jmcooperlaw.com (Blog Author)55912 — Fri, 27 May 2011 08:00:00 EST

It is a rare occasion that New York State's highest court alters its thinking on a statute that plays a crucial role in determining liability - or the lack thereof - for a car accident case. But that is precisely what happened in the recent decision of Kabir v. County of Monroe, 16 NY3d 217 (2011).

Previously, in "When a NY Police Officer Causes Your Auto Accident" and "What is the "Emergency Doctrine" in a New York Car Accident Case?" we explained the rule that as long a police officer is in the process of responding to a call - even a non-emergent one - the police officer is deemed as a matter of law to be involved in the "emergency operation" of a vehicle, which will allow his actions (or inaction) to be viewed and evaluated under the vastly more permissive "reckless disregard for the safety of others" standard set forth in VTL §1104(e) rather than ordinary negligence.

That's no longer the rule of law in New York.

Instead, the Court of Appeals has now held that "the reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104 (b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence."

Thus, in order to avail himself of the "reckless disregard" standard, the emergency driver must be engaged in one of the following activities:

1. Stopping, standing or parking illegally;

2. Proceeding past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;

3. Exceeding the maximum speed limits so long as he does not endanger life or property; or,

4. Disregarding the regulations "governing the directions of movement or turning in specified directions."

Although this rule seems to have some merit, I think that the dissent may have the better of the argument:

"The majority now ... preclud[es] emergency responders from obtaining the benefit of the reckless disregard standard unless-ironically-they violated one of the traffic rules listed in section 1104 (b). Police officers, firefighters or ambulance drivers who manage to obey traffic signals or travel within the speed limit are out of luck if they are involved in an accident. Their conduct will be assessed under the ordinary negligence standard, making it much easier for these "law abiding" emergency responders to be held liable for damages. Does this make sense?"

Given the strength of the dissent - and the powerful voice of emergency responders - I would be very surprised if a legislative amendment isn't proposed - if not passed - very soon.

Lead Paint Violation Prompts Product Recall of Toy Story 3 Bowling Game

jmcooper@jmcooperlaw.com (Blog Author)54584 — Fri, 06 May 2011 08:00:00 EST

After finding that its Toy Story 3 Bowling Game violated the lead paint levels allowed under the Federal guidelines, G.A. Gertmenian and Sons, LLC voluntarily recalled its product. But here's what disturbs me about this particular product recall:

The "new" permissible lead level requirements have been on the books for over two (2) years - since February 10, 2009.

Simply put, there is no excuse for this; these products - roughly 600 units - were almost certainly manufactured and put into the stream of commerce well after that law became effective. Under the circumstances, I do not understand why there is no stiffer penalty for this manufacturer than simply being compelled to issue a voluntary recall.

A picture of the recalled product with the identifying information is below.

Study Finds That More Than 25% of Kids Unbuckle Car Seats - While Car Is Moving

jmcooper@jmcooperlaw.com (Blog Author)54403 — Tue, 03 May 2011 08:00:00 EST

At first blush, this story looks downright scary.

In a study published by the Yale School of Medicine and reported on in Sunday's Business Week, researchers found that more than half of the kids in child safety seats had unbuckled them on their own - and of those kids, more than 3/4 of them had done so even while the car was still moving.

Two statistics render this information particularly frightening:

Car accidents are the leading cause of death in children between ages 4 and 8; and,
By unlocking the car seats while the car was in motion, the children increased their risk of serious injury by more than 3.5 times.

What is not made clear from this Business Week article, though, is a practical question and consideration:

Should car seats be made to prevent children from unbuckling the seats on their own, or is that more properly the province of the parent? Cast in a slightly different light, at what age - if any - is it appropriate for children to be able to unbuckle a car seat on their own?

In answering this question the following must be borne in mind: the target audience for many of these car seats (including yours truly) are parents who doing long-term car pool for their kids' school, and to the extent that the kids are able to buckle themselves in and let themselves out of the car seats, that may be deemed a tremendous convenience - provided that the children are old enough to appreciate the dangers of being unbuckled in a moving vehicle.

Finding Plaintiff's Claim Implausible, Brooklyn Jury Rejects Trip & Fall Claim

jmcooper@jmcooperlaw.com (Blog Author)54082 — Thu, 28 Apr 2011 08:00:00 EST

To be clear, I'm not saying that this particular plaintiff was making up his trip and fall claim. But a Brooklyn jury's recent dismissal of a trip and fall case should serve as a powerful reminder that juries are pretty smart - and they will throw out cases that they think are manufactured - or made up.

In Niles v. City of New York, the plaintiff claimed that he tripped and fell over a depression in a City sidewalk that had been created by a footprint. As a result of the fall, he suffered serious personal injuries, including a torn Achilles tendon. At trial, his attorney was even able to demonstrate that the City had prior written notice of that sidewalk defect.

But there was one "small" problem.

The jury apparently didn't believe that he fell on that area of sidewalk.

Instead, they believed the City attorney's contention that given the location where plaintiff had disembarked from the bus that was taking him to his destination, there was no logical reason that he would have passed by the area where he claimed he fell.

The result?

Claim dismissed.

Why This NY School Negligence Decision Is Really No Big Deal

jmcooper@jmcooperlaw.com (Blog Author)53302 — Mon, 18 Apr 2011 08:00:00 EST

On April 12, New York's Appellate Division, Second Department affirmed a Nassau County trial court's decision that held a public school negligent as a matter of law. At first blush, you might think that this is a crucial, ground-breaking decision - particularly given that the court seemed to be announcing a principle of the standard governing a school's duty to supervise its students under New York law. (For more on the general rule articulated by this decision, see "The Duty of a NY School to Supervise Its After School Programs").

But you'd be terribly mistaken.

Closer analysis reveals that this decision is very fact-specific; indeed, even a casual reading of the language of the court's decision confirms that the court held as it did because the teacher's negligence in failing to supervise her students in this case was particularly egregious.

In Nash v. Port Wash. Union Free School Dist., a teenage student sustained severe burns and personal injuries when another student triggered an explosion in his high school's science laboratory in the middle of an after school program at the school. This was an honors class with only 9 students; the science lab was equipped with lab tables,incubators, flow hoods, Bunsen burners and other equipment for scientific study and research. As part of their work involving cell culturing, the students were using ethyl alcohol. Another student, who was just "keeping the others company," was toying with a spark lighter that was on a nearby table, striking it several times (this student had a prior diagnosis of attention hyperactivity attention disorder (ADHD).

An explosion followed.

Perhaps the most disturbing thing about this case is that the school was forced to concede that the science teacher who had been assigned to supervise this class left the school premises in the middle of the class, leaving the students completely unsupervised. (This was against the school's own published rules, but, not surprisingly, the teacher contended at her deposition that this rule, albeit "on the books," was not generally followed).

The battle lines for this case were drawn as follows: the school contended that the case against it, which was grounded in negligent supervision, should be dismissed as a matter of law because the incident occurred at an after school program, and the school acted as a reasonably prudent person under the circumstances. The plaintiff, on the other hand, argued that the school should be awarded summary judgment because the school failed to act as a reasonably prudent parent.

In siding with the parents of the child, the appellate court stated as follows:

"We disagree with the school district's conclusion that these Facts rendered the program an extracurricular activity to which the less rigorous "reasonably prudent person" standard applied. The SRP was an academic class, for which the participants would receive a grade. It was not in any sense an "intramural or extracurricular school sport," which is the context in which the lower standard has generally been found to apply ...

"Additionally, while the accident occurred following the end of formal classes for the day, the SRP was allotted a time period and was contained in the third-party defendant's class schedule like any other class. Thus, under the particular circumstances presented here, the mere fact that the accident occurred following the formal end of classes for the day is without legal significance.

"With regard to the issue of whether the school district breached the applicable duty of care, the evidence establishes that Serfaty, and, by extension, the school district, exercised no supervision whatsoever over the plaintiff and the third-party defendant at the relevant time. While the third-party defendant was working on his project and the plaintiff was nearby, Serfaty left the premises, leaving the two students unattended in the lab. Thus, upon her departure, and at the time of the accident, the students were completely unsupervised. Accordingly, the conclusion is inescapable that the school district, by Serfaty, breached its duty.

"Moreover, ... Serfaty at the very least knew that there was ethyl alcohol present in the lab ... that she was aware of the presence of spark lighters in the lab, and that one may have been "laying around." Based on the facts known to Serfaty at the time, she was on notice of the dangerous conduct which would ultimately cause the plaintiff's injury."

NY Bicyclist's Claim He Was Blown From Bike By Helicopter Survives Dismissal

jmcooper@jmcooperlaw.com (Blog Author)53009 — Tue, 12 Apr 2011 08:00:00 EST

Okay, this case is ceratinly bizarre. Or at the very least, way out of the ordinary.

In Strasmich v. Liberty Helicopters, Inc. a New York County trial court decision that is scheduled to appear in tomorrow's edition of the New York Law Journal, the trial court held that a jury could find the defendant was negligent in failing to erect wind barriers or some other protective device in order to prevent personal injuries, like the ones that ultimately occurred in this case, from occurring.

To that end, the trial court held as follows:

"As the operator of the Heliport, it is foreseeable that landing helicopters utilizing the Heliport increase the speed and force of the natural winds in the area, it cannot be said that Air Pegasus has no duty to protect the public in the vicinity of the Heliport from the impact of such winds created by the helicopters. It has been stated, as a general proposition, that "A landowner generally must "exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises" (In re New York City Asbestos Litigation, 5 NY3d 486, 840 NE2d 115 [2005] citing Prosser and Keeton, Torts §57, at 387 [5th ed.]). Therefore, dismissal of plaintiff's claim that Air Pegasus failed to construct a blast fence to avoid such wind gusts, is denied ..

"[It] cannot be said that there is established clear and undisputed evidence to compel a conclusion, that the strong wind gusts were of an open and obvious nature to the plaintiff herein so as to obviate Air Pegasus's duty to provide proper warnings of same. Therefore, dismissal of such claim is denied."

How Failing to Investigate a NY Slip & Fall Case Can Prove Fatal to the Claim

jmcooper@jmcooperlaw.com (Blog Author)52916 — Mon, 11 Apr 2011 08:00:00 EST

What a difference a little bit of homework can make.

At the risk of redundancy (see, e.g., "Why It's So Important to Invetigate Your Child's Negligence Claim BEFORE You File Suit in NY"), if you fail to investigate the circumstances surrounding a personal injury action in New York before you file your initial legal papers - particularly a Notice of Claim against the City of New York or another quasi-governmental municipality - you do so at your own peril.

Consider the Manhattan slip and fall case of Mongelluzzo v. City of New York. In that case, the plaintiff sustained serious injuries to her ankle when she slipped and fell on a patch of ice that formed from water that had pooled in defective patch of New York City sidewalk over time. But that's not what the plaintiff's initial Notice of Claim said; rather, it merely asserted that she had slipped on "a piece of ice negligently allowed to remain on said sidewalk."

Recognizing belatedly - and well after the time within which the Notice of Claim was to be served - that this theory alone was likely insufficient to pin liability on the City, the plaintif sought to amend her Notice of Claim, contending that she had slipped and fallen on "ice negligently allowed to remain on said sidewalk and which was formed when water pooled in a crack in the sidewalk of which the City had prior written notice."

The Court didn't buy it. And here's why:

""General Municipal Law Section 50-e(6) notice of claim amendment provision merely permits correction of good faith, non-prejudicial, technical mistakes, defects or omissions, not substantive changes in the theory of liability." See Mahase v. Manhattan & Bronx Surface Tr. Operating Auth., 3 A.D.3d 410 (lst Dept 2004). "Any amendment that creates a new theory of liability is not within [GML 50-e(6)]'s purview."

8th Grader Sets Classmate's Pants on Fire; So Why Did School Wait to Report It?

jmcooper@jmcooperlaw.com (Blog Author)52653 — Wed, 06 Apr 2011 08:00:00 EST

This school violence incident that was reported on today involving a junior high school in Pennsylvania is troubling on many levels. On the one hand, you have an eighth grade student who finds a lighter in a school bathroom, and then, while the rest of the class is watching a video, takes it upon himself to light a fellow student's pants on fire.

And the school didn't report the incident to the police until the next day.

To be sure, the mere fact that it would enter anyone's mind to undertake such an offensive and violent action is downright frightening. But the school's lack of response to this incident is - on some level - perhaps even greater cause for concern, and here's why:

The school was apparently looking out for its own self interest before that of its students.

I don't believe that the school didn't think that this incident was serious; that would be patently absurd. Rather, the only reason I can divine for the school's failure to report this incident promptly was the school's fear that an investigation could have negative repercussions for the school, perhaps being found guilty of negligent supervision. And in so doing, they made something very clear: the school puts its students' safety second.

And that is simply unacceptable.

High School Pitcher's Brain Injury May Lead to Improved School Sports Safety

jmcooper@jmcooperlaw.com (Blog Author)52286 — Thu, 31 Mar 2011 08:00:00 EST

It's truly unfortunate, but it is also a stark reality; until someone gets seriously hurt, change is very hard to come by, particularly when it comes to consumer product safety - and even more specifically - when talking about school sports.

It looks like this story, which arose from a teenage baseball pitcher's tragic accident, may have a silver lining, and, relatively speaking, a happy ending.

Just over one year ago, a hitter on the opposing high school's baseball team hit a pitch right "back through the box," or, in other words, directly back at the pitcher. Since the ball was travelling at approximately 130 mph, Gunnar Sandberg had no chance. The ball hit Gunnar in the head, causing a fracture above his right ear. After his brain started to swell, doctors were forced to remove part of his skull, and to put Gunnar into a medically-induced coma in order to allow Gunnar's body to recover.

Although Easton-Bell, a well-known baseball equipment manufacturer had toyed with the idea of a pitcher's helmet for years, they never saw through the development of the product because there were relatively few incidents, and therefore, little demand for the product. Until now.

At a news conference that was held on the anniversary of the incident, March 11, 2011, Gunnar modeled Easton-Bell's prototype pitcher's helmet, which is lightweight, and designed to slip over a standard baseball cap. Gunnar's father Bjorn, who has worked hard to raise awareness of the danger, is hopeful that these safety helmets will become mandatory - both at the Little League and high school levels - and even at the professional level.

While it remains to be seen whether this will catch on, it seems fairly obvious - at least to me - that it should be required.

After Denying Student Safety Equipment, NY School Liable for Sports Injury Says Queens Court

jmcooper@jmcooperlaw.com (Blog Author)52192 — Wed, 30 Mar 2011 08:00:00 EST

Although in many - if not most - instances, a school will not be held liable for sports-related injuries (see, e.g., "Claim By Student Injured While Playing Football By School 'Bus Circle' May Proceed, Says NY Appeals Court"), there are some important exceptions to the general rule.

One such exception - such as when a school refuses a student's affirmative request for appropriate sports safety equipment - was the subject of a Queens trial court's decision in Shields v. City of New York, et al., which was handed down on March 23.

In denying the defendants' motion to dismiss the school negligence case, the Court's stated as follows:

"[A] school district remains under a duty to exercise ordinary reasonable care to protect student athletes involved in extracurricular sports from unreasonably increased risks" (Baker v. Briarcliff Sch. Dist., 205 A.D.2d 652, 655 [2d Dept. 1994] (internal citations omitted)). The affidavit of a fellow lacrosse coach that failure to provide safety equipment is a breach of sound coaching practices and the infant plaintiff's testimony that he had repeatedly requested safety equipment and was assured that it would be provided, raises a triable issue of fact as to the reasonableness of defendant's actions (See Cody v. Massapequa Union Free Sch. Dist. No. 23, 227 A.D.2d 368, 369 [2d Dept. 1996]; Baker, 205 A.D.2d at 652; see also Royal v. City of Syracuse, 309 A.D.2d 1284, 1285 [4th Dept. 2003]).

Nearly 60% of U.S. Drivers Have Felt "Sleepy" Behind the Wheel, New Study Finds

jmcooper@jmcooperlaw.com (Blog Author)51915 — Mon, 28 Mar 2011 08:00:00 EST

This is downright frightening.

While a National Highway Traffic Safety Administration concluded that nearly 40% of U.S. drivers felt "drowsy" while behind the wheel, this number is disputed by the National Sleep Foundation - who found that the actual number is roughly 1/3 higher - at nearly 60%.

Even at the lower number, this statistic is alarming - or should be. Leaving aside for the moment the dangers inherent in texting while driving - a scourge to be sure - the manifest danger posed by driving while drowsy (as highlighted by the recent Upstate New York bus crash) is certainly noteworthy as well.

Lest you think that simply drinking a cup of coffee or a can of Coke will do the trick, the study indicates that they aren't nearly effective enough.

Here are some short-term recommendations to avoid this danger:

Take a break every 2 hours or 100 miles;
Schedule trips for times that you would normally be awake;
If you start to feel drowsy while driving, pull over at a safe rest stop and take a nap.

New York State's Roads in Dire Condition - and Getting Worse, Says Research Report

jmcooper@jmcooperlaw.com (Blog Author)51911 — Sun, 27 Mar 2011 08:00:00 EST

A recent report released by Washington, D.C. based The Road Information Project ("TRIP") regarding their review of New York State's roadways included the following disturbing statistics:

25% of NYS's bridges are "functionally obsolete"; another 12% of the bridges are "structurally deficient";
More than 45% of NY's major roads are graded as either "mediocre" or "poor";
Nearly half of NY's city, or "urban" highways are congested.

Wondering why we should all care about these dire statistics? Here's why:

The unnecessary road repairs and traffic-related delays costs each NYS driver over $400 per year - aside from the effect it has on NY business' bottom line. (This is to say nothing of the increased likelihood of New York car accidents resulting from the roads' poor conditions.)

It gets worse.

The NYS Department of Transportation estimates that updating the State's roads will cost $175 billion - that's right - billion - over the next two decades. And the State doesn't have nearly enough money to cover the cost. In case you were wondering what happened with the gas taxes and automobile fees that were being collected since 1990, guess what happened to that money - the State spent it, using that money to pay back other day-to-day expenses that were incurred through other "questionable" spending policies. It is also rather safe to assume that part of the problem lay in the fact that the DOT had no commissioner heading the agency for over 1-1/2 years.

Let's hope the State figures out some solutions to this problem before the hole they've dug becomes even harder to climb out of.

NY's High Court Draws Distinction Between Duty of School Bus & Public Bus to Student

jmcooper@jmcooperlaw.com (Blog Author)51708 — Thu, 24 Mar 2011 08:00:00 EST

All buses are not created equal.

At least that's what New York State's highest court held in Smith v. Sherwood, in an opinion that was handed down just over one month ago.

In Smith, a 12 year-old child was hit by a passing car after disembarking from a public bus, and crossing in front of the bus into the adjoining lane of traffic. Apparently, the child was unable to see the passing car because his view of the oncoming car was obstructed by the bus.

At first blush, you might be inclined to think that the driver of the car - as well as the bus - should have been held liable for the accident because the bus didn't signal the other driver to stop while the child was still crossing in the street.

But you'd be wrong.

In reversing the lower appellate court's ruling that allowed the claim to proceed, the Court of Appeals stated as follows:

"In allowing the negligence claim to proceed, the Appellate Division relied, in part, on Sewar v Gagliardi Bros. Serv. (51 NY2d 752 [1980]). Sewar, however, involved a yellow school bus subject to the mandated use of specific safety equipment under Vehicle & Traffic Law § 375 (20). Such specially-equipped school buses are statutorily required to stop "with red signal lights flashing" until a passenger needing to cross a street does so (id. § 1174 [b]). Furthermore, a violation of Vehicle & Traffic Law § 1174 (b) may serve as the basis for a viable cause of action (see Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 382-383 [1995]; Van Gaasbeck v Webatuck Cent. School Dist. No. 1, 21 NY2d 239, 244-245 [1967]). Concomitantly, the Vehicle & Traffic Law provides that all operators of motor vehicles must stop when approaching a school bus with red flashing lights (see Vehicle & Traffic Law § 1174 [a]). The public bus that Derek rode, however, was not subject to these rules (see Vehicle & Traffic Law § 375 [20]) and its driver therefore did not have the legal authority (or the necessary safety equipment) to make other vehicles stop while Derek crossed the street. In the absence of the special duty that applies to yellow school buses, Centro and Gray are entitled to summary judgment dismissing the complaint against them."

In other words, yellow school buses have a special duty to their student riders to make other vehicles stop while the students cross the street; and if they fail to discharge that duty, the school bus can be held liable in negligence.

Public buses, on the other hand, have no such special duty. And that's why they aren't given the same safety equipment, including the fold-out stop sign and flashing lights.

(For additional information on this topic, please see "When the Duties of a Bus Operator to His Passengers End Under New York Law.")

After Worker Falls Through Elevator Ceiling, Queens Court Holds Contractor Absolutely Liable

jmcooper@jmcooperlaw.com (Blog Author)51565 — Tue, 22 Mar 2011 08:00:00 EST

There are still cases where New York's courts will hold a contractor absolutely liable for a construction site accident.

Here's one.

In a March 9 decision in Palaguibay v. 605 West 48th Street, LLC, the plaintiff was working in a mixed-use commercial/industrial building as a laborer, and was specifically charged with the responsibility of cutting a hole in the floor of an elevator motor room. In order to accomplish this task, it was necessary to use a blow torch.

As the blow torch was being used, however, the workers became worried about a potential explosion because the gas tank that was feeding the blow torch was located rather close to the workers. As a result, the plaintiff decided to move the gas tank out of the elevator - which was located beneath the motor room floor - and into a safer location one floor above where they were working.

Since plaintiff was not furnished with any safety equipment, there was nothing to break or stop his 15' fall when he slipped off the beam above the elevator car.

In rendering a decision finding the defendant completely at fault for the construction site accident as a matter of law, the Court held as follows:

"In the instant action, the defendant failed to provide a harness or safety belt which would have been attached to the plaintiff and then affixed to the wall or floor above so as to prevent him from slipping and then falling not only the three feet to the ceiling of the elevator cab, but through it to the floor of the cab for total of approximately fifteen feet (15'). The issue as to the use or presence of the ladder below the catwalk but above the elevator ceiling is irrelevant since it would not have provided safety as contemplated by Labor Law §240(1) since plaintiff fell from the catwalk itself."

New AAP Report Significantly Alters Car Seat Recommendations for Infants & Children

jmcooper@jmcooperlaw.com (Blog Author)51476 — Mon, 21 Mar 2011 08:00:00 EST

Earlier today, the American Academy of Pediatrics issued a report that they jointly authored with the National Highway Traffic Safety Administration that significantly changed established guidelines for children's car and booster seats.

Here are the highlights - (and your adolescent children aren't going to like it):


Old Guidlines	New Guidelines
Children should remain in rear-facing seat until age 1 and 20 lbs.	Children should remain in rear-facing seats until age 2, or as long as possible, i.e., the child reaches the seat's maximum height and weight for the rear-facing car seat
Children should remain in booster seats until age 8.	Booster seats should be used until the child reaches 4' 9" in height, possibly up to age 12.

As an initial matter, it is hard to argue against the report's emphasis on a child's physical size rather than the child's age (regarding the booster seats) in determining what the proper time is for a child to be eligible to sit in a regular car seat; it's actually common sense. (Although I do wonder why it took nearly ten years for these two agencies to sort that out.)

Second, while safety is, of course, a primary concern, this report does leave off a signficant issue: many cars that are currently on the market and/or already in use by parents may have trouble accommodating additional booster seats for those adolescent children.

Brooklyn Jury Finds City School Liable For Injury to Girl During Gym Class, Awards $2.5 Million

jmcooper@jmcooperlaw.com (Blog Author)51275 — Fri, 18 Mar 2011 08:00:00 EST

Recently a Kings County (that's Brooklyn) jury held a New York City school liable in negligence for the severe eye injuries sustained by a student during gym class, when a fellow student, who had been wielding a golf club nearby, struck the plaintiff in her eye, tearing her retina, and leaving her with what appears now to be permanently impaired vision.

A natural question you might ask is, "Under New York law, why should the school be held liable for the unsafe acts of a thrid party - in this case, a fellow student?" As noted elsewhere, such as ""Why Many (If Not Most) NY Playground Accident Lawsuits Are Dismissed," or "The Hardest Part of Proving a Playground Injury Case Under New York Law," a school must, as a general rule, be found to have had notice of the impending threat, yet failed to do undertake adequate protective measures, and thereby prevent the accident from occurring. This is far from an easy task.

In this particular case, there was evidence that the gym teacher had precious little experience with golfing, and failed to assure adeuaquate spacing between the students, before the defendant started swinging his golf club - and straight into plaintiff's eye. Therefore, in this case, the issue was apparently not so much having to do with "notice" Rather, in this case, it appears that the City actively created - or, at the least, was a substantial factor in creating - the danger complained of. (See, "Why Why Many (If Not Most) NY Playground Accident Lawsuits Are Dismissed,"supra).

And, as a result, the school gym injury and negligence case was allowed to go to the jury, which ultimately held in the plaintiff's favor.

Why Aren't New York Coach Buses Required to Have Seatbelts?

jmcooper@jmcooperlaw.com (Blog Author)51015 — Tue, 15 Mar 2011 08:00:00 EST

Saturday morning's tragic coach bus crash raises several questions, most important, how coach bus companies can - and must - assure that their drivers have thorough background checks, and are not impaired - whether through alcohol or simply being too tired - before they are allowed behind the wheel of a busload of passengers.

There is another troubling question that arises out of this tragedy: according to some eyewitnesses, the bus was apparently not equipped with safety belts.

Why? The answer may surprise you.

A 2002 study conducted by the National Highway Traffic Safety Administration concluded that on large buses, "lap belts appear to have little, if any, benefit in reducing serious-to-fatal injuries in severe frontal crashes. On the contrary, lap belts could increase the incidence of serious neck injuries and possibly abdominal injury among young passengers in severe frontal crashes."

As I'm sure you can imagine, money plays a significant factor in this equation as well, as the Congressional Research Service estimates that installing belts on school buses would add an additional $8,000 - $15,000 per bus.

I, for one, am unconvinced that the seat belts would increase the risk of injury over having no seat belt at all. I also think that the additional expense - even at the higher end of $15,000 - is money well-spent.

Student Injured While Playing Football By School "Bus Circle" May Proceed, Says NY Appeals Court

jmcooper@jmcooperlaw.com (Blog Author)50704 — Fri, 11 Mar 2011 08:00:00 EST

In our article written last April entitled "NY Court Holds Child's Risky Behavior Doesn't Bar School Negligence Claim," we took the opportunity to discuss a signficant decision from New York's highest State court on the issue of school negligence, which falls under the legal rubric of "negligent supervision."

From a series of recent decisions on the issue of school negligence (see, e.g., "NY Appeals Court: Assumption of Risk Doesn't Apply to Rollerblading on Sidewalk"), and how it dovetails with a student's assumption of the risks inherent in various physical activities, it seems clear that New York's courts are reluctant to dismiss these cases as a mater of law, presumably out of a concern of running afoul of the Court of Appeals' opinion in Trupia.

In a decision earlier today (March 10) in the school negligence case of Simmons v. Saugerties Cent. School Dist., another appellate court followed suit. In this case, the plaintiff-student was injured when he stepped into a deep hole that was near the bus circle - an area where students gathered to board the buses, while in the middle of playing a touch football game with some fellow students.

Although you might be inclined to think that the court should have dismissed the case on the grounds that the student "played at his own risk," the appeals court in this case saw it differently, holding:

"Risks inherent in a sport generally include "those . . . associated with the construction of the playing surface and any open and obvious condition on it" (Lincoln v Canastota Cent. School Dist., 53 AD3d 851, 852 [2008] [internal quotation marks and citations omitted]; accord McGrath v Shenendehowa Cent. School Dist., 76 AD3d 755, 756 [2010]; see Maddox v City of New York, 66 NY2d 270, 277 [1985]).

"Contrary to defendant's argument, the open and obvious nature of the large hole in the bus circle and plaintiff's allegedly long-standing knowledge of it does not bar inquiry into whether the allegedly dangerous condition resulted from defendant's negligent maintenance of its property (see Sykes v County of Erie, 94 NY2d at 913; Morgan v State of New York, 90 NY2d at 482, 488). Defendant misapprehends the scope of the primary assumption of risk doctrine in arguing that a voluntary participant in a sport or recreational activity consents to all defects in a playing field so long as the defects are either known to the plaintiff or open and obvious. The doctrine, as defined by the Court of Appeals, does not extend so far ... As that Court has emphasized, "[o]ur precedents do not go so far as to exculpate sporting facility owners of [the] ordinary type of alleged negligence" of failure to maintain their premises in good repair (id. at 488-489) ...

"[T]here are questions of fact regarding whether defendant's negligent maintenance of the bus circle "created a dangerous condition over and above the usual dangers that are inherent in the sport" of touch football."

NY Appeals Court: Assumption of Risk Doesn't Apply to Rollerblading on Sidewalk

jmcooper@jmcooperlaw.com (Blog Author)50700 — Thu, 10 Mar 2011 08:00:00 EST

Following the lead of its sister appellate court (see, "Rollerblader Didn't Assume Risk of Injury, Says NY Appeals Court"), New York's Appellate Division, First Department (which handles appeals from the courts in Bronx and Manhattan) recently held that the notion of "play at your own risk" (or, in legalese, "assumption of the risk") does not act as am inherent bar to a negligence claim in New York.

In Ashbourne v. City of New York, the plaintiff was injured while rollerblading after her skates got caught on a "rise" or "bump" in the sidewalk. In reversing the trial court's ruling that had dismissed the case, the appellate court stated as follows:

"Although plaintiff was rollerblading, an activity one could consider to be recreational and risky, this is not a case like Anand where plaintiff and defendant were participants in an organized sporting event. Plaintiff's leisurely rollerblading on a public sidewalk does not constitute a sponsored sporting event or recreational activity for the purpose of applying the assumption of risk doctrine any more than jogging on the sidewalk would. We simply cannot say, as a matter of law, that by engaging in a form of exercise, such as rollerblading or jogging on a public sidewalk, a plaintiff consents to the negligent maintenance of that sidewalk."

Why Capping Damages in Defective Products Cases is a Bad Idea (Hint: It's Not Putting More $ in Plaintiffs' Pockets)

jmcooper@jmcooperlaw.com (Blog Author)50352 — Sun, 06 Mar 2011 08:00:00 EST

As part of the larger debate regarding the placement of a cap on non-economic (i.e., pain and suffering) damages in medical malpractice cases, a similar suggestion has often followed: allowing the same thing in defective products cases.

To be sure, there is a compelling argument in favor of such a cap: without it, small to mid-size businesses that are importers, distributors or other middlemen in the chain of distribution of any consumer product would face the prospect of liability for significant damages if any downstream consumer was badly injured by a product - one that they didn't even manufacture. (This is to say nothing of the additional quality control costs that would necessarily be assumed by these middlemen in order to avoid the prospect of such a liability).

In my view, the other side of the coin is more compelling, and here's why: a cursory review of the product recalls issued over the past year confirms that well over 90% of these products are made overseas, in territories well beyond the jurisdictional reach of any injured end user of the products. As a result, the only ones who can exert any pressure at all on these manufacturers to make their products safer are those domestic companies who deal directly with the upstream distributors, and ultimately, the manufacturers themselves.

Perhaps I'm overly cynical, but here's my take in a nutshell: Medicine is a necessity; unsafe toys and consumer products are not. And the absence of a cap in these cases is the best disincentive, or insurance policy, we have against the importation of dangerous and insufficiently tested products.

Why Claim By 10 Year-Old Who Suffered Head Injuries in School Assault Would Likely Fail in NY

jmcooper@jmcooperlaw.com (Blog Author)50321 — Sat, 05 Mar 2011 08:00:00 EST

Yesterday, it was reported that a 10 year-old boy in England was hospitalized after being assaulted on a soccer field by some of his classmates in the middle of a soccer game. Apparently, after knocking him to the ground, a few of the boys continued to kick him in the head.

The sad truth is, that chances are if a school negligence claim were brought in New York, the case would probably fail.

Why?

Because from the account of this accident that has been reported, it appears that this child was not a known target before the soccer game began, and this was a spontaneous assault.

Here's why those facts are significant: Under New York law, it would be the parents' burden to prove that the school, in the proper exercise of its duty to the child, knew or should have known of the threat to the child, yet failed to act appropriately to prevent this assault from occurring. (For more on how to prove a school assault case under New York law, please see "Why this School Assault Case, Which Left Girl in a Coma, Would Fail in New York").

Why the Claim by Parents of Bullied H.S. School Who Suicided Might Survive in NY

jmcooper@jmcooperlaw.com (Blog Author)49394 — Sun, 20 Feb 2011 08:00:00 EST

This is truly a tragic story.

After transferring into a new high school at the beginning of a school year, a 16 year-old boy committed suicide at home, after more than 6 months of being subject to incessant bullying at the new school. The question is, how would this case fare if it were in New York?

A few months back, in "Can a School Be Held Liable for Bullying Under New York Law?", I set forth the general parameters for proving a school was negligent in allowing the bullying to continue that ultimately led to the student's injuries. Basically, the student's parents would need to demonstrate that the school knew - or should have known - about the problem, yet failed to take appropriate measures to prevent the incident from occurring (in legalese "notice").

In this case, there was apparently evidence that the school was on notice of the bullying problem, and failed to act appropriately. There is a second evidentiary hurdle that the parents would also need to clear, which is not obvious from the reports on this case: whether the parents were notified of the bullying issue by the school. This issue is of particular importance, especially given that the suicide occurred at home, rather than at school.

Rollerblader Didn't Assume Risk of Uneven Driveway, Says NY Appeals Court

jmcooper@jmcooperlaw.com (Blog Author)49267 — Fri, 18 Feb 2011 08:00:00 EST

About 1-1/2 years ago, I wrote about whether "Play at Your Own Risk" is a valid concept under New York law. In that article, I described how in many, if not most, circumstances, New York's courts will not bar completely a claim on these grounds (which, in legalese is called "primary assumption of risk") because New York is a comparative negligence state, which means that as a general rule, each party is supposed to bear its own proportionate share of responsibility for an accident.

Thus, it is not suprising that one of NY State's appellate courts reinstated a personal injury claim by a rollerblader who tripped and fell over a mis-leveled portion of driveway where it met with the curb and roadway, leaving a full 2" height differential.

In reversing the trial court's order dismissing the case, the Custodi v. Town of Amherst court's reasoning is instructive:

"[Defendant] established that plaintiff was an experienced rollerblader and that she was aware that tripping and falling are risks inherent in the activity, which are increased when rollerblading on uneven surfaces such as sidewalks ... [but] it cannot be said that the height differential between defendants' driveway apron and the curb was a "known, apparent or reasonably foreseeable consequence" of rollerblading on a paved roadway, sidewalk, or driveway (Turcotte, 68 NY2d at 439), nor can it be said "that plaintiff was aware of the [height differential] and the resultant risk" presented thereby (Lamey v Foley, 188 AD2d 157, 164). To the contrary, we conclude that the height differential between defendants' driveway apron and the curb " created a dangerous condition over and above the usual dangers that are inherent in the sport' " of rollerblading ...

"We cannot agree with defendants that the height differential between their driveway apron and the curb was an open and obvious condition and that they are thereby absolved of liability. It is well settled that "the open and obvious nature of the allegedly dangerous condition . . . does not negate the duty to maintain [the] premises in a reasonably safe condition but, [instead], bears only on the injured person's comparative fault."

After Assaulting Student & Causing Head Injury, Headmaster Defends Acts as "Unfortunate"

jmcooper@jmcooperlaw.com (Blog Author)48421 — Tue, 08 Feb 2011 08:00:00 EST

It's interesting how times have changed. I distinctly remember being handled a bit roughly by one of my elementary school's principals as a kid. And I wasn't alone. A lot of kids in my class had similar experiences. Undoubtedly, that was wrong. Terribly wrong.

But it never came anywhere near the school injury that happened last Friday in Bhupalpally.

According to a news report, the school headmaster physically dragged a student, causing the student to fall and sustain a head trauma that was sufficiently serious to require hospitalization.

And the reason for dragging the student? Because the student was trying to skip a class.

The headmaster explained that "it was an unfortunate incident," and further stated "I did not pull the student with intent. I didn't expect he would fall down and hurt himself."

Even giving this headmaster the benefit of the doubt (which he doesn't deserve), I don't see how he justifies manhandling a student. Put differently, how can a school justify keeping a headmaster that has assaulted one of its students? Wouldn't that amount to gross negligence by the school?

6 Year-Old Found Wandering Outside School Building Unsupervised

jmcooper@jmcooperlaw.com (Blog Author)48348 — Mon, 07 Feb 2011 08:00:00 EST

Earlier today, I came across a question posed by a parent as to whether they had a valid negligence claim against their child's school, who was (quite understandably) disturbed to learn that her 6 year-old child had been found wandering around outside of the school unsupervised - during school hours. Apparently, despite having 14 doors leading to the outside of the school building, none of the doors are alarmed - even though the school has children as young as 2-1/2 years old.

Unfortunately, as noted in a blog post written nearly one year ago entitled "Why Some NY Schools Can Get Away With Negligent Supervision," sometimes no positive change will come from a school's end of things following a near-tragedy.

How a Queens Man's Trip & Fall Claim Nearly Failed - Even Without Opposition

jmcooper@jmcooperlaw.com (Blog Author)48251 — Sun, 06 Feb 2011 08:00:00 EST

You can almost hear the sigh of relief from the plaintiff's attorneys after receiving the appellate court's decision in Gaudiello v. City of New York, a Queens County trip and fall case

Everything was going right - the plaintiff testified - clearly - that he tripped and fell over a defective sidewalk, and the defendants did not produce any witnesses to controvert his testimony. But then the jury came back with a verdict - for the DEFENSE.

How is that possible?

It turns out that the jury felt that defective condition was open and obvious, and therefore, the trip and fall accident wasn't the defendants' fault. Apparently, the jury was heavily influenced by the judge,who instructed the jury that "[a] pedestrian is charged with the responsibility of looking where they are going and is presumed and bound to see what by the proper use of their senses there is to see."

Fortunately for this plaintiff, the appellate court found that this instruction to the jury ("jury charge") was an incorrect application of the law, and therefore, he was entitled to a new trial. To the contrary, the court held, the correct application of the law would have been that if the jury felt the condition was open and obvious, that would not effectively bar plaintiff's claim; rather, that factor would be included in considering the degree of the plaintiff's relative fault for the accident. For additional information on this topic, please see "How NY Property Owners Can Be Liable Even for the Open and Obvious."

One of the Biggest Dangers of Going to Trial in a New York Car Accident Case

jmcooper@jmcooperlaw.com (Blog Author)48149 — Thu, 03 Feb 2011 08:00:00 EST

Sometimes, you can read a court's decision and, if for no other reason, it is extremely valuable as a reminder of a most important lesson. The January 20 decision that was rendered by a New York County trial court in Sourifman v. Amie Cab Corp. is precisely one such case.

First, some factual background is in order. In this case, the plaintiff suffered blunt force trauma to her head, a misalligned and fractured jaw and teeth when a Transit Authority bus collided with the cab in which she was a passenger. At trial, the jury heard the plaintiff's uncontroverted testimony about the exruciating pain she endured as the doctors re-set her jaw, just so it could have some mobility again.

Although the jury found the defendants responsible for this auto accident (which makes sense, given that the plaintiff was a mere passenger), you would also surmise that the jury would then award the plaintiff with a fair amount of damages, particularly given that her injuries regarding her fractured jaw and teeth were largely uncontested.

But you'd be terribly wrong.

The jury awarded her $13,000 for both her past pain and suffering as well as her future suffering and medical expenses. Even though the trial judge ordered that a new trial be held unless the parties stipulated to a higher number of $85,000 (which, in legalese, is referred to as "additur"), the essential lesson should not be lost: if you go to trial, there is always the risk that a New York jury will not award you what you believe (whether rightfully or wrongfully) is fair and just compensation for your personal injuries.

For additional information on this topic, please see "When Can a Trial Court Modify the Size of a Jury's Award Under NY Law?"

Why This School Assault Case, Which Left Girl in a Coma, Would Fail in New York

jmcooper@jmcooperlaw.com (Blog Author)47700 — Fri, 28 Jan 2011 08:00:00 EST

Yesterday, it was reported that a Florida teen, who was beaten by a fellow student to the point that she sustained a traumatic brain injury and was put into a medically-induced coma, has sued her local school district, claiming that the school was negligent in failing to provide her with adequate security, and therefore bears responsibility for the assault.

To be sure, this is an extremely sad and upsetting case. But unless her attorney has some competent evidence that the school either knew or should have known that this assault was imminent and yet failed to undertake some reasonable measures to prevent the incident from occurring, chances are that this case, if it had been brought in New York, would not survive a motion for summary judgment (an application by the defendant school to dismiss the case before trial).

Here's why:

As noted in "Why This School Assault Case Would Never Survive in New York" and "How to Prove Your School Negligence Case Under New York Law," New York's courts will not hold a school liable for the spontaneous, violent and unforeseeable acts of another student.

Frankly, I doubt the plaintiff's attorney would be able to establish that.

Study Finds That Drivers of 'Poor" Safety-Rated Cars 3 Times More Likely to Die in Side-Impact Car Crash

jmcooper@jmcooperlaw.com (Blog Author)47146 — Thu, 20 Jan 2011 08:00:00 EST

Yesterday, it was reported that in a study that was just released analyzing the dangers posed by side-impact crashes, the Insurance Institute for Highway Safety found that drivers of vehicles that received the consumer group's "Poor" rating would be 3 times more likely to die in a side-impact crash than drivers of cars that received one of the Institute's "Good" ratings.

As noted by the study, side-impact crashes tend to pose a far greater risk of serious injury or death because the sides of the vehicle have far less material to absorb crash energy - a factor that is particularly important in protecting the passengers in the vehicle. In that regard, while side air bags are helpful, they still cannot prevent the degree to which the other vehicle in the crash penetrates into the vehicle's passenger compartment. This concern is especially apparent when an S.U.V. collides with a sedan, because the S.U.V.'s front bumper is high up on the sedan door, and thereby affecting the main body parts of the sedan passengers, such as their abdomens and chests.

The bottom line of this study is this: before purchasing or leasing a vehicle, choose one with a "Good" safety rating from the Institute.

Finding School's Conduct "Egregious," Court Denies Motion to Dismiss Student's Injury Claim

jmcooper@jmcooperlaw.com (Blog Author)47079 — Wed, 19 Jan 2011 08:00:00 EST

Although New York is more liberal than some other states in terms of allowing negligence claims against schools, there are those cases where it wouldn't really matter where the case was brought, because even under a heightened burden of proof, such as recklessness (as opposed to mere negligence), the claim could be sustained.

Robinson v. North Pocono School District is one such case.

In this case, which was reported upon earlier today, a seventh-grade student claimed that he sustained bone fractures after being forced to jump out of the back of a bus during a required safety drill. According to the student's parents, the school should be held liable for his injuries, because they knew that he had significant osteoperosis, and therefore should not have compelled him to participate in this drill.

In denying the school district's motion, the Court held as follows:

"[The school's] conduct if proven, rises above mere negligence to the level of egregious administrative oversight ... in utter disregard of (the student's) perilous condition."

CPSC's New Flammability Rules for Carpets & Clothing to Become Effective Jan. 26

jmcooper@jmcooperlaw.com (Blog Author)47018 — Tue, 18 Jan 2011 08:00:00 EST

In a unanimous vote that was the subject of a press release earlier today, the U.S. Consumer Product Safety Commission (CPSC) will now require manufacturers of carpets and rugs and clothing textiles to provide certificates that their products comply with published flammability standards for these products. Presumably in a nod to manufacturer's complaints about the cost involved in complying with these measures, the manufacturers are permitted to self-certify that they had a "reasonable testing program" that assured their products comply with these guidelines; they do not need to be based on testing done by a third-party laboratory.

Naturally, since the manufacturers are essentially self-policing, it is doubtful that this statute will have an appreciable effect on assuring product safety. Therefore - and unfortunately - it seems that the most effective deterrent to putting unreasonably dangerous and flammable carpets or clothing textiles into the stream of commerce remains product liability lawsuits.

Why New York's Work Site Safety Laws Target Developers

jmcooper@jmcooperlaw.com (Blog Author)46928 — Mon, 17 Jan 2011 08:00:00 EST

Leaving aside the question of how Thomas Huang, a developer with such an extraordinarily long history of gross negligence and disregard for worker safety could be repeatedly allowed to build in New York (frankly, I cannot even begin to imagine how this was allowed by New York City's Department of Buildings), the tragic worksite accident at his Elmhurst site last week highlights the reasoning behind the legislature's decision to impose strict liabilty upon the developers and owners of work sites because they are in the best position to guarantee worker safety. (For additional information on this topic, please see "How to Prove a Construction Site Accident Case in New York" and "Construction Site Injuries and New York's Labor Laws").

And, from a brief look at Mr. Huang's history, it appears that hitting him in his wallet is the only thing that might induce him to comply with New York's construction worker safety statutes.

Is Our Kids' School Bus Safety In NY Worth $500?

jmcooper@jmcooperlaw.com (Blog Author)46931 — Mon, 17 Jan 2011 08:00:00 EST

As you may know, I am the proud father of six (6) wonderful children. At the present time, the older 4 take the standard yellow buses to and from school.

And, if you've ever been to a bus stop - or even stopped behind a bus - you've probably seen at least one or more cars ignoring those bus stop signs that are automatically engaged when the bus engages its parking signal.

Given the frequency with which I've observed this, my guess is that most of these people who have flouted these stop signs aren't bad people; they're just in a rush.

And that makes me nervous, because it means you're talking about a sizable percentage of the population.

So, I came across this article earlier, and thought it was worth sharing. In a pilot program in Texas, two school districts have added surveillance cameras to the stop arms on some buses. The school district hasn't been shy about letting the public know about these cameras, or that they are sharing the information with the local police department.

Even without any traffic laws allowing the ticketing of drivers based on this video footage (yet), this program does look promising as a means to prevent school bus injuries.

Don't you agree?

NY School PTA Settles Negligence Case After Teenager Nearly Drowns at Pool Party

jmcooper@jmcooperlaw.com (Blog Author)46770 — Fri, 14 Jan 2011 08:00:00 EST

Sometimes, it is quite apparent that reports of settlements are leaving out some critical details.

Consider the negligent supervision/school accident case of Fortson v. New Hartford Central School District, a case that was venued in upstate New York. In this case, a teenage girl and her parents sued to recover damages after she nearly drowned at her grade school graduation party. In this lawsuit, they sued the local swim club, as well as her school's PTA, who organized the event, apparently claiming that her incident would not have occurred had they not been negligent in failing to oversee properly the swim event.

Here are the parts I don't get: (1) the report on the settlement of this case (it settled for $250,000) indicates that she nearly drowned, but didn't actually drown; and, (2) the plaintiff was retrieved from the pool within 30 seconds of her going underwater.

Both of these factors would seem to suggest that nothing serious happened. But that stands at stark odds with a $250,000 settlement. Unfortunately, the report of this case doesn't clarify anything further.

My guess? This teenage girl suffered a terrible injury from being underwater and oxygen-deprived.

Recall of 3 Children's Products Labeled as Choking Hazards Raises Questions

jmcooper@jmcooperlaw.com (Blog Author)46666 — Wed, 12 Jan 2011 08:00:00 EST

Earlier today, the Consumer Products Safety Commission issued product recalls for 3 separate children's toys due to concerns that they posed choking and/or ingestion hazards. Fortunately, there were no reported incidents of injuries to children, although there were some reported incidents of pieces separating from the toys and being mouthed by small children.

But the relatively obvious dangers posed by these particular products raises a serious - and important - question: what safety testing - if any - was done on these products before they were sold and marketed to the general public?

My guess is, not much.

Here is a list of the 3 toys, together with the product recall information for each:

Name of Product: Kid O Products Baby wooden baby rattles - Prisma and Duo styles

Safety Concern: The beads from the baby rattle may come off when the rattle is either pulled with force or twisted.
Remedy: Buyers of this product can contact Kid O Products via their website www.kidoproducts.com, in order to get a full refund for the product.
Name of Product: Cool-it Soother by Vulli

Safety Concern: This teething ring contains an untreated liquid which is prone to the growth of bacteria and mold, which poses gastrointestinal hazards to infants that ingest it.

Remedy: Buyer can contact the manufacturer, Calisson, toll-free at (888) 318-9803, or view its website at www.sophiegiraffeusa.com for additional recall information.
Name of Product: Toddler Talk Toy Mobile Phones by Discovery Toys, LLC

Safety Concern: The clear plastic antenna of the toy phones are prone to break off (and in fact, there are 3 reported cases of them having done so), and posed a choking hazard to small children.

Remedy: Buyers of this product can call Discovery Toys directly at (800) 426-4777 or go the company's website at www.discoverytoysinc.com for additional product recall information.

NY Liable for Creating Snowbank "Deathtrap" at Bridge, Says Appeals Court

jmcooper@jmcooperlaw.com (Blog Author)46462 — Mon, 10 Jan 2011 08:00:00 EST

While I understand and appreciate the argument that municipalities need to have some level of immunity to cover their actions in order to avoid endless second-guessing - and lawsuits - when that argument is taken to the point where the municipalities are not answerable for their clear negligence, then that is taking it too far.

Fortunately, in Gardner v. State of New York, the appellate court saw it this way too.

In Gardner, the plaintiffs sought to recover damages for the wrongful death of their family member who was tragically killed in a car accident. This was no ordinary car accident, however.

In this case, while crossing a highway bridge in bad, snowy weather, the driver's car skidded into a snowbank that had been packed against the concrete guardrail at the edge of the bridge by New York State workers. But since the snowbank was packed in a negligent manner, it acted like a ramp, causing the plaintiff's car to be launched into the air, off the highway, and onto a roadway below.

Lest you think this was a freak, unforeseen occurrence, consider this: a different accident that resulted in a fatality, which occurred in precisely the same manner at the same location happened just 36 hours earlier.

Yet the defendant didn't see fit to fix or remove that snowbank until after the second accident occurred.

In dismissing the case and finding that the municipality had fulfilled its duty to maintain the roadway, the trial court agreed with the municipality's defense that "the defendant did not have 'resources and manpower' to remedy the dangerous condition between the time of the first fatal accident and decedent's accident."

Nonsense, said the appellate court. And in reversing the trial court's decision, it stated as follows:

"[The] New York State Department of Transportation guidelines for snow and ice removal (upon which defendant relied) ... evolved without adequate study or lacked reasonable basis inasmuch as they provide for the correction of a dangerous condition, such as a slippery roadway, before the correction of a deadly condition, such as the snowbank "ramp" at issue.

"Although defendant's expert witness testified that defendant had no option following the first fatal accident other than to continue regular snow and ice removal from the traveling lanes of the bridge, we conclude that his testimony is not supported by the meteorological evidence ... Only 2.1 inches of snow fell between the two accidents, including 0.2 inches of snow that fell on the day of decedent's accident. There is no fair interpretation of the evidence that defendant's response to a deadly condition by removing minimal snow and ice accumulations while failing to remove the snowbank that had caused the fatality was reasonable (cf. Hart v State of New York, 43 AD3d 524, 525; Farace, 266 AD2d 870)."

This decision is certainly encouraging.

Why New York's Anti-Bullying Law Won't Protect Students From Harm

jmcooper@jmcooperlaw.com (Blog Author)46370 — Fri, 07 Jan 2011 08:00:00 EST

Earlier today, it was reported that Governor Christie of New Jersey signed into law one of the toughest, most progressive anti-bullying statutes in the country. That announcement spurred me to take a closer look at New York's anti-bullying statute. And I wasn't impressed.

Back in September, amid much celebration and back-patting, Governor Patterson signed into law the "Dignity for All Students Act,' which, following most of the country, outlaws bullying in New York's public schools, and also requires the schools to do the following:

• Revise their codes of conduct and adopt policies intended to create a school environment free from harassment and discrimination;

• Adopt guidelines to be used in school training programs to raise awareness and sensitivity of school employees to these issues and to enable them to respond appropriately; and,

• Designate at least one staff member in each school to be trained in non-discriminatory instructional and counseling methods and handling human relations.

But, in my view, what's missing from this law is far more important:

What happens if the school violates this anti-bullying law?

From my reading of the statute, absolutely nothing. Therein lies the problem; there is no consequence - serious or otherwise - if the school fails to comply with this law.

As a result, it appears that this new law does not afford the victims of bullying any greater protection than they otherwise had beforehand. (For more on this topic, see "Can a School Be Held Liable for Bullying Under New York Law").

Dangerous Intersection Just Outside NY School Caused Student's Death, Mom Claims

jmcooper@jmcooperlaw.com (Blog Author)46312 — Thu, 06 Jan 2011 08:00:00 EST

It is awful when tragedy strikes. But I think that people tend feel the sting of the tragedy a bit more acutely when, in the aftermath of the event, the municipality hurriedly takes corrective measures to assure that future similar incidents do not occur.

I suppose that in these cases, the victim's family can't help but wonder: why couldn't they have made these corrections beforehand? Why, if they knew about the danger beforehand, did they have to wait until NOW to fix this problem?

In that vein, it was reported earlier today that the mother of a high school student who was tragically killed in a pedestrian knock-down incident just in front of her Staten Island school has now sued New York City for wrongful death, claiming that the City ignored repeated calls to "place traffic-control or traffic-calming devices near the school, despite knowing the roadway's dangers and despite requests by public officials and the principal for traffic signals."

As noted in "Dangerous Intersections: Municipal Liability Under New York Law," New York's courts have long held that "when the State is made aware of a dangerous highway condition and does not take action to remedy it, the State can be held liable for resulting injuries" (Friedman v. State of New York, 67 N.Y.2d 271, 286, 502 N.Y.S.2d 669, 493 N.E.2d 893).

If the plaintiff's claims are true, and the City did in fact have notice of the dangers of the intersection beforehand yet failed to correct those dangers in an appropriate manner, I can hardly imagine a more sympathetic, jury-friendly case. Don't you agree?

Long Island Looking for (Wrong) Solutions to Avert Wrong-Way Car Crashes

jmcooper@jmcooperlaw.com (Blog Author)46201 — Wed, 05 Jan 2011 08:00:00 EST

In the aftermath of a tragic accident that resulted in the death of an off-duty police officer on November 15 along the Northern State Parkway when another driver that was apparently travelling in the wrong direction collided with his vehicle, Nassau County District Attorney Kathleen Rice has requested a meeting with the heads of the Department of Transportation to discuss ways to prevent similar accidents from occurring in the future.

In an interview, Ms. Rice indicated that in addition to amending New York State's Vehicle and Traffic Law to separately list wrong-way driving as a specific offense, and also intends to propose installing "rumble strips" on exit ramps to help drivers realize that they are entering a highway from the wrong direction.

While both proposals are welcome, I don't see how either will prove particularly effective in reducing wrong-way accidents. First, everyone knows that driving the wrong way down the street or onto a highway is wrong - and dangerous. So adding a statute that specifically says so doesn't seem to add anything to the mix.

Her second proposal is decidedly low-tech, and also unlikely to succeed. Here's why: wrong-way driving is often being done by those who are either seriously lost, drunk, or both. Thus, in focusing warning systems exclusively on a potentially impaired driver - to the exclusion of the non-impaired drivers who are driving in the right direction - this proposal misses out on the most likely option to avert disaster.

A better option, which has been adopted successfully in other parts of the country, includes the following:

Installing radar detectors on the side of the highway to detect a wrong-way driver, which not only trigger electronic road signs to warn the driver that he/she is going the wrong way, but also triggers other electronic road signs to advise other drivers: "Warning: Wrong-way driver ahead. All motorists pull to the shoulder and stop." (This one is my favorite).

This system has further cool featuers, like a video camera that when sensing a wrong-way driver, automatically sends video feeds to the police, who can then set up a road block to stop the wrong-way vehicle. This system has successfully stopped nearly 20 wrong-way drivers in Houston over the past 3 years.

This system is pricey, though.

Another option that has been adopted by a few carmakers, like BMW, is using the car's own navigation system to alert the driver he or she is going the wrong way.

Fire Hazard Prompts American Honda To Voluntarily Recall Snowblowers

jmcooper@jmcooperlaw.com (Blog Author)45969 — Fri, 31 Dec 2010 08:00:00 EST

This is certainly interesting timing.

Two days ago, in response to 90 reports of fuel either seeping or dripping from the underside of the fuel tanks on their snowblowers, American Honda Motor, Inc., in conjunction with both the U.S. and Canadian Consumer Products Safety Commission voluntarily recalled over 18,000 snowblowers out of concern that it could pose a fire hazard.

The product recall covers the following snowblowers:

Model | Frame Serial Number

HS724 | SZBE-1037913 through 1046577

HS928 | SZAS-1151080 through 1169012

HS1132 | SZBF-1018734 through 1025998

As part of the recall, owners of any of these recalled products have been urged to immediately stop using the recalled snowblowers and contact any Honda Power Equipment dealer to arrange for a free fuel tank joint and o-ring replacement.

Additional information on the product recall can be viewed at Honda's website, www.hondapowerequipment.com.

Finding That Student Assumed the Risk, NY School Negligence Case Dismissed

jmcooper@jmcooperlaw.com (Blog Author)45864 — Wed, 29 Dec 2010 08:00:00 EST

Although, at first blush, you might be inclined to think that the judge in this case got it wrong under the law - after all, New York State's highest court recently held in Trupia v. Lake George Central School District that assumption of the risk, or a child's risky behavior, does not inherently bar a school negligence claim under New York law - a closer reading of the case is required.

In Heatley v. State of New York, the plaintiff was injured while taking part in a "trust exercise" during a First-Year Acting Course at SUNY. According to the plaintiff, the teacher directed these college students to run "with full force" with their eyes closed, and that she sustained personal injuries when she banged into another student.

It's true that assumption of the risk will not act as a bar to personal injury claims as a matter of law. All that means is that the court is not obliged to dismiss the case before it ever reaches a trier of fact. But that doesn't mean that the trier of fact cannot conclude that the school wasn't guilty of negligent supervision, or that the student voluntarily assumed the risk inherent in the activity, and therefore the school isn't liable.

That's the difference between having a case decided on the papers as opposed to at trial.

Brokaws Dismissed from Brooklyn Scaffold Accident Case

jmcooper@jmcooperlaw.com (Blog Author)45839 — Tue, 28 Dec 2010 08:00:00 EST

This has nothing to do with the fact that I am a fan of Tom Brokaw's (I think he was and is a fine reporter and news anchor). I am just encouraged when courts get the right result, and dismiss private citizens from cases where they shouldn't have been sued in the first place.

In Sigal v. Brokaw, et al., the plaintiff sustained serious personal injuries when he fell from scaffolding that he was using to paint the Brokaws' apartment. But while workers may, as a general rule, recover damages for their gravity-related injuries that were caused due to inadequate safety equipment under New York's Labor Law §240(1), there is also an important exception to this rule: when the work is being done on a one or two-family dwelling. (For more on this topic, please see "The Most Important Exception to Owner/Contractor Liability For Worksite Accidents in NY").

In this case, the Court summarized its basis for dismissing the Brokaws from this case as follows:

"The Brokaws have established their prima facie entitlement to summary judgment as a matter of law by demonstrating that they were not negligent, and that they are statutorily exempt from liability under Labor Law §240(1) because they [as the proprietary leaseholders for the subject cooperative apartment] fall under the exception contained in the statute for the "owners of one and two-family dwellings who contract for but do not direct or control the work." It is undisputed that the Brokaws did not "direct or control the work."

The Court further explained as follows:

"The Appellate Division, Second Department has expressly ruled that a cooperative apartment is a one-family dwelling within the meaning of Labor Law §240(1) (Maciejewski v. 975 Park Ave. Corp.; 37 A.D.3d 773 [2d Dept. 2007]; Xirakis v. 1115 Fifth Ave. Corp., 226 A.D.2d 452 [2d Dept 1996]) ... holding the Brokaws liable as agents would be contrary to the purpose of the statutory exemption which is to protect those owners "who are not in a position to know about, or provide for the responsibilities of absolute liability" (Cannon v. Putnam, 76 NY2d 644, 649 [1990]."

Given the sound reasoning of the decision (and the apparent availability of other defendants in this case), I seriously doubt that the plaintiffs will appeal this decision.

How Rampant Is Food Poisoning? CDC Estimates Nearly 1 Out of 6 Americans - Every Year

jmcooper@jmcooperlaw.com (Blog Author)45370 — Mon, 20 Dec 2010 08:00:00 EST

Last week, the Centers for Disease Control and Prevention (CDC) issued a statement in anticipation of some new legislation that will broaden their powers to police and regulate the food industry. In their statement, they noted that each year nearly one out of every six Americans is sickened by some form of food poisoning every year.

When you think about that, it is an astonishing number - and, as correctly noted by the CDC, is patently unacceptable.

In the Journal of Emerging Infectious Diseases, the CDC identified the five most common culprits in food-borne disease as Norovirus, also known as Norwalk virus,salmonella; and 3 other bacteria, which were as follows:

Clostridium perfringens;
Campylobacter; and,
Staphylococcus aureus.

Bear in mind, however, that despite these staggering statistics, that does not mean, by any stretch of the imagination, that proving a food poisoning case under New York law is easy. It's not.

(For more information on this topic, please read "3 Avoidable Mistakes That Can Destroy Your Food Poisoning Lawsuit in NY").

Malfunctioning Traffic Signals in NYC a Recipe for Disaster - But Not City Liability

jmcooper@jmcooperlaw.com (Blog Author)45246 — Fri, 17 Dec 2010 08:00:00 EST

Yesterday's New York Daily News ran a story about how New York City is plagued by malfunctioning traffic signals governing intersections, leaving pedestrians and motorists guessing what to do. There is no question that this is an extremely dangerous situation.

But that doesn't automatically mean that the City will be held liable for an accident that occurs at one of these intersections either.

As noted in "Why a Malfunctioning Traffic Signal Alone Isn't Enough to Hold NYC Liable in Negligence," a plaintiff that is injured at an intersection with an inoperative or faulty traffic control device is still required to prove that the accident was caused - at least in part - by the failure of that traffic signal. In legalese, this is called "proximate cause." Otherwise, the claim will be dismissed by the Court.

Perhaps the City should worry less about installing countdown clocks at busy intersections, and make sure that the standard-issue traffic signals that are already in place actually work. That might have a greater effect on reducing car and pedestrian knock-down accidents across New York City.

List of the 10 Most Dangerous Children's Toys of 2010 Is Released

jmcooper@jmcooperlaw.com (Blog Author)45127 — Wed, 15 Dec 2010 08:00:00 EST

For those of you that may not be aware of it, there is a non-profit organization based out of Massachusetts called World Against Toys Causing Harm (WATCH), whose stated purpose is to inform consumers about unsafe children's toys and products. As part of their campaign, each holiday season they release a "10 Worst Toys list" that enumerates what in their view are the most dangerous toys that are currently on the market.

A .pdf of the list, which is hosted at www.toysafety.org,, can be found here.

Alternatively, a one-page index for the 10 Worst Toys List can be found by clicking on the link for the list.

Some of the images depicted in the 2010 "10 Worst Toys" List are below.


SPY GEAR SPLIT-BLASTER	SUPASPLAT SPLATBLASTER	BUZZ MAGNETS

MY FIRST MINI CYCLE	PULL ALONG CATERPILLAR	ANIMAL ALLEY PONY

WALKAROO II ALUMINUM STILTS	BALLZILLION TUG BOAT PLAY CENTER	BIG BANG ROCKET

KUNG FU PANDA SWORD OF HEROES

Sometimes, Even New York's Public Schools Admit They Were Negligent

jmcooper@jmcooperlaw.com (Blog Author)45064 — Tue, 14 Dec 2010 08:00:00 EST

It is indeed rare that a public school, particularly one in New York, will admit they were guilty of negligent supervision. So, as you might well imagine, it must be a real humdinger when they actually admit it.

Last year, 12 year-old Shane Reese was injured when his teachers - who were short-staffed and out of ideas to occupy their students - instructed them to play dodgeball. But they didn't pick the standard soft rubbery balls used for the game; they gave the students hard soccer balls. The school's negligence didn't end there, though. Apparently, they had six classes totalling more than 100 students crowded into the gym to play the game. As for the plaintiff - he wasn't even participating in the game: he was sitting it out because he had just received expensive dental treatment.

What happened next shouldn't come as a surprise: despite sitting in the bleachers, he was hit in the head with great force by one of the errant hard soccer balls, which destroyed his new dental work.

In Drunk Teen Case, Parents' Liability for Negligent Supervision Extends Beyond Their Property, NY Court Holds

jmcooper@jmcooperlaw.com (Blog Author)44789 — Thu, 09 Dec 2010 08:00:00 EST

In a very short, but important opinion, New York State's highest court, the Court of Appeals, handed down a decision that is laden with social implications in a transparent attempt to curb the intoxication of minors, and particularly to reduce the incidence of drunk driving. In short, the Court unmistakably expanded parental liability for negligent supervision under New York law.

In its November 18 opinion in Aquino v. Higgins, the Court stated as follows:

"There is an issue of fact as to whether defendants provided adequate supervision for minor guests who became intoxicated at their home and, in particular, whether defendants properly supervised their departure from the premises (compare Rudden v. Bernstein, 61 AD3d 736, 738 [2d Dept. 2009]). Since the basis of any liability on defendants' part, assuming proximate cause, rests on the duty to supervise (see Appell v. Mandel, 296 AD2d 514 [2d Dept 2002]), rather than their duty as landowners, it is not dispositive that the injury occurred off premises. As a result, summary judgment should not have been granted in defendants' favor and the cause of action for negligent supervision should be reinstated." (emphasis supplied)

In other words, the Court is issuing a clear warning to parents of teens, especially those who host parties at their homes: if anyone becomes intoxicated while on your watch and later injures someone else - even at a different location - as a result, we are going to hold you - the parent - personally responsible.

I, for one, have no problem with this whatsoever.

NY Appeals Court Holds Tractor-Trailer Driver Solely At Fault For His Own Injury

jmcooper@jmcooperlaw.com (Blog Author)44837 — Thu, 09 Dec 2010 08:00:00 EST

It's really hard to argue with this decision; common sense dictates that where the only real cause (or, in legalese "proximate cause") for an accident is the plaintiff's own negligence (as opposed to any fault on the part of the defendants), he shouldn't be allowed to recover. And that is precisely what happened in Klussman v. A.T. Reynolds & Sons, Inc.

In this November 30 decision, New York's Appellate Division, First Department (which covers the trial courts in both Bronx and Manhattan) dismissed the plaintiff's tractor-trailer driver's personal injury case because after safely unloading 3 racks of 40 five-gallon plastic bottles of water from the rear of his trailer to the loading dock of a building, the plaintiff was dissatisfied with the pace of the job because the stark difference in height between the back of his trailer and the loading dock was slowing down the job significantly. Therefore, he unilaterally decided to speed up the process by going straight down the dock at a greater rate of speed, and thereby compensate for the height differential. Unfortunately, this experiment failed - miserably - and his leg was pinned against the loading dock.

In reciting their reasons for dismissing the plaintiff's NY Labor Law claims, the appellate court stated as follows:

"There is, however, no issue of fact as to whether [defendant] owed [plaintiff] a duty of care to provide him with adequate equipment or a different truck for the task of unloading the water ... [Defendant] has demonstrated that the accident was proximately caused by the manner in which [plaintiff] chose to offload the fourth rack of water as opposed to a failure to provide him with adequate equipment or a different truck."

Sometimes, if an accident is really your own fault, you just have to deal with the consequences on your own.

We Owe No Duty to Tell You About Threats to Your Kids, Says NYC Dept of Ed

jmcooper@jmcooperlaw.com (Blog Author)44731 — Wed, 08 Dec 2010 08:00:00 EST

I just finished writing a brief in response to an appeal taken by New York City's Department of Education in a school negligence case arising out of an assault on a student just before school .

You may just recall that a little over one year ago, I wrote about the Bronx trial court's decision I received holding that New York City's schools are required to notify parents if they become aware of an imminent danger to one of their students (see, "NYC Public School Must Notify Parent of Threat to Child, Bronx Court Holds"). Dissatisfied with this rule, the City appealed this decision, and now has argued that so long as the injury occurs off of school grounds and doesn't occur during school hours, they should bear no liability. In other words, despite acknowledging their tacit knowledge of an imminent threat to one of its students (my client), they believe that the school has no obligation to notify that student's parents of the threat, and/or to undertake reasonable measures to protect that student who is under their care.

I, for one, am offended by this, and here's why: taken to its logical conclusion, the following analogy is apt: during school hours and on school grounds, one student sets a ticking time bomb to go off immediately after school one block away from the school. That student, in a show of bravado, then tells the school's principal about it. After verifying that the threat is indeed credible, the school elects to keep this information confidential, or ignore it, rather than informing any of its students' parents about the threat, and affording them the opportunity to safely retrieve their children from school before the bomb is set to go off.

If you ask the City, they would bear no liability in this scenario; if you ask me, I cannot imagine a greater dereliction of duty or school negligence.

In Partisan Vote, CPSC Approves New Consumer Website for Product Complaints

jmcooper@jmcooperlaw.com (Blog Author)44187 — Mon, 29 Nov 2010 08:00:00 EST

After the conclusion of a debate that followed party lines, last Wednesday the Consumer Product Safety Commission approved a new web-based database for complaints regarding consumer products, particularly children's toys and household products. The CPSC intends to launch this new database, called www.SaferProducts.gov, this coming March.

I readily admit, I am fascinated by this development, but think that product manufacturers and retailers may have a legitimate concern here: if it too easy for people to post anonymously their grievances with respect to certain products - and it remains to be seen what protective measures are or will be in place to make sure that these complaints go through some type of verification process before being published - these manufacturers and retailers may end up with one disgruntled customer being able to affect their core business regardless of whether this customer's claims are valid.

On the other hand, I think the argument may be much ado about nothing. The fact of the matter is that we're in the midst of the Amazon and e-Bay generation, both of which post gobs of customer feedback on the seller of every product they offer. Consequently, while I think that the doomsday prognostications here are largely overblown, I also think that since the website carries a governmental imprimatur, some safeguards and quality control of complaints of defective products should certainly be in place before any comment is published.

The Hardest Part of Proving a Playground Injury Case Under New York Law

jmcooper@jmcooperlaw.com (Blog Author)44046 — Thu, 25 Nov 2010 08:00:00 EST

It is undeniable that one of the saddest things we see is a child that is injured on a playground; after all, we want to encourage the children to engage in healthy outdoor physical activities, and this can put a real damper on it. True, sometimes accidents just happen. On the other hand, there are times that these playground injuries are preventable, and a school's failure to prevent them can be attributed to negligence.

But, as noted in our article "Why Many (If Not Most) NY Playground Accident Lawsuits Are Dismissed," these cases are generally very tough to win. Leaving aside the issue of the safety of the equipment involved (which is usually not the chief culprit in causing a child's playground injury), the toughest part of these cases is proving one thing (and this is where most schoolyard injury cases fail):

That the injury wouldn't have occurred if there was adequate supervision at that time.

Please don't need to take my word for it. Instead, consider the matter-of-fact language used by one of New York's appellate courts in dismissing a school negligence case last year in Troiani v. White Plains City School District:

"Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint. They demonstrated that they provided adequate supervision during recess and, in any event, that the accident occurred in such a manner that it could not reasonably have been prevented by closer monitoring, thereby negating any alleged lack of supervision as the proximate cause of the infant plaintiff's injuries (see Weinblatt v Eastchester Union Free School Dist., 303 AD2d 581 [2003];Berdecia v City of New York, 289 AD2d 354 [2001]; Navarra v Lynbrook Pub. Schools, Lynbrook Union Free School Dist., 289 AD2d 211 [2001]; Lopez v Freeport Union Free School Dist., 288 AD2d 355 [2001])."

In sum, this evidentiary hurdle is not insignificant by any means.

Why a NY Court Immunized Police Against Claim They Shot Bystander

jmcooper@jmcooperlaw.com (Blog Author)43979 — Wed, 24 Nov 2010 08:00:00 EST

Sometimes you can see the policy reasons behind a decision, but they don't necessarily fit the facts of a particular case.

Yesterday's decision in Johnson v. City of New York, a case that was decided by a divided Court of Appeals (New York State's highest court), is one of those cases. In Johnson, the court was confronted by the question of whether the claim by a woman who was injured in the crossfire between New York City's police and a criminal suspect should be barred as a matter of law.

In affirming the lower appellate court's decision to dismiss the case, the Court of Appeals asserted that in electing to discharge their weapons, the officers in question were clearly using their professional judgment, and therefore immunized from civil liability (i.e., negligence) arising out of their actions.

While I agree that police officers should certainly be afforded a great deal of latitude in using their professional judgment, here's what troubles me. Police Procedure No. 203.12, entitled "Deadly Physical Force," which sets forth the guidelines for the use of firearms, states that "(b) Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons." And in this particular case, the officers testified under oath that they did not look for bystanders while they were shooting at the suspect. Under the circumstances, I don't understand why a jury should be completely barred from considering whether the officers violated these guidelines "by failing to even ascertain whether innocent persons were unnecessarily endangered at the time they discharged their weapons."

How Some NY Construction Site Owners Lose Winnable Negligence Cases

jmcooper@jmcooperlaw.com (Blog Author)44024 — Wed, 24 Nov 2010 08:00:00 EST

Reading the Appellate Division, Second Department's November 9 decision in Nankervis v. Long Island University, you can't help but get the feeling that the school may be terribly frustrated at its inability to secure the dismissal of a construction site negligence case that they probably shouldn't be liable for.

As noted in our earlier articles, "How to Prove a Construction Site Accident Case in New York" and "The 2 Types of NY Labor Law §200 Cases - and How to Prove Them," the plaintiff in one of these cases must prove that the defendant had the power to control the worksite and had notice, i.e., created the defective condition that caused the injury, or either knew or should have known about it, yet failed to timely correct it. But when a defendant seeks a court order dismissing the negligence claims before trial, the burden of proof is reversed: it becomes the defendant's responsibility "to show that it neither created the dangerous condition nor had actual or constructive notice of it within a reasonable time to correct it (see Slikas v Cyclone Realty, LLC,AD3d, 2010 NY Slip Op 06627 [2d Dept 2010]; Ortega v Puccia, 57 AD3d 54, 61-62; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708)."

And in this particular case, the court refused to dismiss the action because it held that the defendant failed to affirmatively establish "that it lacked actual or constructive notice of the alleged defect (see Mikhaylo v Chechelnitskiy, 45 AD3d 821; Keating v Nanuet Bd. of Educ., 40 AD3d at 709)."

Looking for the Paradigm of a School Negligence Case? Here It Is.

jmcooper@jmcooperlaw.com (Blog Author)42142 — Fri, 05 Nov 2010 08:00:00 EST

If you were ever looking for the paradigm of a school negligence or negligent supervision case, this is probably it.

In a case that was finally resolved - and just reported - the parents of a child settled their case against the day care center who was charged with the responsibility of watching over their 5 month-old for a total of $775,000. While at first blush that seems like a rather steep sum, consider this: a worker at the day care center that was carrying the 5 month-old dropped him on his head onto a concrete floor. As a result, this infant sustained severe head injuries.

I imagine that even staunch tort reform advocates shouldn't have a problem with that.

Why the 4 Year-Old New Yorker Should Never Have Been Sued in Negligence

jmcooper@jmcooperlaw.com (Blog Author)41893 — Mon, 01 Nov 2010 08:00:00 EST

It's been widely reported that a New York County judge allowed a negligence claim against a 4 year-old, who accidentally ran their bicycle with training wheels into an elderly lady, to proceed. And although the judge's opinion seems well-grounded in New York's negligent supervision principles (for more on this topic, please see "How Parents Can Be Held Negligent in NY For Their Kids' Dangerous Acts"), I think the attorney who brought the case is missing the bigger picture: it is not whether the claim CAN be brought - or viable - under New York law; rather, the better question is whether the claim SHOULD be brought.

Simply put, even though this attorney has dodged a proverbial bullet in that the Court has declined to dismiss his case purely as a matter of law, I can scarcely imagine a personal injury case with less jury appeal. Seriously, can you think of any jury that would want to award a significant verdict against a 4 year-old?

One NY School's Wrong Reaction to Its Bus Driver's Texting

jmcooper@jmcooperlaw.com (Blog Author)41487 — Tue, 26 Oct 2010 08:00:00 EST

This is just plain wrong.

Last Thursday, after overhearing her older sister talking about a lecture she had attended on the dangers of texting while driving, this 6 year-old neighbor of mine piped up: "Hey, my bus driver does the same thing!"

Not wanting to jump to any conclusions, my neighbors called around to other parents, who checked with their children. Every single one of them verified the story. Even worse, the driver apparently made a point of concealing his cell phone every time he approached bus stops where parents were present.

These parents called the school, and were assured that the principal would speak to the bus driver. But the next day, one of these girls told her mother that the driver was at it again, texting while driving. Since the school apparently failed to correct the problem, this parent took it up a few notches, reporting the driver to New York City's Department of Transportation.

When the school found out, their initial reaction (which they later recanted) was quite telling: "But now the driver may lose his job!"

Last time I checked, a school's primary responsibility was its students' safety - not the well-being of its faculty or school bus drivers.

School Negligence Claim Filed By Father of 13 Yr.-Old Whose Principal Refused Her Medical Attention

jmcooper@jmcooperlaw.com (Blog Author)40879 — Fri, 15 Oct 2010 08:00:00 EST

This is a most disturbing story. And it is not the first one to come out of the India school system in recent months. (See, e.g., Principal on Student's Death: "We Can't Take Responsibility For Each and Every Kid.")

The father of a 13 year-old girl who died yesterday has now filed a formal complaint against his daughter's school, claiming that the school's negligence was responsible for his daughter's death. Assuming that the factual allegations in this case are verified, I don't blame this father one bit.

The details are as follows: after complaining that she wanted to return home and seek medical attention during the middle of her school day because she wasn't feeling well, the girl's principal refused this request, and instead insisted that she remain in school until the end of the day. Unfortunately, by the time she was finally able to seek appropriate medical treatment, it was too late, as her condition had deteriorated considerably.

As a practical matter, I believe that the father will have a difficult time demonstrating that this delay in and of itself proximately caused his daughter's death, which means that he would have an uphill battle proving a school negligence claim under New York law. But that doesn't mean the school is right either.

NY Mets Deny Liability for Drunken Fan's Fall on Woman That Destroyed Her Back

jmcooper@jmcooperlaw.com (Blog Author)40836 — Thu, 14 Oct 2010 08:00:00 EST

Earlier today, at a hearing in a Manhattan courtroom, the New York Mets' counsel argued that they should not bear any liability for a tragic incident that occurred while they were still playing in Shea Stadium. According to the plaintiff, they continued to serve beer to a fan that was already clearly intoxicated, and then that fan fell over onto the plaintiff, shattering her spine.

In response to the Mets' claims that this man's fall was "random and unforeseeable," the plaintiff's attorney - and the judge - pointed out that before his plunge, he was slurring his words so badly that he couldn't even pronounce the words "Let's go Mets!" and had threatened several people with bodily harm unless they chanted louder for the Mets.

Although the Mets' counsel dismissed this as "normal" behavior, the Judge was unimpressed, stating "'I'm going to kick ----- ------' is normal behavior?"

The plaintiff's attorney also cited several witness accounts that the fan returned to his seat - twice - with one oversized cup of beer in each hand.

I don't think it takes a great deal of imagination to guess which way the judge is leaning on the Mets' application to dismiss the lawsuit.

Friends Who Got Their Own Designated Driver Drunk Not Liable, Says NY Court

jmcooper@jmcooperlaw.com (Blog Author)40592 — Mon, 11 Oct 2010 08:00:00 EST

The Nassau County case of Luciere v. Rahner presents a disturbing fact pattern: some friends go into a bar, where they expect to (and ultimately do) become intoxicated. So before their evening gets into "swing," they appoint a designated driver. So far, so good.

But then they go ahead and start ordering alcohol for their designated driver. And the driver obliges. And then gets behind the wheel.

And then they get into an accident, which injures someone.

The question raised in this case was the following: what legal liability, if any, do these friends have for this accident?

The short answer?

None.

As the Court stated: "here, the act of procuring alcoholic beverages for the Defendant, notwithstanding the agreement that he would act as the designated driver, is not, in and of itself, a tortious act. Indeed, the Defendant, was not forced against his will to consume the beverages that were purchased for him. As such, the Third-Party Plaintiff's concerted liability theory is inapplicable here."

(As an aside, it does not appear that the plaintiff is left without recourse; he still may have a viable negligence case against the bar that furnished the liquor under New York's Dram Shop Laws.)

Can a School Be Held Liable for Bullying Under New York Law?

jmcooper@jmcooperlaw.com (Blog Author)39922 — Wed, 29 Sep 2010 08:00:00 EST

In a September 22 article in the Baltimore Sun, it was reported that parents of a middle school student who was repeatedly bullied - despite his pleas for help from the school - which resulted in his suffering (allegedly) severe post-traumatic disorder, have now sued the school for their damages, and for violation of his constitutional rights.

The question is, would this case have any chance for success under New York law?

While I am somewhat skeptical of the Due Process and constitutional claims, I think that a New York court would at least allow a jury to determine whether the student's purported post-traumatic stress disorder is 1) real, rather than manufactured (the indication in the article that the plaintiff has moved on to a different school and is now doing much better seems to undercut any claim that the harm he suffered was severe or permanent); and, 2) assuming that the injury was real, whether the school's alleged unresponsiveness was a substantial factor in causing the psychological injury.

And the reason why I think the Court would allow these claims to be heard by a jury rather than dismiss them before trial is relatively straightforward: since there seems to be a fair amount of credible evidence that the school knew, or should have known, about the bullying, yet did little or nothing to stop it, the plaintiff has already cleared the most hurdle to proving a school negligence case: notice. Having met that burden, the remaining issues are typically reserved for the factfinder (i.e., jury).

NY High Court Reinstates Child's Hot Water Burn Case Against Building Owner

jmcooper@jmcooperlaw.com (Blog Author)39526 — Wed, 22 Sep 2010 08:00:00 EST

It is cases like this that make me grateful that there are two levels of appellate courts in the New York State court system rather than only one.

In Simmons v. Saccehtti, the plaintiff - a 17 month-old child - suffered serious burns when the water coming out of the faucet in her apartment's bathtub apparently exceeded safe temperatures, and came in contact with her body. For those that may be unaware, NYC Building Code Reference Standard 16, P107.26(b) requires that buildings maintain temperature relief valves to assure that excessively hot water does not leave the building's boiler system, and this building apparently didn't have one, and had been issued citations for this failure in the past.

Noting that the child was apparently left alone in the tub when she was hurt, however, the Appellate Division held that the complaint should be dismissed, because the child's mother and older brother's negligence in leaving her alone were superseding causes for this incident, and therefore, absolved the building and plumbing contractor of any liability for the accident. In addition, this court opined that, in any event, the buiding owner could not be held liable because "[T]here is no prescribed maximum temperature under the Administrative Code for the water that is supplied to an individual apartment." (Interestingly, the defendants in a hot water burn from a shower case I handled a few years ago raised the same argument, but it did not result in the dismissal of my case.)

As suggested above, the Court of Appeals (New York State's highest court) disagreed, and reinstated the complaint.

And, in my view, that's an extremely positive result from a public policy perspective.

Here's why: if the Appellate Division's ruling were allowed to stand, that would effectively de-fang, if not abrogate altogether, the Reference Standard mandating that the multiple dwelling buildings' boilers be outfitted with functioning temperature relief valves. In other words, if the buildings can't be held liable for burning water in any individual apartment, then there's no compelling economic reason to make sure that the water temperature in their buildings is safe.

Before Touting Your Pro Tort Reform Credentials, Consider This

jmcooper@jmcooperlaw.com (Blog Author)39408 — Tue, 21 Sep 2010 08:00:00 EST

I just read a very troubling article discussing one of the greatest road hazards facing both other drivers and pedestrians alike: overworked and unchecked truck drivers. And in this particular case, the outcome was tragic - and predictable: a truck driver who had well exceeded the number of legally permitted hours behind the wheel, was exhausted and fell asleep. As a result, he rammed into the back of a school bus that had 22 children on board, causing the bus to burst into flames, and killing one of its passengers, a 12 year-old girl.

It gets even worse.

Apparently, earlier that morning, the truck had been stopped by troopers at a weigh station, and been given an "out-of-service order," which meant that the truck should be taken in immediately for repairs by a certified mechanic.before it would be permitted to continue on its route.

The driver ignored this order, however, and continued on his way. (Instead, he made some hasty repairs on his own.)

And, not surprisingly, at depositions it was revealed that the trucking company had no internal oversight to assure that the drivers complied with these laws.

The result?

A $54,000 fine from the United States Department of Transportation.

While I certainly agree that there should be some mechanism or disincentive to filing frivolous or idiotic lawsuits, consider the following: Do you think that this fine is adequate?

Or, do you think that there should be some method for assuring - rather than limiting - the ability of these children, who were passengers on this bus, to recover their parents' expenditures on their medical care, and perhaps some fair compensation for their pain and suffering due to the gross negligence of this trucker and his trucking company?
Perhaps you feel that all 22 of these children (including the one who died), as well as the school bus driver (who was also apparently injured while saving two of the children), should have to share in one lump sum of $250,000 (bearing in mind that the deceased child's funeral expenses would likely also have to come out of this same pot of money).

Simply put, if you think this trucking company needs to be sent a stronger message than a $54,000 fine to compel them to act safely, then guess what? You are - at least partialy - anti-tort reform.

NY Labor Law 240(1) Not Limited to Falling Worker; Also Covers Injuries From Falling Devices, Court Holds

jmcooper@jmcooperlaw.com (Blog Author)39354 — Mon, 20 Sep 2010 08:00:00 EST

Looking back at one my earlier articles, "What Type of Construction Risks Are Protected By NY Labor Law 240(1)," I realized that I forgot to highlight an important aspect to this worker safety statute. Although the law clearly protects workers who fell as the result of a gravity-related danger, it also protects those workers who are injured by falling objects. In other words, the gravity-related requirement is not limited to the worker him (or her) self; it also encompasses falling objects that cause injury.

And that rule was specifically addressed in a recent holding from a New York County trial court in Adams v. Glenman Construction. In granting the plaintiff's motion, and finding the defendants liable under Labor Law 240(1) as a matter of law, the Court held as follows:

"For an unknown [reason], the roustabout gave way and the beam free fell and hit plaintiff In his chest. Plalntiff was allegedly thrown off the ladder to the ground ...Traditionally, Labor Law 240(1) has been construed to apply to elevation-related risks involving "falling from a height or being struck by a falling object that was improperly hoisted or
inadequately secured" (Ross, 81 NY2d at 501) ... Moreover, in a falling object case, the applicability of the statute does not "depend upon whether the object has hit the worker. The relevant inquiry - one which may be answered
in the affirmative even in situations where the object does not fall on the worker - is rather whether the harm flows directly from the application of the force of gravity to the object" (id.)(emphasis supplied).

When Landlords Are Not Held Responsible For Attacks in Their Buildings in NY

jmcooper@jmcooperlaw.com (Blog Author)38849 — Mon, 13 Sep 2010 08:00:00 EST

Sometimes in reading an appellate court's decision that reverses a lower court's ruling, you can only wonder what the lower court was thinking when it issued its ruling.

Flynn v. Esplanade Gardens, Inc. is precisely one such case.

In this instance, the plaintiff sued his landlord to recover damages for the personal injuries he suffered when his ex-girlfriend's boyfriend apparently beat him up quite badly. If you were wondering how or why the landlord of the plaintiff's building should be responsible for this, you're not alone; New York's Appellate Division, First Department wondered the same thing.

And, in concluding that the defendant-landlord could not be held liable for negligent security for this particular act, it stated as follows:

"In this case ... there is no evidence that [the defendant] had any reason to be suspicious of either individual involved in the incident (Smith, a frequent visitor whom plaintiff had welcomed to the building many times, and Mulligan, her companion). ... In sum, under the precedents of this Court, it is well settled that a targeted attack on a resident of an apartment building does not give rise to liability on the part of the landlord for a failure to provide security. Plainly, the targeted attack in this case -- evidently involving the settling of a score over an abortive romance -- calls for the application of this rule. "

How a Brooklyn Girl That Was Dragged By a Backhoe Lost Her Accident Case

jmcooper@jmcooperlaw.com (Blog Author)38845 — Sun, 12 Sep 2010 08:00:00 EST

Recently, in Wyatt v. Keyspan Corp., a Brooklyn jury denied any award to a 12 year-old girl who suffered serious personal injuries, including scarring, after being dragged by a backhoe.

Given what you may have heard about the Brooklyn courts, this result in a child injury case sounds rather surprising, doesn't it?

It turns out that there's more to the story.

Apparently, the defense in this case had witnesses who came in and testified that this 12 year-old girl was far from innocent in this accident; according to these witnesses, the girl sustained her injuries while trying to jump off of the backhoe that she had voluntarily - and foolishly - climbed earlier.

Given the facts of this case, I don't blame the jury one bit.

But what still puzzles me is how this case ever got to trial. My guess is one of three (3) things:

(1) the client(s) were unreasonable in their settlement demands;

(2) the attorney was unreasonable in his/her settlement demands; or,

(3) a combination of (1) and (2).

Suffolk Court Highlights Split Between NY Courts In Construction Site Accident Cases

jmcooper@jmcooperlaw.com (Blog Author)38314 — Wed, 01 Sep 2010 08:00:00 EST

In an opinion that was handed down on August 25, a Suffolk County judge dismissed the majority of a construction worker's worksite safety violation claims that were brought due to the personal injuries he sustained following a fall from an affixed ladder at a worksite.

Clearly, the mere fact that a judge dismissed the plaintiff's statutory claims under Labor Law §§ 240(1) and 241(6) is not noteworthy; but the Court's footnote, which highlighted an important split among New York's appellate divisions, is significant.

Despite acknowledging that the First Department has held that permanently affixed ladders may be deemed "safety devices" under the Labor Law, the court noted that

"[T]he Second and Third Departments have consistently rejected finding that permanent ladders or stairs are safety devices within the meaning of Labor Law 240 (1). Indeed, "a stairway which is, or is intended to be, permanent - even one that has not yet been anchored or secured in its designated location, or completely constructed - cannot be considered the functional equivalent of a ladder or other ‘device' as contemplated by [Labor Law] Section 240 (1)."

What Could Be Going On In Your Child's School

jmcooper@jmcooperlaw.com (Blog Author)38243 — Tue, 31 Aug 2010 08:00:00 EST

This school negligence claim certainly takes the cake, as far as I'm concerned, for being a headline grabber.

On a dare, a student taking an electrical trades class hooks up the electrodes to his own chest, and then gets a terrible shock which causes him serious personal injuries: his heart stopped, and may now have permanent brain damage.

Granted, at first blush I think this case lacks merit. After all, if you're a high school student, and you know that electricity can turn on lights in a room, you should have an appreciation that it can hurt you. There is one interesting wrinkle to this case, though: apparently, the teacher may have been the one daring the student to hook up the electrodes to his body.

And, if you're dealing with a peer-pressured high school student, perhaps the school can be held negligent.

Intoxicated NY House Painter Falls Off His Own Ladder - and Sues

jmcooper@jmcooperlaw.com (Blog Author)37873 — Tue, 24 Aug 2010 08:00:00 EST

Sometimes I am just baffled by the lawsuits that people bring.

In the Suffolk County case of Berman v. Franchise Distributors, the plaintiff was hired to power wash and then paint a private house. In the process of power washing the side of the house, he fell off of the ladder that he had brought to the worksite. Those facts are not in dispute.

There are some interesting facts that were testified to by a non-party witness that add a great deal of inrigue to the case, though: apparently, this witness observed the plaintiff drinking more than a few beers (and had offered this witness a beer as well), and was drunk at the time he fell off the ladder - his ladder. In fact, the hospital records following the accident confirm that he was inebriated.

So, even though the plaintiff's claims under New York Labor Law 240(1) (which imposes liability on property owners for failing to provide adequate safety devices for elevation-related hazards) have survived dismissal - at least for now - I wonder how the plaintiff's attorneys intend to convince any jury in New York that the homeowner should be held responsible for this accident.

I readily admit, I can't think of a convincing argument on that point.

What Does Tainted Egg Recall Mean For Your NY Food Poisoning Lawsuit?

jmcooper@jmcooperlaw.com (Blog Author)37754 — Mon, 23 Aug 2010 08:00:00 EST

In the aftermath of this massive egg recall, if (G-d forbid) you have contracted salmonella after consuming what you think may have been tainted eggs, you're probably thinking that you have a slam-dunk food poisoning case against the egg company. But while you may have a viable defective products case, the truth is that you certainly don't have a slam-dunk case.

Not by any stretch of the imagination.

As noted in "3 Avoidable Mistakes That Can Destroy Your Food Poisoning Lawsuit in NY" and "The Impact of Tainted Product Recall on Your NY Food Poisoning Case," there are certain elements to a successful food poisoning claim that it remains incumbent upon you to prove, through medically and scientifically reliable evidence, the following:

That you contracted the sickness complained of;
That you either used, or were exposed to the defendant's product;
That the defendant's product(s) was, in fact, tainted or defective;
That your sickness was, to a reasonable degree of certainty, caused by your exposure to, or use of, the defendant's tainted product.

I think we can all agree that this is certainly no "slam dunk" even under the best of circumstances.

Special Needs Student Left at Wrong Stop Gets Hit By 2 Passing Cars

jmcooper@jmcooperlaw.com (Blog Author)37799 — Mon, 23 Aug 2010 08:00:00 EST

The facts underlying some negligent supervision cases by schools and their bus companies really irk me someitmes.

According to a recently filed lawsuit, after being left at a different - and wrong - bus stop for a second straight day, a 10-year-old special needs student decided was left with little choice but to try to get home from that location. Unfortunately for him, it was far from a safe location, and when trying to make his way home, he was hit by two passing vehicles. As a result of the accident, the boy sustained serious personal injuries, including a concussion as well as broken bones in his arms and legs.

Undoubtedly, mistakes happen. But this, like leaving kids on buses, is patently unacceptable.

In Effort to Reduce Pedestrian Accidents, NYC to Install Countdown Clocks

jmcooper@jmcooperlaw.com (Blog Author)37384 — Mon, 16 Aug 2010 08:00:00 EST

In response to a lengthy safety study on traffic fatalities across New York City, the City's Transportation Commission announced earlier today a new broad-based initiative that will see the installation of roughly 1,500 countdown clocks at some of the City's most dangerous intersections, such as the Queens Boulevard, which was previously dubbed "the Boulevard of Death."

Another major part of the initiative includes reducing the speed limit to 20 mph from its current level of 30 mph in several areas. The reason for this is relatively obvious: the higher the speed of the vehicle, the smaller chance for survival for pedestrians hit by those vehicles.

I have to admit that I am pleasantly surprised by the alacrity with which the City seems to be approaching this report; the announcements of these new initiatives followed almost immediately the public release of the report.

Finding EMS Was Not Reckless, Jury Dismisses EMT's Injury Claim Against NYC

jmcooper@jmcooperlaw.com (Blog Author)37306 — Sun, 15 Aug 2010 08:00:00 EST

Unfortunately, this is not an unforeseeable scenario:

An EMT, rushing out of an EMS vehicle on his way to an emergency call, gets clipped by a passing car. The question is, since the EMS vehicle double-parked rather than trying to pull into a better parking spot, can NYC be held liable for this EMT's personal injuries?

Recently, in Seksaf v. City of New York, a New York County jury dismissed this accident claim for one simple reason: they did not believe that the EMS driver acted recklessly by double-parking the vehicle.

As noted in "Police Must Still Drive Responsibly, Even When Responding to Emergency, NY High Court Holds," EMS, like the police, are not governed by standard negligence standards; recognizing the emergent nature of their work, they are judged by whether they acted recklessly. And that was clearly not present here.

How to Defeat One Typical Defense to a NY School Negligence Claim

jmcooper@jmcooperlaw.com (Blog Author)37294 — Sat, 14 Aug 2010 08:00:00 EST

A recent tragedy that resulted in the death of a 2 year-old child at a daycare facility in Raleigh, North Carolina has legal significance in the school negligence realm on two fronts:

(1) It serves an important reminder to both daycare facilities and parents about safety precautions that should be taken with respect to assuring that all bookcases are secured, because children will undoubtedly try to climb them; and,

(2) less importantly, the school's knee-jerk response to the incident - which, in my view, is somewhat disturbing - was to deflect any blame for the incident by suggesting that the parent of this small child was solely responsible.

Unfortunately, this is not the first time I've seen this defense tactic; in fact, this is precisely the same tactic that the New York City Department of Education employed in a case that I recently handled where they allowed a 7 year-old child to leave the school unsupervised, and he was promptly hit by a car. Although the City's claim that the child had already been picked up from school by one of his parents was unsupported, that did not prevent them from making the allegation in an attempt to avoid any responsibility for the accident.

In order to undercut this defense, it is important that you gather all evidence, particularly witnesses, who can support your version of events that the child was not in fact picked up from school before the incident took place. It will help assure that you do everything possible to maximize the value of your child's accident claim.

Injured Cement Truck Driver Covered by NY Labor Law 240(1), Court Holds

jmcooper@jmcooperlaw.com (Blog Author)37264 — Fri, 13 Aug 2010 08:00:00 EST

In D'Alto v. 22-24 129th St., LLC, an interesting decision that was rendered just last week, New York's Appellate Division, Second Department held that despite the fact that cement truck driver Michael D'Alto was roughly 100 feet away from the construction site when he fell from his truck and sustained serious personal injuries, nevertheless, he was still entitled to recover damages under NY Labor Law 240(1), because:

"Labor Law § 240(1) is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed'" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513, quoting Quigley v Thatcher, 207 NY 66, 68; see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521), namely, "to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603; see Lombardi v Stout, 80 NY2d 290, 296).

"That the particular work was being performed at a distance from the site of immediate construction is of no consequence, as it is certain that the work was necessitated by virtue of the [cement being prepared for use] in the construction [site] and was incidental to its movement [to] the construction area" (Struble v John Arborio, Inc., 74 AD2d 55, 57; cf. Koch v E.C.H. Holding Corp., 248 AD2d 510).

This result is not altogether surprising.

It is consistent with the trial Court's holding in Matz v. Laboratory of Merchandising, where the Court held that even a building architect was protected by Labor Law 240(1).

Leaving Children On Bus: Another Tragic Instance of School Negligence

jmcooper@jmcooperlaw.com (Blog Author)37194 — Thu, 12 Aug 2010 08:00:00 EST

In yet another tragic example of what constitutes school negligence - particularly, as in this case - involving small children, a Florida daycare facility is being investigated after a small child was left unattended on the school's unventilated van while the rest of the children went to class.

Only after the school realized that she was unaccounted for, they went back and found her. But by then it was too late.

Making matters worse for the school, this is apparently not the first time that the school has been caught failing to follow the established procedures for logging in and out all students that board the school's vehicles; in fact, they were cited for these violations at least twice in the past 3 years.

May the family of this small girl know no more sorrow.

School Bus Lands In Ditch After Vomiting Driver Falls Out of Moving School Bus

jmcooper@jmcooperlaw.com (Blog Author)37123 — Wed, 11 Aug 2010 08:00:00 EST

Okay, so I came across this story, and it was just so bizarre that I wanted to share it.

Granted, some of the allegations in this case - that a school bus driver opened the bus door, and fell out of the door while in the course of vomiting - are so strange that I would be downright shocked if there weren't a starkly different version of the events.

On the other hand, it should be relatively simple to verify whether the school bus ended up in a ditch.

Either way, this will certainly make for an interesting negligence case against the bus company - and if the bus was owned by the school or municipality - a fascinating school negligence case.

Fan Hit By Broken Bat Sues NY Mets, MLB and Bat Manufacturer For Defective Bats

jmcooper@jmcooperlaw.com (Blog Author)36975 — Mon, 09 Aug 2010 08:00:00 EST

Although I've spent a fair amount of time in jury selection trying to convince potential jurors that they shouldn't jump to conclusions until they've heard all the evidence in a case, I guess that I too am sometimes guilty of the same thing.

I will explain.

Earlier this afternoon, on Monday, August 9, the New York Daily News reported that NY Mets fan James Falzon, who suffered multiple facial fractures that required corrective surgical pinning and plating when he was hit in the face by Luis Castillo's shattered bat, has now sued the bat manufacturer, MLB and the New York Mets.

Now, my initial reaction to this story was, what a frivolous case. After all, when you go to a professional sporting event, you assume the risk that you may be injured by balls or other things flying into the stands. In fact, last time I checked, most ticket stubs will say something like that on the back of it.

But as I read on, I realized that there may be something there.

The essence of the lawsuit, according to his attorney, is that the maple bats that were being used by MLB at that time (and which was involved in this incident) not only had a much higher rate of shattering than those bats that were made of ash, but also posed an unreasonable risk of harm by virtue of the manner in which they shatter - i.e., that they "explode." In legalese, this theory is called "defective design."

And here's where the true question lies: if what the plaintiff is saying is true, and these defendants were using bats that they knew - or should have known - were unreasonably dangerous, shouldn't they bear some responsibility if someone is seriously injured as a result? If not, what incentive do they have to keep the game safe for the fans?

How I Helped a Child Settle His NY School Negligence Case - And Got a Hug

jmcooper@jmcooperlaw.com (Blog Author)36816 — Thu, 05 Aug 2010 08:00:00 EST

Earlier today, I had one of the most gratifying experiences of my legal career.

While I've certainly settled New York auto accident cases before, and I've likewise resolved many cases on behalf of injured children, this case was different.

In this case, a young child suffered a badly fractured leg, which ultimately required surgical correction when he was hit by a car in front of his New York City school. How did this happen?

After being sent to a designated waiting room for parents to pick up these children who were no older than 7 or 8, my client, together with one of his friends, was able to sneak out of the room, down a 100' hallway, out the front doors of the school and into the street for a game of tag - and they were able to do so completely undetected by the school. You know why? Because the school had only one person watching over several classes worth of children in that room, and that monitor became distracted. And the school had no one stationed in the hallway to stop him or his friend.

Even worse, this was not the first time that children had been able to sneak out of that room and off of school grounds during school hours. But the school never did anything to correct the problem.

The school was negligent.

After years of waiting and wading through the New York court system, today this child's settlement, which provided him with a large amount of financial security the likes of which he has never seen in his life, will be his once he turns 18. This sweet young boy promised both the judge and me that he will use the money wisely, and only after consulting his parents.

As we were leaving the courthouse, he flashed a big smile, and gave his father and me a big hug. Sometimes, I really enjoy what I do.

Why This School Assault Case Would Never Survive in New York

jmcooper@jmcooperlaw.com (Blog Author)36730 — Wed, 04 Aug 2010 08:00:00 EST

On August 2, it was reported that an Asian woman sued the Pennsylvania school district attended by her child to recover damages for the personal injuries she sustained when she was attacked by some African American students at the school. According to her attorney, the basis for her claim is that the the school district "fostered a culture where Asian Americans were subjected to repeated, systemic terrorization at the hands of other students."

Maybe the law is different in Pennsylvania, but in New York's courts, this case would have almost no chance of survival. And here's why:

As noted in "How to Prove Your School Negligence Case Under New York Law," New York's schools will not be held accountable for the injuries sustained by either a student or a third party (such as a parent) if the injuries were sustained as the direct result of a spontaneous, or unforeseeable act. Stated differently, unless the plaintiff can prove that the school either knew or should have known about an imminent danger on its premises - and during school hours - yet failed to act reasonably to prevent it from occurring, the plaintiff will lose.

I, for one, can't see how the plaintiff in this particular case would - or could - prove that.

Study Finds Over 250,000 Children Treated For Household Cleaner Related Injuries Since '99

jmcooper@jmcooperlaw.com (Blog Author)36609 — Tue, 03 Aug 2010 08:00:00 EST

On August 2, 2010, the American Academy of Pediatrics released the study "Household Cleaning Product-Related Injuries Treated in US Emergency Departments in 1990-2006" which analyzes the data compiled from reported cases injured by dint of their exposure to assorted household chemicals over a 7-year period. In that time, well over 250,000 children under the age of 5 received medical treatment after being exposed to cleaning products ranging from laundry detergent and swimming pool chemicals to drain cleaners and bleach.

Fortunately, over that time span, the number of reported child injuries diminished by nearly half.

Importantly, and of note to parents, however, nearly 75% of the reported injuries involved children between the ages of 1 and 3, after they had swallowed these household chemicals. Based upon the report, the AAP reiterated its recommendation that parents undertake the following precautions:

Store all poisonous chemicals in locked cabinets that are both out of reach and sight of children;
Try to purchase only those household chemicals that have child-resistant packaging; and,
Do not transfer household chemical products from their original containers into different ones.

Although I don't see anything in this report that is particularly novel (other than the mildly encouraging numbers), a helpful reminder about product safety in the home is certainly welcome, don't you think?

Negligent Supervision Lawsuit Filed For 13 Year-Old Whose Fingers Were Amputated in Woodworking Class

jmcooper@jmcooperlaw.com (Blog Author)36431 — Mon, 02 Aug 2010 08:00:00 EST

If you were looking for yet another paradigm of negligent supervision in a school setting, you may want to consider the following scenario which is currently playing out in the California courts:

A 13 year-old middle school student is engaged in a woodworking class. Unfortunately, albeit predictably, he doesn't fully understand the dangers inherent in using the power tools in this class. One of the tools that was being used in this class was a jointer, which is a power tool that has a rotating cutter whose purpose is to straighten out the edges of a wooden board.

But rather than closely supervise these students while they worked with these tools, the woodworking teacher was in his own office, apparently busy selling candy to other students in order to raise money to send his own child to college.

The consequence of this teacher's actions were likewise predictable: this student lost two of his fingers. Permanently.

How Mass. Court Changed Its Law In Slip and Fall Case to be More Like NY

jmcooper@jmcooperlaw.com (Blog Author)36171 — Fri, 30 Jul 2010 08:00:00 EST

Reversing long-held precedent, the Massachusetts Supreme Court recently held that property owners are now responsible to clean up not only snow and ice that was improperly shoveled, but that they may also be held liable in negligence for failing to clear properly "natural accumulations" of snow and ice, stating:

"We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to `act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.'"

This ruling is more in line with the law in New York governing slip and fall over snow and ice cases. That's not to say that it's easy to prove one of these cases in New York; to the contrary, most slip and fall on snow and ice cases fail in New York's courts.

School That Loaned Ladder to Worker May Be Held Liable For Fall, NY Court Holds

jmcooper@jmcooperlaw.com (Blog Author)35699 — Fri, 23 Jul 2010 08:00:00 EST

In case you were ever wondering whether a property owner can be held liable if they lend equipment, such as a ladder, to a worker, and then that worker sustains a worksite injury resulting from his use of that borrowed eqiupment, New York's Appellate Division has now unequivocally provided the answer: yes - under the right circumstances.

In its July 20 decision in Navarro v. City of New York, a worker borrowed the New York City school's ladder in order to retrieve one of his work tools that had fallen between some window grates, and then when using that ladder, he fell due to the allegedly defective condition of the ladder. In reversing the trial court's ruling that dismissed his case that was premised on NY Labor Law 200, the Appellate Court held as follows:

"Where, as here, the accident arises not from the methods or manner of the work, but from a dangerous premises condition, "a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice" (Chowdhury v Rodriguez, 57 AD3d 121, 128; see Schultz v Hi-Tech Constr. & Mgt. Servs., Inc., 69 AD3d 701; Artoglou v Gene Scappy Realty Corp., 57 AD3d 460). Moreover, "when a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition" (Chowdhury v Rodriguez, 57 AD3d at 131-132)."

Paralyzed High School Football Player Settles School Negligence Case

jmcooper@jmcooperlaw.com (Blog Author)35726 — Fri, 23 Jul 2010 08:00:00 EST

Recently, it was reported that a high school football player who was tragically paralyzed while attempting to tackle another player settled his lawsuit that alleging that the school's negligence was at least partially responsible for his injuries.

In reading the report of the case, however, I was struck by one thing: the outcome may well have been different under New York law; or, in other words, the case would probably have been dismissed.

And here's why: in this case, the plaintiff relied upon the school's internal rules that required all players to have at least 10 practices and to have been shown an educational video on safe tackling before they were allowed to take the field in a football game. Based on the school's violation of that rule, the Court declined to dismiss his case on the grounds that he assumed the risk of injury that was inherent in playing football.

Conversely, under New York law, a company or entity's violation of its own internal rules "is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, a breach of those rules cannot be considered evidence of negligence." Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 841 N.E.2d 747, 807 N.Y.S.2d 588 (2005).

When NY Courts Reach Absurd Results: Worker Injured in Collapsed Trench Deemed a "Trespasser"

jmcooper@jmcooperlaw.com (Blog Author)35350 — Sun, 18 Jul 2010 08:00:00 EST

It is deeply disturbing when you see a decision coming out of New York's highest court that clearly ignores reality. Yet that is exactly what happened in the construction site accident case of Morton v. State.

In this case, the plaintiff descended into a trench that was dug in the middle of a New York State roadway in order to fix a broken water main, at which point an inadequately shored side wall collapsed, injuring the plaintiff. Although there was apparently no dispute that the failure to shore up the side wall constitued a violation of the construction worker safety statute, NY Labor Law § 241(6), the State contended that it could not be held liable for the plaintiff's personal injuries because it had no connection with the worker, and could not be deemed an "owner" under the staute.

In its bizarre decision agreeing with the State, the Court held that since the water company (for whom the plaintiff worked) did not obtain the required highway work permit, "claimant was a trespasser to whom the State owed no duty under Labor Law § 241(6)."

To quote John McEnroe: "You cannot be serious!"

Adding to the absurdity is that the water company specifically had added New York State as an additional insured on its policy governing the work that the claimant was in the middle of performing, a fact that the majority dismissed as having been done for "some unexplained reason."

Perhaps there is some small consolation to be had, though. There was a vigorous dissent that noted the inclusion of the State on the water company's insurance policy was certainly "not out of any charitable impulse" but because the water company knew that the state could theoretically be held liabile for work that was being performed.

Despite Finding that Worker Covered by NY Labor Law 240(1), Court Dismisses Case

jmcooper@jmcooperlaw.com (Blog Author)35256 — Thu, 15 Jul 2010 08:00:00 EST

In a strange, yet well-reasoned decision, a Brooklyn judge recently dismissed the construction site accident claim of a worker who claimed that he sustained personal injuries when he fell between two wooden 2 x 4's that had been nailed together as a makeshift ramp between the curb and the road surface.

Here's why it's weird: the judge went out of his way to find that although the plaintiff was merely verifying that the drivers delivering materials to the worksite had proper identification (and therefore, was not actively involved in any construction), he was nevertheless covered by Labor Law 240(1) because he was "performing work necessary and incidental to the erection or repair of a building or structure." So, at this point of the decision, you would naturally assume that the Court was going to find in the worker's favor and allow his construction accident case to survive.

But that's not what the judge did.

Instead, the court found that "[plaintiff] was not using the subject ramp as the functional equivalent of an enumerated safety device for plaintiff's benefit in his work. Rather, [plaintiff] used the ramp as a step, or like a passageway, while exiting his pick-up truck, en route to "challenging" the driver of the green truck for union identification ... Even if plaintiff had used the ramp in the course of performing his other steward duties... the ramp would not fall under the purview of the statute."

In other words, even though the worker was protected by Labor Law 240(1) (for more on this topic, see New York Labor Law 240(1) - Who Is Protected By This Statute), his claim still failed because he could not prove that his injuries were proximately caused by a breach of Labor Law 240(1).

Why It's So Important to Find Qualified Experts in a NY Products Liability Case

jmcooper@jmcooperlaw.com (Blog Author)35048 — Mon, 12 Jul 2010 08:00:00 EST

Sometimes when you read a decision, you can almost sense the disappointment of a party, who was convinced that they were in the right, only to have their hopes dashed when first a trial court, and then an appellate court, inform them that their case has been dismissed because although they did have an expert that supported their claim, their expert was not appropriately qualified in the relevant discipline. (For more on this issue, see "The Most Important Issue Before You Start a NY Products Liability Case").

And this was precisely the case in Rinaldi v. EvenFlo Co., Inc. In this case, the infant plaintiff sustained personal injuries when she fell from the soft fabric baby carrier that was manufacted by the defendant, EvenFlo, Inc. According to the plaintiff's mother, the baby fell when one of the buckles on the harness opened without warning. Not suprisingly, a post-accident inspection of the carrier by defendants' designated expert revealed no manufacturing or design defects, leading to the conclusion that the accident was caused by the plaintiff's mother's failure to follow the manufacturer's instructions.

Conversely, the plaintiff' put forth an accident reconstruction, biomechanics and mechanical engineering expert, as well as a board-certified human factors psychologist as her second expert, who opined that the baby carrier was in fact defectively designed.

Although "battles of the experts" are generally referred to the trier of facts for determination, the appellate court agreed that the lower court was correct in dismissing the case, and here's why:

"[N]either expert presented evidence that he had any practical experience with, or personal knowledge of, baby carriers such as the one at issue here, and neither expert demonstrated such personal knowledge or experience with baby carrier design or manufacture in general. Accordingly, the affidavits submitted by the plaintiff were insufficient to raise a triable issue of fact (see O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 513-514)."

Driver Runs School Bus Stop Signal, Then Explains "I Didn't Know What It Meant"

jmcooper@jmcooperlaw.com (Blog Author)34643 — Tue, 06 Jul 2010 08:00:00 EST

While I do not believe that immigrants should be compelled to speak English as a matter of public policy, I think there is an important caveat to that rule: if you want to drive any type of vehicle on U.S. roads, you MUST first understand the signs and the rules of the road.

In an article that appeared yesterday, it was reported that a driver ran through a children's school bus's stop signal, and then proceeded to hit a 16 year-old girl, who was launched into the air and onto her hood. Predictably, the girl has now sued to recover damages for her personal injuries stemming from this auto accident.

But what was not predictable was the driver's response to the police officer at the accident scene: she didn't know that the sign meant she had to stop.

Simply put, once public safety is implicated, it is clear that this issue trascends debate about people's sensitivites. And that is - or should be - beyond debate.

Principal on Student's Death: "We can't take responsibility for each and every kid"

jmcooper@jmcooperlaw.com (Blog Author)34684 — Tue, 06 Jul 2010 08:00:00 EST

While that quotation from a school principal in response to the drowning of one of his students immediately outside school grounds is indeed shocking, it begs the question: what on Earth was he doing in this job to begin with? Someone who clearly cares so little about the children in his charge should have no business coming near the job of a school principal, don't you think?

His other comments about the nature of the school's (lack of) supervision are equally telling:

"We don't know whether he had attended school or not. He might have gone to the stream directly from school. Their class teacher was on leave and there was no replacement. The class monitor might have taken their attendance ... we can't force them to remain in the school premises, until and unless they are scared of us."

Amazingly, from the article it appears that no disciplinary action will be taken against the principal. Apparently, in that part of the world there is no enforceable doctrine of school negligence or negligent supervision. Because, quite frankly, this case fits the bill to a "T."

When Companies (Dell) Resort to Absurdities to Conceal Defective Product Design

jmcooper@jmcooperlaw.com (Blog Author)34328 — Wed, 30 Jun 2010 08:00:00 EST

Okay, so this excuse is one of the funniest I've seen for a product failure:

Dell: the reason that our computers are failing is because you've asked them to perform unusually difficult mathematical computations.

In reality, however, as noted in a recent New York Times article, Dell's desktop PCs were rife with defective electrical components that were leaking chemicals and causing the malfunctions. In fact, documents from the North Carolina case confirm that Dell's employees actively knew that their computers were likely to fail, but were following a corporate policy of denying the problem, and then replacing defective parts with other defective components. For example, one internal e-mail from a Dell employee states "[W]e need to avoid all language indicating the boards were bad or had ‘issues' per our discussion this morning."

Naturally, this tactic prevented Dell customers from protecting their businesses' valuable data. Indeed, and ironically, the law firm representing Dell also experienced problems with their Dell computers.

Amazingly, Dell's own Internal documents demonstrate that Dell shipped more than 11.5 million computers between May 2003 and July 2005 that they knew - or should have known - were likely to fail because of the defective components.

Has Dell learned nothing from Toyota's tactics? Apparently not.

Brooklyn Park Removes Defective (and Ridiculous) $84,000 Playground Equipment

elieschulman@gmail.com (Blog Author)34393 — Wed, 30 Jun 2010 08:00:00 EST

Sometimes you just wonder what on earth people are thinking.

After spending over $80,000 installing metal domes (how it came to that astronomical number, I'll never know) for children to play on at the new Brooklyn Bridge Park, the Empire State Development Corporation, which oversees the park, removed those domes after receiving numerous complaints that the domes - which sit directly in the sunlight - actually got hot, and was burning childrens' hands and feet.

In a move that was clearly calculated to head off any thoughts of litigation, or more specifically, a defective products or personal injury claim by any of the children (or their parents), the manufacturer issued a statement claiming "The domes met national and international play structure safety standards."

But does that really matter?

Interestingly, not as much as you might think.

As a New York appeals court recently held, the Consumer Products Safety Commission's published guidelines with respect to playground equipment are not binding or authoritative on manufacturers. In fact, they may not be relied upon to establish a negligence or defective design claim at all.

Looking for a Prime Example of Constructive Notice of a Defect In NY? Here it is.

jmcooper@jmcooperlaw.com (Blog Author)34324 — Tue, 29 Jun 2010 08:00:00 EST

It is indeed rare that you come across a news story that so aptly and vividly demonstrates a principle of law. But the Metropolitan Transportation Authority's audit, which found that the collapse of the brick ceiling at the New York City Transit Authority's 181st Street Station in Washington Heights nearly one year ago had been "on the brink of collapse" for over 10 years without the Transit Authority taking any corrective action, certainly fits the bill for finding the Transit Authority negligent under the doctrine of constructive notice.

In this case, the inspector general's report cited "systemic weaknesses in the adequacy of N.Y.C. Transit's station inspection programs" as the chief reason for this failure. One of the primary examples cited in his report is that despite repeated requests to repair the ceiling, which employees feared was unstable, the authorization to schedule the repair - not even to perform the repair itself - did not come until 3 years later.

As noted in "Why Many Slip and Fall On Snow & Ice Cases Fail in New York's Courts," one of the ways that the owner of a property can be held liable in negligence for defective and/or hazardous conditions on their premises is where they either knew, or, in the exercise of reasonable conduct, should have known about the existence of the defective condition, yet failed to take adequate, timely and reasonable measures to correct the condition.

I can hardly imagine a clearer case of negligence that is proven through constructive notice under New York law.

NY Appeals Court Denies Judgment to Worker That Fell From Ladder

jmcooper@jmcooperlaw.com (Blog Author)34201 — Mon, 28 Jun 2010 08:00:00 EST

In an interesting twist, a New York appeals court held in a June 15 decision that a defendant can rely upon notations in a construction worker's medical records to defeat his claim that his construction site accident was caused by faulty - or non-existent - safety equipment.

While a closer reading of this decision, in Wilson v. Yemen Realty Corp. suggests that the Bronx trial court - and the appellate court above it - were disinclined to grant anyone summary judgment, and thereby make a determinative finding of liability when not even one deposition had been held, it is nevertheless interesting in that it confirms one more way and reason why fewer New York construction site accident cases are succeeding.

Tragic NYC Student's Drowning a Paradigm of School Negligence

jmcooper@jmcooperlaw.com (Blog Author)33932 — Tue, 22 Jun 2010 08:00:00 EST

This is terrible.

A 12 year-old girl drowns at a Long Island beach because her New York City school took her to the beach on a class trip - but never bothered to assure that there were any lifeguards. That's right: None.

I can guarantee you this: a lawsuit is coming. And you know what? It should.

Because maybe, just maybe, being hit in the pocketbook will finally wake that school up to assure that they never allow school negligence, or in legal terms, "negligent supervision," like this to happen again.

Assaulted By Patient at NY Hospital, Mother's Negligent Supervision Claim Survives

jmcooper@jmcooperlaw.com (Blog Author)33848 — Mon, 21 Jun 2010 08:00:00 EST

Sometimes, from the very start of a court opinion, you can sense which way the court is going to decide. And, considering the disturbing facts of Davis v. Brookdale Univ. Hosp. & Med. Ctr., I can't blame the judge for finding the way he did.

In this case, while visiting her daugher at the defendant hospital's pediatric ward, the plaintiff's daughter's roommates became rather rowdy, and began cursing and threatening the plaintiff and her daughter. As the roommates' improper behavior continued and escalated, the plaintiff asked that security remove the other parties from the room. Instead, the hospital's security personnel watched the scene continue to escalate for over 1 hour, and stood by as the roommates assaulted the plaintiff with repeated blows and sharp objects.

For some strange reason, the plaintiff did not commence suit until nearly 3 full years later. In seeking to dismiss the complaint, the hospital contended that since this action arose out of an assault, it should be governed by the one year statute of limitations governing assaults rather than the 3-year statute of limitations for negligent supervision actions, and that the fellow patients' assault was a "spontaneous and unexpected criminal assault that was not foreseeable."

The Brooklyn trial court disagreed. And here's why:

The defendant hospital's own security guard, in his testimony, "[A]dmitted that he did nothing for at least five minutes and allowed the menacing and threatening behavior to continue to escalate without calling for assistance on his two-way radio until after the assault had begun. [H]e further testified that prior to the assault the assailants 'turned on me' and 'they started cursing me, cursing at me' yet he still did nothing."

The Court further held that "In light of the uncontroverted testimony that Bennett and her friends' threatening and menacing behavior attracted the attention of hospital personnel, including a security guard, for as much as an hour prior to the assault, there is an issue of fact as to whether the assault was foreseeable ... because "The criminal intervention of third parties may be a "reasonably foreseeable" consequence of circumstances created by the defendant. Kush v. City of Buffalo, 59 NY2d 26, 33, 462 NYS2d 831, 449 NE2d 725.

That said, I would still be suprised if the defendants don't appeal this decision.

NY's High Court Takes Extreme Stand on School Assault Case

jmcooper@jmcooperlaw.com (Blog Author)33381 — Sun, 13 Jun 2010 08:00:00 EST

In its June 10 decision in Brandy B. v. Eden Central School District, New York's Court of Appeals made it even harder to win a negligent supervision case in New York. And while I am not sure that the Court ultimately reached the wrong result in this case, I am troubled by the means through which the Court got there.

In this case, a 5 year-old girl was (allegedly) sexually assaulted by an 11 year-old boy that was on her school bus. This boy had anything but a clean record, however.

As noted in "How a School Can (Not) Be Liable for an Assault Under New York Law," after being removed from his home and placed in foster care at age three due to findings of possible physical abuse and neglect, this boy was later returned to his father and step-mother upon reaching age 11. In the interim period, he had been institutionalized in response to episodes of severe aggression at home.

After two years without incident (his prior acts had included pleasuring and exposing himself in public) and positive reviews, this 11 year-old student was recommended for, and ultimately mainstreamed into, a 5th grade class. And that is when the alleged sexual assault occurred.

In affirming the dismissal of this sexual assault and negligent supervision case, the Court asserted that since there had been no reported incidents with regard to the 11 year-old boy for roughly two years before this incident, "[T]he alleged sexual assault against [the infant plaintiff] was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated by the school district."

And here's where I (and the dissenting judge in this case) take serious issue with the decision: shouldn't a jury be the one to decide whether the school should have seen this coming? Why is the Court taking it out of their hands?

Under the particular circumstances of this case, I don't think it is unreasonable for a jury to conclude that the school should have had some heightened responsibility to keep close supervision on this 11 year-old boy, and thereby protect its other students - just as a responsible parent would act.

Another Frivolous Negligent Supervision Case Dismissed By NY Appeals Court

jmcooper@jmcooperlaw.com (Blog Author)32997 — Mon, 07 Jun 2010 08:00:00 EST

Reading Harris v. Five Point Mission Camp Olmstedt, the Appellate Division's decision to reverse the trial court and dismiss this negligent supervision case doesn't even seem like a close call.

In this case, the 13 year-old plaintiff was injured when both he and another camper fell over each other while simultaneously trying to kick a soccer ball. At that time, the plaintiff and his fellow campers were being supervised by two counselors, including one who was a mere twelve feet away when the accident happened.

So what did the camp do wrong?

That's a very reasonable question. And, not surprisingly, one that the appeals court found no satisfactory answer for. As the Court noted,

"[S]chools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 NY2d at 49; Doe v Department of Educ. of City of New York, 54 AD3d 352, 353; Paca v City of New York, 51 AD3d 991, 992) ... [E]ven if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained (see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910; Siegell v Herricks Union Free School Dist., 7 AD3d 607)."

In other words, unless you can show that the camp was negligent, and that its negligence was somehow caused your accident, you cannot recover. It seems fairly clear that neither element was present in this case.

NY Construction Worker Who Was Refused Safety Equipment Awarded Judgment

jmcooper@jmcooperlaw.com (Blog Author)32710 — Wed, 02 Jun 2010 08:00:00 EST

Considering that both a site owner and a contractor can be held strictly liable under NY Labor Law 240 if construction workers are injured due to their failure to furnish the workers with adequate safety devices, it certainly seems like the defendants in Vann v. YMCA acted foolishly.

In this case, the plaintiff contended that after complaining that he did not feel secure in removing aluminum siding from the owner's adjacent building, and therefore requesting some safety equipment, be it a scaffold or safety lines, he was purportedly told, "You do it or go home."

What happened next is not terribly surprising.

After using a ladder that was available (albeit not anchored), the plaintiff managed to climb onto a 6" wide cinder block wall, but when he turned around, he fell off the wall, sustaining serious personal injuries.

In granting the plaintiff's motion seeking summary judgment on his "scaffold law" claim, the Court held as follows:

"Defendants have not presented any evidence that there were ladders available for [plaintiff']'s use, or even that he would have been able to access the adjacent building with an extension ladder. They have therefore failed to raise an issue of fact as to [plaintiff]'s Labor Law 240(1) claim."

Teacher Says She's "Sorry" After Being Caught On Tape Beating Student

jmcooper@jmcooperlaw.com (Blog Author)32515 — Mon, 31 May 2010 08:00:00 EST

Recently, a school teacher was caught on videotape cornering, and then pinning and beating one of her students - all while at least one other teacher stood by and watched. (It appears that this teacher had come to this school after being fired by another school for being found with marijuana in his car - twice.)

And lest you think that this was a relative "bad apple" of this particular school, consider this: she had been voted the school's Teacher of the Year - twice.

Even more troubling, at least according to the teacher and her lawyer, is that this incident was made possible by an environment where the students were allowed to assault the teachers without consequence.

While I feel that this is a completely unacceptable excuse (and, frankly, after seeing the video, I don't know how you can possibly call it an excuse), these allegations do raise an important question: should the school bear responsibility, i.e., be held liable in negligent supervision, for this incident? If not, what incentive does the school have to change its ways?

In Defective Design Case, NY Court Raises Award from $500,000 to $1.25 Million

jmcooper@jmcooperlaw.com (Blog Author)32019 — Fri, 21 May 2010 08:00:00 EST

It's not every day that you see a court actually increase the amount of damages that is awarded to a personal injury plaintiff. But in Adams v. Genie Industries, that is exactly what happened.

In this products liability case, the plaintiff suffered injuries to his knee and wrist after falling off of the personnel lifting machine that serious wrist and knee injuries when he fell from a lift basket that was part of a personnel lifting machine that was both manufactured and sold by the defendant. Based upon expert testimony that was presented at trial, the plaintiff asserted that the defendant should be held strictly liable as well as negligent because the machine's stabilizers weren't fitted with an interlock device that would prevent the lift could from operating unless the stabilizers were in place. (Importantly, the expert also opined that proper outrigger interlocks would not only have prevented the plaintiff's accident from occurring in the first place, but they were available as far back as 1987 at a reasonable cost.)

Although the New York County jury awarded plaintiff a total of $500,000 in damages for his personal injuries, the trial court agreed with plaintiff's counsel that this award was inadequate, and therefore increased the award to $1.25 million. Given the size of the award, it is not surprising that this case was taken all the way to New York's highest court, the Court of Appeals.

Unfortunately for the defendant, it certainly looks like this effort was all for naught.

Frivolous Negligent Supervision Case Against NY School is Dismissed

jmcooper@jmcooperlaw.com (Blog Author)31478 — Wed, 12 May 2010 08:00:00 EST

I can't say I'm surprised that this case was dismissed.

On second thought, I am a bit puzzled - but it is why this school negligence case was even brought to begin with (for more on this topic, see Why Many (If Not Most) NY Playground Accident Lawsuits Are Dismissed). Reading the Appellate Court's opinion, I can discern no basis for holding the school liable for this child's injuries.

In Tannenbaum v. Minnesauke Elementary School, a second grade child was injured when one of his classmates pushed him from behind while getting on line for lunch. At deposition, the child apparently admitted that the teacher was immediately behind him, and that the teacher had repeatedly warned all of the students not to run or push.

In affirming the lower court's dismissal of the lawsuit, the Court stated as follows:

"Schools are under a duty to supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision (see Mirand v City of New York, 84 NY2d 44). However, there is no liability absent a showing that the negligent supervision was a proximate cause of the injury sustained (see Mayer v Mahopac Cent. School Dist., 29 AD3d 653).

"A school district's alleged lapse in supervision is not a proximate cause of an accident where that accident occurs in so short a span of time that even the most intense supervision could not have prevented it" (see Janukajtis v Fallon, 284 AD2d 428, 430; Convey v City of Rye School Dist., 271 AD2d 154, 160) (emphasis supplied).

In light of this apparently uncontroverted evidence, I wonder what information the plaintiff's attorney gleaned during his initial consultation with the client that led him to believe there might be a viable school negligence case.

Then again, the explanation may lie in the same last name that is shared by the plaintiff and his attorney.

Construction Worker Who Erected Own Scaffold Still Entitled to Recover Under NY Labor Law

jmcooper@jmcooperlaw.com (Blog Author)31488 — Wed, 12 May 2010 08:00:00 EST

This is a strange case.

In Tapia v. Mario Genovesi & Sons, Inc., the plaintiff was injured at a New York construction site when the makeshift scaffold that he was working on collapsed. The interesting aspect to this case is that this was no o rdinary scaffold; to the contrary, since he needed to use a scaffold to complete his work, and there was no scaffold at the worksite, his employer provided him with both materials and specific instructions on how to put together the scaffold. After doing so - but before using it - the plaintiff showed the completed scaffold to his boss, who apparently approved of its construction.

Not surprisingly, shortly after plaintiff began using the scaffold, it collapsed.

In its April 13 order reversing that part of the lower court's order that denied his motion seeking summary judgment based on a violation of New York Labor Law §240(1) , New York's Appellate Division, Second Department stated as follows:

"Since the scaffold collapsed, the plaintiff established ... that he was not provided with an adequate safety device to do his work, as required by Labor Law §240(1), and that this statutory violation was a proximate cause of his injury (see Dos Santos v State of New York, 300 AD2d 434; Pineda v Kechek Realty Corp., 285 AD2d 496, 497)."

Reading between the lines of this decision, it appears that the defendants had argued in the lower court that the plaintiff should be barred from recovering because he erected the scaffold that collapsed, and therefore, was solely at fault for his own accident.

But, in my view, this argument is terribly flawed on policy grounds: simply put, if defendants' argument were allowed to succeed, they would be effectively discouraged from providing their employee construction workers with adequate safety devices at work sites, instead urging their employees to fashion their own protective equipment - a result that is directly at odds with the stated purpose for Labor Law §240(1).

5th Grader Claims School Teacher Ignored Her Injuries - Deliberately

jmcooper@jmcooperlaw.com (Blog Author)31403 — Tue, 11 May 2010 08:00:00 EST

Last week, a 5th grader in a New Mexico school was injured while on the playground, gashing her face and suffered two loosened permanent teeth. While that is upsetting, the teacher's reaction, at least according to the parents of the child, is troubling: the teacher refused to attend to the child due to differences she had with the child's parents.

Quite frankly, I don't care what the politics of the situation are; we entrust teachers with the lives and well-being of our children for the entire time that the children are under their supervision and care. Such a deliberate dereliction of duty - if true - is grounds for immediate dismissal, if for no other reason than she allowed a child under her care to sit bleeding and in pain in her classroom - and risking further infection or aggravation of the injury.

The mere fact that such an allegation can be leveled against a school is disturbing, for it charges the school with actions that transend school negligence, and extend into the realm of gross neglect.

Why Having Adequate Safety Devices Isn't Enough to Defeat a New York Scaffold-Law Claim

jmcooper@jmcooperlaw.com (Blog Author)31021 — Tue, 04 May 2010 08:00:00 EST

You might be tempted to think that merely having the appropriate safety devices available at a worksite would be enough to exempt you from liability for a construction site accident in New York. But you'd be dead wrong.

As noted in "How to Prove a Construction Site Accident Case in New York," New York Labor Law § 240(1), also known as the "scaffold law," requires that owners and contractors provide the workers with safety devices at construction sites, particularly where elevation-related work is involved. In that vein, owners and contractors have been successful in defeating these § 240(1) claims where the workers failed to use proper sized - and available - safety devices, such as a ladder. See, e.g., Robinson v. East Medical Center, LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589.

On the other hand, there are cases like Gallagher v. New York Post, 14 N.Y.3d 83, .... N.Y.S.2d .... where the owner of the site did not succeed in defeating the plaintiff's scaffold law claim. In that case, the plaintiff fell through an uncovered hole in the floor between the first and second floors of the building when his saw blade jammed in the flooring that he was in the middle of cutting.

Interestingly, it was not as if there weren't safety devices at the site; to the contrary, the project manager was specifically informed that safety harnesses were available and that the ironworkers on the site - such as plaintiff - should use them. But there was one problem: there was absolutely no proof that the plaintiff or any of the other workers at the site had ever been told about the availability of these safety devices, let alone to use them. To the contrary, the plaintiff's own supervisor testified that the plaintiff had not been given any safety equipment, nor was there any such protective equipment anywhere near the accident site.

Consequently, unlike that line of cases where the plaintiff's recovery under New York's Labor Laws is barred because his own negligence was the sole proximate cause of the accident (see, e.g., "A Fatal Mistake That Can Ruin Your Construction Site Accident Case") the Court concluded that this "is not such a case" because there was no evidence that plaintiff "knew where to find the safety devices ... or that he was expected to use them."

NY Court Allows Injured Central Park Sledder's Case to Continue - For Now

jmcooper@jmcooperlaw.com (Blog Author)30727 — Wed, 28 Apr 2010 08:00:00 EST

Just because you go sledding doesn't mean you inherently risked being injured; at least not by a metal pole that was not readily visible, held a New York trial court in Han v. CVJ Corp.

In this case, which is scheduled to appear in tomorrow's New York Law Journal, the plaintiff, who was sledding in New York's Central Park, sustained injuries to his hand when he came in contact with the hard base of a public art exhibit that was at least partially concealed to the snow accumulation.

Although the defendants moved to dismiss the action, arguing that they could not be held liable because there was still a "storm in progress" at the time of the accident (for more on this topic, please see "Why Many Slip and Fall on Snow & Ice Cases Fail in New York's Courts"), the Court ultimately rejected their argument, noting that the plaintiff did not claim that he fell on snow; rather, the plaintiff claimed that he was injured because the defendants failed to warn him about the dangerous, concealed exhibit base, in violation of their responsibility to maintain their premises in a reasonably safe condition and warn lawful pedestrians about potentially dangerous conditions that were and/or are not readily visible

NY Court Holds Safety Consultant Not Liable For Construction Site Accident

jmcooper@jmcooperlaw.com (Blog Author)30692 — Tue, 27 Apr 2010 08:00:00 EST

In accordance with the Mian v. City of New York case cited in our earlier article, Construction Manager Liability for Worksite Accidents Under NY Law, in Gaspar v. LC Main, et al., a New York County trial court held that a worksite safety consultant cannot be held liable under Labor Law §§ 200, 240(1) and 241(6) for a worker's construction accident-related injuries.

The Court's reasoning for granting the safety consultant's motion to dismiss was fairly straightforward:

"With respect to supervision and control, "'[i]t is well settled that an implicit precondition to th[e] duty [to maintain a safe construction site] is that the party to be charged with that obligation" 'have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition'." Hughes v. Tishman Constr. Corp., 40 AD3d 305, 306 (1st Dept 2007).

"The Appellate Division, First Department, has held that this rule will bar claims against a safety consultant where the safety consultant 'was not the supplier of safety equipment to the job site, did not direct, supervise or control plaintiff or his coworkers in the performance of their duties, and there is no evidence that it acted negligently or otherwise unreasonably as the site safety consultant.'

When you take a step back, this rule makes an awful lot of sense; why should a safety consultant with no say in what the plaintiff does - or doesn't do - at a worksite be held liable if something goes wrong?

Building Architect Protected By Construction Site Safety Laws, NY County Courts Says

jmcooper@jmcooperlaw.com (Blog Author)30500 — Sun, 25 Apr 2010 08:00:00 EST

Nice try, but no cigar, said a New York County judge. And she was right.

In Matz v. Laboratory Institute of Merchandising, the plaintiff was an architect who was hired to go to the worksite to give dimensions to the jobsite contractor so that they could locate audiovisual devices that had been required by the blueprints. These dimensions were critical to the project, because they were needed to guide the contractor how to install the containers of these devices before the ceilings on the project could be closed.

In seeking dismissal of the plaintiff's Labor Law claims, the defendant raised an interesting argument: since the plaintiff's work at the site was, at best, only incidental to the construction, she is not the type of "construction worker" that the statutes were designed to protect.

(As we've previously noted in "Construction Site Injuries and New York's Labor Laws," Labor Law §240 (1) imposes absolute liability upon an owner or general contractor for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure (Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, 523 [1985]; Correia v. Professional Data Management, Inc., 259 AD2d 60, 63 [1st Dept 1999]). The duty imposed by Labor Law §240 (1) is nondelegable and an owner or contractor who breaches that duty may be held liable in damages regardless of whether they actually supervised or controlled the work (Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993]).)

In rejecting the defendant's position, and granting the plaintiff summary judgment on her claim, however, the Court stated as follows:

"[P]laintiff's duties did not fall into a 'separate phase easily distinguishable from other parts of the larger construction project" and the work was "ongoing and contemporaneous with the other work ... In addition, plaintiff worked for a company that was carrying out a contract involved in the construction and alteration of the building - activities covered by section 240(1)."

Well, you can't really blame them for trying, can you?

The Most Formidable Defense to a New York Construction Site Accident Case

jmcooper@jmcooperlaw.com (Blog Author)30335 — Wed, 21 Apr 2010 08:00:00 EST

In our post a few months ago entitled "The Most Important Exception to Owner/Contractor Liability for Worksite Accidents in NY," we discussed how one and two-family dwellings are, generally speaking, exempt from Labor Law §§200, 240(1) and 241(6) [a/k/a, the "homeowner's exemption"].

There is an important - and more commonly litigated corollary to that rule, however: when the defendants did not own or exert any supervision or control over the worksite, or the mechanism by which the plaintiff was injured. I consider this a "common sense" rule; if the defendant has nothing substantive to do with the reason for the plaintiff's injury, then that defendant should not be held responsible for it.

And that is exactly the issue addressed in Bowles v. Clean Harbors Environmental Services, Inc., in a decision that was handed down on April 15 by New York's Appellate Division, Third Department.

In Bowles, the plaintiff was a safety technician who climbed a ladder in order to conduct air testing on a chemical tank to assure that it was safe to be cleaned. When the plaintiff reached the top of the ladder and reached over to put the meter in place to test the tank's air quality, the ladder he was using apparently malfunctioned, causing him to fall roughly 10 feet, and to suffer significant personal injuries. The defendant, was another contractor that was hired to actually clean the tank.

In affirming the dismissal of plaintiff's case, the Court stated as follows:

"Here, defendant was hired for the limited purpose of cleaning the tanks. Although defendant had supervisory control over its employees and the manner and method it used to clean the tanks, it could not enter or commence cleaning the tanks until [plaintiff's employer] issued a confined space permit ...The deposition testimony established that defendant had no authority to control the manner in which [plaintiff] performed his confined space inspection nor could defendant enforce safety standards in connection therewith ... defendant cannot be considered a contractor or an owner's agent to impose liability pursuant to Labor Law §§240 and 241."

This certainly seems like the right and just result to me.

How Site Owners Can Be Held Absolutely Liable in a NY Construction Accident Case

jmcooper@jmcooperlaw.com (Blog Author)30195 — Mon, 19 Apr 2010 08:00:00 EST

The Queens County trial court's decision in Bailey v. Beechwood Arverne LLC, that was published earlier today in the New York Law Journal has dual significance:

(1) it serves as a valuable reminder to construction site owners as to the cost of failing to reduce your agreements - or understandings - to writing (see also, "Why One Queens Building Owner Deserved to Lose His Breach of Contract & Indemnity Claim"); and,

(2) the Court held as a matter of New York law that Labor Law §241(6) applies to construction site accident cases where the plaintiff was injured by a moving excavator.

With regard to the latter point, and as discussed generally in our earlier post, "How to Prove a Construction Site Accident Case in New York," the Court here set forth more specifically how a plaintiff can prove a viable NY Labor Law §241(6) claim:

"Labor Law §241(6) imposes a nondelegable duty upon owners and contractors to provide necessary equipment to maintain a safe working environment, provided there is a specific statutory violation causing plaintiff's injury (see, Toefer v. Long Island R.R., 4 NY3d 399 [2005]); Bland v. Manocherian, 66 NY2d 452 [1985]; Kollmer v. Slater Electric, Inc., 122 AD2d 117 [2d Dept 1986]). The Court of Appeals has held that the standard of liability under this section requires that the regulation alleged to have been breached be a 'specific positive command' rather than a 'reiteration of common law standards which would merely incorporate into the State Industrial Code a general duty of care. (Rizzuto v. LA Wenger Contracting, 91 NY2d 343 [NY 1998])."

In light of this case law, it should be fairly obvious why the number of successful New York construction site accident cases is dwindling: there are not that many cases where the safety statutes are specifically on point.

How a Building Owner Can Be Liable for a Fire Under New York Law

jmcooper@jmcooperlaw.com (Blog Author)30106 — Fri, 16 Apr 2010 08:00:00 EST

If you were ever wondering how you can prove that a property owner was negligent and responsible for an event that would, at first blush, appear to be outside their control like a building fire (under New York law, you generally need to prove that the landowner either knew or should have known about the dangerous condition - which in legalese is called "notice," yet failed to remedy it in a timely fashion), you need look no further than the Chinatown fire of this past Sunday night, April 11.

As the New York Times reported, the building had more than 24 violations for hazardous conditions that were still unresolved at the time of the fire; these violations included lead paint, and, more pertinent to this incident - missing smoke detectors.

Unfortunately for those who lived in this building, this was an accident just waiting to happen. And I sincerely hope the owners of this building get their just deserts, which may include criminal sanctions.

NY Jury Finds Clothing Retailer Negligent, But Not Liable, For Plaintiff's Burns

jmcooper@jmcooperlaw.com (Blog Author)30065 — Thu, 15 Apr 2010 08:00:00 EST

This is a case that should make it into the law school texts, if for no reason other than it very clearly illustrates the interplay between the separate doctrines of negligence and proximate cause, and how one without the other is - and was - fatal to a plaintiff's defective products lawsuit.

Recently, in Luftman v. Fashion 21, Inc., a New York County jury held that a woman was not entitled to recover damages for the second and third-degree burns she sustained when her skirt became engulfed in flame almost instantaneously after a lit cigarette came in contact with the base of the skirt. Although the jury agreed that the defendant was negligent in failing to test the skirt for adequacy of flammability before selling it, the jury also held that the defendant was not liable to the plaintiff because the defendant's failure, or negligence, in this regard was not a proximate cause, i.e., a substantial factor, in causing the plaintiff's injuries.

This case is just one more reason why there are so few successful defective products lawsuits.

When You're Liable No Matter What Under New York Law

jmcooper@jmcooperlaw.com (Blog Author)30010 — Wed, 14 Apr 2010 08:00:00 EST

The title of this article is a non-legalese (read: normal) way of explaining what a "non-delegable duty" is under New York law.

And, in the April 15 edition of the New York Law Journal, there is a decision from a Kings County trial judge in Simon v. Astoria Federal Savings, et ano that analyzes how a non-delegable duty is treated when the one with the duty, in this case a landowner, contracts away the handling of this duty to an independent contractor, such as a snow removal company (this same rule would apply in construction site accident cases, as pointed out in "How to Prove a Construction Site Accident Case in New York"):

"Generally, under the rubric of 'nondelegable duty,' a party who retains an independent contractor will be found vicariously liable for the negligence of the contractor where the employer "is under a statutory duty to perform or control the work," or "is under a duty to keep premises safe," (See Paul Brothers v. New York State Elec. & Gas Corp., 11 NY3d 251, 257-59 [2008] [quoting Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 (1992)].) A property owner will, therefore, be vicariously liable where an independent contractor's snow removal efforts cause or exacerbate a dangerous snow or ice condition on the premises. (See Olivieri v. G M Realty Co., LLC, 37 AD3d 569, 570 [2d Dept 2007]; see also Backiel v. Citibank, N.A., 299 AD2d 504, 505-07 [2d Dept 2002]; Stockdale v. City of New York, 294 AD2d 195, 196 [2d Dept 2002].) This liability is not avoided by "a comprehensive contract for general maintenance." (See id. [Feurstein, J., dissenting].)

In other words, although you may be entitled to be indemnified by the contractor if the accident occurs as a direct result of the contractor's failure to execute properly their responsibilities under its service contract, that still does not give the landowner a free pass; otherwise, the non-delegable duty imposed on the landowner by the New York State legislature would be effectively rendered meaningless.

NY Court Holds Child's Risky Behavior Doesn't Bar School Negligence Claim

jmcooper@jmcooperlaw.com (Blog Author)29644 — Wed, 07 Apr 2010 08:00:00 EST

At first blush, the Court of Appeals (New York's highest court) decision of yesterday, April 6, in Trupia v. Lake George Central School District, appears to strictly limit the instances under which a child's negligent supervision claims will be dismissed as a matter of law to those cases involving "athletic or recreative activities." (In those cases, the defendants are insulated from liability on public policy grounds in order to foster the offering of these activities - which are valuable - to New York's children.)

As a practical matter - and unfortunately - this decision raises a lot more questions than it answers.

In Trupia, the 12 year-old plaintiff sustained serious personal injuries when he was joyriding down a bannister while attending defendant's summer program. In affirming the Appellate Division's order that denied the defendant's application seeking to bar outright the plaintiff's claim on the grounds that he had assumed the risk of being injured by engaging in this activity, the Court of Appeals stated as follows:

"Little would remain of an educational institution's obligation adequately to supervise the children in its charge if school children could generally be deemed to have consented in advance to risks of their misconduct. Children often act impulsively or without good judgment-that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so. If the infant plaintiff's harm is attributable in some measure to his own conduct, and not to negligence on defendants' part, that would be appropriately taken account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied."

Judge Smith, in a concurring opinion, stated it more plainly:

"Assumption of risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy 'assumed the risk' that his teachers would fail to supervise him. That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children, to decide how much supervision they need."

Judge Smith's concurrence didn't end there, however:

"The majority's [opinion] invites a number of questions that [it] makes no attempt to answer. Most obvious among them: What exactly is "athletic or recreative" activity? Indeed, why was Luke Trupia's chosen activity-sliding down a banister-not "recreative"? He was obviously doing it for fun. The majority says that "athletic and recreative activities possess enormous social value" (majority op at 5) - a value that presumably does not inhere in banister sliding. But why exactly is sliding down a banister (supposing it to be done by an adult with a taste for such amusement) of less "social value" than sliding down a ski slope or bobsled run? And if the latter activities are more socially valuable than the former, why is the banister slider, who chose the less desirable form of amusement, in a better position to recover damages than the skier or bobsledder?"

In my view, the logic of Judge Smith's opinion is dead-on, and it raises some very difficult questions. I hope the Court answers these questions in the near future, and provides greater clarity on these important issues.

Queens Court Dismisses Childrens' Mold Exposure Claims As Untimely

jmcooper@jmcooperlaw.com (Blog Author)29092 — Mon, 29 Mar 2010 08:00:00 EST

Contrary to popular belief, the time within which you must bring a mold exposure (or any other toxic exposure) claim starts to run from the time you discover that you are injured or ill - not from the time you realize the cause for your illness.

And, unfortunately for some children, they've just learned this lesson the hard way.

In Matter of Diaz v. City of New York, the children claimed that they suffered personal injuries due to their exposure to mold, peeling lead paint, and asbestos in their New York City school, but, according to papers their attorneys filed with the Court, they only learned that their illnesses were secondary to this exposure much later than they realized that they were ill, and well after their time to file a Notice of Claim against New York City had expired. (As a condition precedent to filing suit against New York City, New York's General Municipal Law Section 50-e requires that the City be provided with written notice of all tort claims within 90 days of the occurrence. For more on this topic, please see "The Most Critical Mistake to Avoid When Suing a New York Municipality").

Nevertheless, citing a litany of statutory and case law, the Court held that the childrens' personal injury and mold exposure claims must be dismissed as a matter of law, stating:

"[A] plaintiff's cause of action for damages resulting from exposure to toxic substances, where as here, starts to run from the date the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, that is, when the injury is apparent (CPLR 214-c[3]; see Annunziato v. City of New York, 224 AD2d 31 [1996]). The timeliness of petitioners' personal injury claims, therefore, turns on when petitioners discovered or reasonably should have discovered their injuries, not on the date of discovery of the specific cause of their injuries (see Matter of New York County DES Litig., 89 NY2d 506 [1997]).

"Contrary to petitioners' assertion, the controlling date is not ... when petitioners allegedly learned that their illnesses were caused by exposure to mold, peeling lead paint, and asbestos in the school, but rather the date when each petitioner first became aware of the manifestations or symptoms of his or her respective illness is determinative for statute of limitations purposes (see e.g. Searle v. City of New Rochelle, 293 AD2d 735 [2002])."

The moral of this story is painfully obvious: if you think you or your children may be suffering from exposure-related injuries, you have to move on it - quickly.

Finally, New York State to Allow E-Filing of Claims Against New York City

jmcooper@jmcooperlaw.com (Blog Author)29043 — Sun, 28 Mar 2010 08:00:00 EST

Finally.

For those of us who have been electronically filing just about all of our cases with the New York State courts, one type of claim has consistently held us back, slowed us down, and kept us with one foot firmly planted in the drudgery of "snail-mail" litigation: cases against New York City.

As we've noted elsewhere, such as in our article "The Most Critical Mistake to Avoid When Suing a New York Municipality," the requirement of filing properly a Notice of Claim against New York municipalities (such as New York City or the New York City Transit Authority) within 90 days of the occurrence has fostered a great deal of litigation, and is often difficult for lawyers to comply with, particularly when they are first contacted about a potential case only days before this time runs out.

The beauty of this new statute, at least from my perspective, is that it not only eliminates the need for the multiple copies that need to be served via certified mail, and the attendant trips to the post office, it also compels the City to issue an identification number that will serve as conclusive proof of filing and receipt. As a result, and in sum, it will reduce paperwork and expense, and will allow the prosecution of cases to move more quickly and efficiently.

If only we didn't have to wait 180 days for the law to become effective ...

Brooklyn Court Dismisses Student's Claim Against School for Sexual Assault

jmcooper@jmcooperlaw.com (Blog Author)29067 — Sun, 28 Mar 2010 08:00:00 EST

I empathize with the mother of this special needs student. I really do. But unfortunately, this case is another example of why many (if not most) negligent supervision cases against schools are ultimately dismissed.

In Abadia v. City of New York, the plaintiff, who was a special needs student at a NY City Public School, was sexually assaulted by 2 other students who were members of the school's band. Interestingly, although the defendants admitted that the assailants' disciplinary history included assault of a police officer several weeks before (as well as other assorted disciplinary problems), that alone was insufficient to put the defendants on notice such that they could be held liable for the sexual assault in question. Consequently, the Kings County trial court dismissed the case.

Unfortunately for this particular child, I think this decision will likely be upheld on appeal.

How One New Yorker's Slip and Fall Case Survived a Motion to Dismiss

jmcooper@jmcooperlaw.com (Blog Author)28946 — Thu, 25 Mar 2010 08:00:00 EST

In Slates v. New York City Housing Authority, the defendants moved to dismiss the plaintiff's claims that she suffered serious personal injuries as the result of her slip and fall on their steps, which were covered with black ice. As noted in our prior article, "Why Many Slip and Fall On Snow & Ice Cases Fail in New York's Courts," it is often extremely difficult to defeat these motions, particularly because the defendants have a fairly long amount of time from the end of a storm to remove the snow and ice.

But this plaintiff was extremely fortunate.

Her lawyer was able to elicit testimony from another tenant - who happened to be one of the defendants' employees - that she had noticed the area was very slippery (and had in fact slipped there herself) several hours before the plaintiff's accident occurred. Consequently, the Court held that the jury must be allowed to consider whether the defendant was negligent in failing to remedy the condition which caused plaintiff's fall.

Sometimes, I guess it's better to be lucky than good.

Even Without Direct Proof of Store's Negligence, Suffolk County Woman Wins Re-Trial

jmcooper@jmcooperlaw.com (Blog Author)28879 — Wed, 24 Mar 2010 08:00:00 EST

If the title of this article has left you puzzled, it is with good reason; how is it possible that a plaintiff can prove her case that she was injured by a defective and dangerous condition in the defendant's store without direct evidence that the defendant either knew or should have known about the condition, yet failed to remedy it in a timely fashion (which, in legalese, we call "notice")?

As pointed out in "Another Way to Prove Your Negligence Case Under NY Law," the answer is this: if the accident cannot, as a general rule, occur absent negligence, the mechanism causing the plaintiff's injury remained under the defendant's exclusive control, and the plaintiff was not actively negligent, then the plaintiff can recover under the doctrine of res ipsa loquitur.

In Keyser v. KB Toys, Inc., the plaintiff was injured when several boxes that had been loaded (presumably by defendant's employees) onto 7-foot shelves nearby, fell onto her back and neck. Although the defendant did not call any witnesses at trial that were actually present at the time of occurrence, the jury nevertheless believed the defendant's contention that some other store patrons may have pushed the boxes.

The trial judge didn't buy it, however. In granting a re-trial, the Court held that "[W]ithout such speculative evidence, nothing in the trial record supports anyone other than the defendant being responsible for the happening of the accident."

This is indeed a courageous decision. You can bet that the defendant is going to appeal it.

Why Some NY Schools Can Get Away With Negligent Supervision

jmcooper@jmcooperlaw.com (Blog Author)28881 — Wed, 24 Mar 2010 08:00:00 EST

Earlier today, I was contacted by a woman who was quite distraught after her teenage daughter, who has Down Sydrome, was reported missing from her New York school for children with special needs. She was ultimately found 5 hours later wandering by the side of a Manhattan highway, and taken home.

Although this mother was extremely angry with her daughter's school - and understandably so - I explained to her that she did not have a viable school negligence case under New York law because, fortunately, her daughter had not been harmed.

The flip side to this story is far more unfortunate: I fear that since nothing terrible happened to this child, the school may not take the necessary precautions to assure that a similar occurrence never happens again.

Brooklyn Court Awards Judgment to Injured Construction Worker on Labor Law 240 Claim

jmcooper@jmcooperlaw.com (Blog Author)28727 — Mon, 22 Mar 2010 08:00:00 EST

In Maximin v. 26-26 Jackson Avenue LLC, a decision from a trial judge in Kings County that is scheduled to be published in tomorrow's edition of the New York Law Journal, the plaintiff construction worker sued to recover for the personal injuries he suffered when a cinder block fell from the top of an elevator shaft and landed on his back while he was in the process of clearing debris from the lift in the elevator shaft.

Predictably. the plaintiff sought summary judgment pursuant to New York Labor Law §240(1) on the grounds that he was injured by a "falling object" (i.e., a gravity-related risk), and as a direct result of the defendants' failure to properly secure the cinder blocks. In opposition to the motion, the defendants made an interesting argument, claiming that Labor Law §240(1) only protects workers against objects that fall while being hoisted or secured - and the cinder blocks in this case did not fall into either category.

The Court was unpersuaded by this argument, however.

According to the trial court, "falling object" liability under Labor Law §240(1) is not solely limited to objects that are in the process of being hoisted or secured; rather, this statute covers objects that require securing as well. Consequently, the Court held that the defendant was not absolved from responsibility under this section when the plaintiff's injuries were caused - even in part - by the defendant's failure to furnish the statutorily required safety measures.

A careful reading of this decision also yields an important tip to the New York construction site accident attorney: the plaintiff prevailed on this branch of the motion because he proved that the defendant lacked a safety device to secure the cinder blocks in question. For additional information on this topic, I suggest you read "How to Prove a Construction Site Accident Case in New York."

NY Appeal Court Sets Limits on Elevation-Related Risks in Construction Site Accidents

jmcooper@jmcooperlaw.com (Blog Author)28676 — Sat, 20 Mar 2010 08:00:00 EST

Further augmenting our earlier blog post, "How to Prove a Construction Site Accident Case in New York," here's an important caveat that was articlulated by a New York appellate court in Fenty v. City of New York, et al.: just because a construction worker is injured while at an elevation at a worksite does not mean he is automatically entitled to protection under New York Labor Law § 240(1), and therefore, to recover damages for his personal injuries; rather, the injury must be directly attributable to the elevation-related risk.

In support of its holding, the Appellate Court cited a 2008 opinion from the Court of Appeals (New York State's highest court), which stated, in pertinent part, as follows:

"No Labor Law § 240 (1) liability exists where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first place."

Consequently, this plaintiff, who was injured when he jumped from a bucket lift in an effort to avoid the unforeseeable hazard of hot steam emanating from a ruptured pipe, was not only unable to recover under New York's Labor Laws, but was also unable to recover in common law negligence, because he could not establish that the defendants had "notice," i.e., that they knew or should have known, that this hazard was likely to occur.

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," NY 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 in NY 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.

New York 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, Queens 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.

Queens 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, NY 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 Accidents in NY

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 under New York law (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 New York 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 New York 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 New York 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.

Bronx Construction Site Worker Wins Summary Judgment on NY 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 Nassau County 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, Nassau County 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 Under NY Law

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?

Police Must Still Drive Responsibly, Even When Responding To Emergency, NY High 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."

Construction Site Worker That Was Injured When Makeshift Pulley System Failed May Recover Damages, NY 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 New York 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."

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

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 NY 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, NY 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.