Attorney Blog

70 Year-Old Manhattan Woman Killed in Pedestrian Knock-down

blog@www.jonathancooperlaw.com (news Author)17493 — Sun, 05 Sep 2010 08:00:00 EST

On Saturday, September 4, a 70 year-old woman was killed in a pedestrian knock-down incident when a passing van struck her at the intersection of 3rd Avenue and 30th Street in Manhattan.

At the accident scene, the police gave the defendant a Breathalizer test, which he apparently passed.

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.

Plainview Teenager Injured When Car Flips Over

blog@www.jonathancooperlaw.com (news Author)17338 — Mon, 30 Aug 2010 08:00:00 EST

After his car flipped over on Washington Avenue in Plainview early Monday morning, a 19-year-old was listed as being in "serious condition." A second, younger passenger in the car was hospitalized as well as a result of this one-vehicle car accident.

5 Year-Old Bronx Boy Injured in Hit and Run Accident

blog@www.jonathancooperlaw.com (news Author)17328 — Sun, 29 Aug 2010 08:00:00 EST

In a terrible hit-and-run accident, a 5-year-old Bronx boy was left in critical condition after being hit by an SUV, which police believe to be a green Nissan Pathfinder, along 214th Street near its intersection with Bronxwood Avenue in the Williambridge section of the Bronx. The boy was taken to Jacobi Medical Center.

2 Staten Island Men Killed When Car Flips Over Twice

blog@www.jonathancooperlaw.com (news Author)17335 — Sun, 29 Aug 2010 08:00:00 EST

Early Sunday morning, 2 Staten Island men were killed when their Nissan Altima flipped over two times, and then came into contact with a street pole along Arthur Kill Avenue near its intersection with Annadale Road.

At this point, no conclusion about the cause of the accident has been reached. However, from news reports it seems that accident investigators are working to ascertain whether intoxication or speeding were factors that contributed to this horrific car crash.

$18.5 Mil. Awarded to 3 Construction Workers Hurt in Scaffold Collapse

blog@www.jonathancooperlaw.com (news Author)17321 — Fri, 27 Aug 2010 08:00:00 EST

Recently, a New Jersey jury awarded nearly $19 million to three different construction workers that suffered severe worksite-related injuries when the scaffolding that was perched above them collapsed, causing one plaintiff to sustain comminuted fractures of his right leg that required 3 corrective surgeries, a second plaintiff to sustain fractures to his jaw, eye sockets and nose, as well as herniated discs in his lower back, and a crush injury to his foot, and the third plaintiff to fracture several vertebrae in his back, as well as fractures to the right ankle and leg.

Unlicensed Driver Crashes Into 16 Year-Old Bicyclist in Bronx

blog@www.jonathancooperlaw.com (news Author)17222 — Tue, 24 Aug 2010 08:00:00 EST

After a small Volkswagen Jetta crashed into his bicycle along East 188th Street in the Fordham section of the Bronx, a 16-year-old boy was left in critical condition at St. Barnabas Hospital. A preliminary investigation indicated that the driver of the Volkswagen did not have a valid New York State driver's license. Interestingly, investigators privately indicated their belief that the driver had the green light.

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.

Staten Island Woman Killed By Cab While Crossing Street

blog@www.jonathancooperlaw.com (news Author)17158 — Mon, 23 Aug 2010 08:00:00 EST

In a tragic pedestrian knockdown incident that took place this past Saturday, a Staten Island woman was killed when a taxi cab crashed into her, and then into two houses at the intersection of Vanderbilt and Tompkins Avenues in the Clifton area of Staten Island.

In Separate Motorcycle Accidents, 3 New Yorkers Killed on Sunday

blog@www.jonathancooperlaw.com (news Author)17160 — Mon, 23 Aug 2010 08:00:00 EST

Early in the morning of August 22, 3 motorcyclists were killed in two separate motorcycle accidents: one accident occurred on the southbound Van Wyck Expressway in Jamaica, Queens, while the second occurred in Manhattan, along the FDR Drive.

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.

Suffolk County Motorcycle Accident Leaves 1 Dead & 3 Others Injured

blog@www.jonathancooperlaw.com (news Author)16991 — Sun, 15 Aug 2010 08:00:00 EST

Late Saturday night, August 15, one man from Lake Grove was killed and three others were injured when a motorcycle crashed into a car in the Nesconset section of Suffolk County. The identity of the deceased has not yet been released by police.

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.

2 Year-Old Child Dies After School Bookshelf Falls on Her Head

blog@www.jonathancooperlaw.com (news Author)16988 — Sat, 14 Aug 2010 08:00:00 EST

Yesterday, it was reported that as a 2-year-old girl was trying to climb a bookcase at her Raleigh, North Carolina daycare facility, one of the shelves gave way and fell on her head. Tragically, she later died from her head injuries.

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.

Taxi Cab Jumps Curb & Slams Into Pedestrians Waiting at Bronx Bus Stop

blog@www.jonathancooperlaw.com (news Author)16874 — Tue, 10 Aug 2010 08:00:00 EST

Earlier this morning, a taxi cab crashed into a van along Kingsbridge Road at its intersection with University Avenue in the Bronx, causing the cab to jump up onto the sidewalk, and hitting several pedestrians that were waiting by a bus shelter.

According to paramedics at the scene, 4 people were critically injured in the accident, and the injured parties wree taken to two local hospitals - Jacobi Medical Center and St. Barnabas Hospital - for further treatment.

Jury Awards NY Couple Nearly $200,000 For Mold Damage

blog@www.jonathancooperlaw.com (news Author)16855 — Mon, 09 Aug 2010 08:00:00 EST

Recently, an upstate New York jury awarded nearly $200,000 to a couple for the damages that they sustained, including property damage and health problems secondary to mold exposure because the jury concluded that the contractor was negligent in building the house, which caused the mold problems. The plaintiffs claimed that the mold first appeared on the wooden floor joists in the basement, and later spread throughout the basement due to the contractor's negligently designed exterior drainage system, which failed to prevent moisture from infiltrating the basement.

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.

In Yet Another Product Recall, Toyota Acknowledges Steering Problems

blog@www.jonathancooperlaw.com (news Author)16728 — Tue, 03 Aug 2010 08:00:00 EST

Last week, Toyota announced the voluntary product recall of nearly 400,000 of its Avalon and Lexus LX 470 lines due to problems with the cars' steering interlock system which poses a crash hazard.

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.

Brooklyn Jury Awards Bicyclist Hit By Car $6 Million

blog@www.jonathancooperlaw.com (news Author)16628 — Sat, 31 Jul 2010 08:00:00 EST

Recently, a delivery man that was hit by a car while riding his bicycle in the Bedford-Stuyvesant section of Brooklyn was awarded more than $6 Million dollars by a Kings County jury. Apparently, in rendering its verdict the jury sided with the plaintiff's assertion that in addition to suffering fractures to his lumbar vertebrae and legs, he also suffered a traumatic brain injury.

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.

Brooklyn Victim of Hit-and-Run Truck Accident Awarded Over $40 Million

blog@www.jonathancooperlaw.com (news Author)16444 — Fri, 23 Jul 2010 08:00:00 EST

Siding with the plaintiff's version of the events that led to his loss of cognitive function and paralysis, a Kings County jury recently charged the defendant, a truck driver for Verizon, with responsibility for the pedestrian knock-down, and awarded the plaintiff over $40,000,000.

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).

Bronx Construction Worker Injured Under Scaffold Awarded $12.5 Million

blog@www.jonathancooperlaw.com (news Author)16138 — Mon, 12 Jul 2010 08:00:00 EST

Recently, a Bronx jury awarded more than $12,000,000 to a construction worker who sustained a badly herniated disc in his back when a heavy frame fell onto him from a scaffold beneath which he was cleaning. At the time of the construction accident, the scaffolding was in the process of being disassembled. Although the defense attorneys in the case argued that the plaintiff's herniated disc was not caused by this accident, but rather was the product of a pre-existing condition, the jury disagreed.

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)."

Did Strava Website Have a Role in Cycling Accident?

blog@www.jonathancooperlaw.com (news Author)15983 — Thu, 08 Jul 2010 08:00:00 EST

Recently, Californian bicyclist Kim Flint was killed when hit by a car while racing down a steep decline in his home town of Oakland. At the time of the bicycling accident, Flint was trying to reclaim his title of "KOM" or "King of the Mountain" for the fastest recorded cyclist speed among his peers that had uploaded their speeds at virtual cycling club, Strava. In a New York Times article, some of Flint's friends opined that the competition fostered by Strava played a large part in Flint's decision to take that risky ride that led to his death; apparently, the responding police department echoed those sentiments.

NY Appeal Court Allows Worker Injured By Mobile Crane to Pursue Claim

blog@www.jonathancooperlaw.com (news Author)16021 — Wed, 07 Jul 2010 08:00:00 EST

In McCoy v. Metropolitan Transp. Auth., a decision that was handed down on July 1, New York's Appellate Division, First Department (which covers New York's Bronx and Manhattan courts) affirmed the trial court's decision that denied the defendants' motion to dismiss a worker's claim that he was injured while working at a construction site. More particularly, the plaintiff claimed that he was injured while using a "mobile crane" as defined by Industrial Code, 12 NYCRR 23-8.2, and therefore, the defendants should be held liable for his injuries pursuant to New York Labor Law § 241(6) based upon their failure to provide proper safety equipment at a worksite. In affirming the trial court's decision denying the defendants' motion, the appellate court held that the trial court properly found that the evidence adduced in the lower court confirmed that the machinery in question qualified as a "mobile crane" for purposes of the statute.

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."

Fire Hazard Prompts Sony to Issue Major Recall For Defective Vaios

blog@www.jonathancooperlaw.com (news Author)15917 — Fri, 02 Jul 2010 08:00:00 EST

In response to reports about a product defect posing a burn hazard (thankfully, no reports of injuries have been received thus far) Sony, in conjunction with the CPSC, joinly announced that it was voluntarily recalling nearly 500,000 Vaio laptops. According to Sony, a firmware update, which can be downloaded directly from its website, is all that is needed to fix the problem.

This is far from the first time that Sony has been compelled to issue a safety recall for design defects in one of their laptops; in fact, it is the fourth such recall over the last 5 years. Two prior recalls revolved around defective computer batteries (which was not exclusive to Sony), and a third recall was related to defective wiring.

Scope Mouthwash Recalled Due to Packaging Defects

blog@www.jonathancooperlaw.com (news Author)15921 — Fri, 02 Jul 2010 08:00:00 EST

A defective design in the child-proof capping for Procter & Gamble's Scope Original Mint Mouthwash has led them to issue a nationwide recall of nearly 35,000 units, which were manufactured domestically. Since the $4 product contains ethyl alcohol - which is dangerous chemical for children - it must therefore, as a general rule, be secured by a child-proof cap. If there is no child proofing on the bottle, the manufacturer must clearly label the packaging to specify that the mouthwash is only appropriate for use in homes where children are not present.

In this defective product recall, consumers have been advised that they can determine whether the packaging is in fact defective by looking at the following: if they can twist off the container's cap off without squeezing the safety tabs on the caps, then the packaging is deemed not child-resistant.

As part of its recall, Proctor and Gamble is apparently offering to replace the product free of charge, or, as an alternative, a full refund of the mouthwash's purchase price.

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.

Mother Sues For School's Negligence in Causing Son's Death

blog@www.jonathancooperlaw.com (news Author)15810 — Sun, 27 Jun 2010 08:00:00 EST

Recently, and in the aftermath of the demise of her 13 year-old son at a middle school basketball game, a mother has sued Blount County Schools and the Maryville-Alcoa-Blount County Parks & Recreation Commission for the school's negligence in connection with his death, which was attributed to cardiac arrhythmia.

The basis of her claim is that the school was in violation of two state laws regarding automated external defibrillators (AED), which although required, were inaccessible during the emergency. According to the mother, her son's death would likely have been prevented had the device been accessible and timely used.

6 Month-Old Baby Killed By Falling Branch at NY's Central Park Zoo

blog@www.jonathancooperlaw.com (news Author)15811 — Sun, 27 Jun 2010 08:00:00 EST

In a tragic incident that occurred yesterday just outside the Central Park Zoo, a six-month old infant was killed when a large tree branch fell on her mother - who was holding her - and her.

Apparently, the mother is still in critical condition.

According to the New York City Parks Department, since the tree was located within the zoo limits, it is supposed to be maintained by the Wildlife Conservation Society, which runs the zoo.

Although you might be tempted to think that WCS is automatically liable for this incident under New York law, the truth is that liability is far from certain; like in a trip and fall case, a court may well find that the plaintiff may have to prove that WCS either knew, or should have known, that this branch was a danger, yet failed to remedy it in a timely fashion, which in legalese is referred to as "notice."

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.

Bronx Jury Awards $4 Million to Construction Worker In Slip and Fall

blog@www.jonathancooperlaw.com (news Author)15587 — Thu, 17 Jun 2010 08:00:00 EST

Folloing a trial, a Bronx County jury awarded more than $4,000,000 to 37 year-old construction worker Hassan Shabazz for the personal injuries he sustained which required a full knee replacement. In this case, the jury sided with the plaintiff's claim that the defendants were liable for his slip and fall accident because they actively created a dangerous condition in failing to properly clear the sidewalk from snow and ice.

NYC Crane Collapse Case Set For Trial on June 21

blog@www.jonathancooperlaw.com (news Author)15537 — Tue, 15 Jun 2010 08:00:00 EST

Jury selection in the criminal case against rigging contractor William Rapetti stemming from the crane collapse that occurred in Manhattan near the United Nations back in March of 2008 is set to begin next week, on June 21. In essence, several investigations concluded that Rapetti did a poor job of assuring the rig was properly secured and anchored, which led to the crane's collapse.

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.

Construction Worker Hurt on NY's Upper East Side

blog@www.jonathancooperlaw.com (news Author)15423 — Wed, 09 Jun 2010 08:00:00 EST

On June 7, a construction worker that was in the process of repairing a three-level Manhattan parking garage suffered serious injuries to his arm when a 10' x 13' piece of concrete fell from the parking garage's roof. Apparently, the construction worker's arm was pinned between the concrete and a pipe.

GM Recalls 1.5 Million Cars Due to Fire Hazard

blog@www.jonathancooperlaw.com (news Author)15408 — Tue, 08 Jun 2010 08:00:00 EST

Earlier today, GM recalled approximately 1.5 million of its vehicles due to design defect and fire hazard involving their heated windshield wiper fluid system. This is the second recall that GM has issued for this problem in the last 2 years, and applies to a wide range of their vehicles covering 4 model years - from 2006 through 2009 for the following vehicles: Cadillac DTS, Buick Lucerne, and Hummer H2; Cadillac CTS, Escalade, Escalade ESV and EXT, Buick Enclave Chevrolet Avalanche, Silverado, Tahoe and Suburban; the GMC Sierra, Acadia, Yukon and Yukon XL; and, the Saturn Outlook and 2009 Chevrolet Traverse.

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.

Staten Island Man Burned By Flammable Shirt Settles Claim For $300,000

blog@www.jonathancooperlaw.com (news Author)15340 — Thu, 03 Jun 2010 08:00:00 EST

Recently, a Staten Island man settled his claim that he suffered serious burn injuries to over 20% of his body when his t-shirt caught fire. In essence, the plaintiff claimed that the t-shirt was defectively designed because its chemical finish rendered the shirt unreasonably - and dangerously - flammable. According to the plaintiff, his contentions were supported by expert chemical analysis and testing. On the other hand, the retailer maintained that the plaintiff's accident was solely caused by his own negligence.

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?

Brooklyn Construction Worker Falls 5 Stories to His Death

blog@www.jonathancooperlaw.com (news Author)15245 — Sun, 30 May 2010 08:00:00 EST

On Thursday, May 27, it was reported that a 36 year-old Brooklyn-based construction foreman fell 5 stories to his death while working on a construction site in the Clinton Hill section of Brooklyn on Bedford Avenue. According to a preliminary investigation by New York City's Department of Buildings, the worker had not been using a safety harness (which would seem to violate New York Labor Law Section 240(1)). For additional information on this topic, please see "Why Having Adequate Safety Devices Isn't Enough to Defeat a New York Scaffold Law Claim."

Construction Worker Injured In Fall From Ladder at Triboro Bridge

blog@www.jonathancooperlaw.com (news Author)15246 — Sun, 30 May 2010 08:00:00 EST

On May 28, and in a separate construction accident from the Brooklyn construction site accident that occurred on May 27, the Associated Press reported that a construction worker hit his head after falling roughly 20 feet from a ladder he was using to work on the Queens portion of New York City's Triboro Bridge.

For additional information on how New York's Labor Laws apply to construction site safety, please read our article,

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).

In Tragic Accident in Upstate NY, Construction Worker Dies

blog@www.jonathancooperlaw.com (news Author)14679 — Tue, 11 May 2010 08:00:00 EST

In a tragic construction accident that occurred on May 3, a 34 year-old construction worker was killed when the earth bank that was beneath him collapsed, trapping him inside. He was later pronounced dead at the hospital.

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 Worker Hurt By Materials Falling Off Forklift Denied Judgment

blog@www.jonathancooperlaw.com (news Author)14405 — Thu, 29 Apr 2010 08:00:00 EST

In Ciccone v. Kendal On Hudson, the plaintiff claimed that he injured his arm when the boom of a forklift dropped suddenly, causing a stack of wallboard panels to strike the plaintiff's arm. In affirming the lower court's denial of his motion seeking judgment as a matter of law on his claims pursuant to New York Labor Law §§240(1) and 241(6), predicated on 12 NYCRR 23-6 [materials hoisting], the appellate court held that the lower court's order denying the motion was correct as to plaintiff's §241(6) claim, because the provisions of 12 NYCRR 23-6 specifically exclude fork lift trucks.

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?

Bausch & Lomb Settles NY Eye Infection Case For Over $500,000

blog@www.jonathancooperlaw.com (news Author)14264 — Sun, 25 Apr 2010 08:00:00 EST

In a recent New York County case, Bausch + Lomb Inc. settled a personal injury claim brought by a woman who claimed that she sustained permanent vision loss due to her use of the Bausch & Lomb's recalled product, ReNu with MoistureLoc over the course of several months. Although the ReNu with MoistureLoc product was recalled just about the time that the plaintiff began using it, the plaintiff alleged that Bausch & Lomb's consumer product recall was issued too late - and that they should have issued the recall several months earlier based upon the reports indicating that this product was likely to cause eye infections.

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 to Prove a Building Owner Was Negligent 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.

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.

Nassau Jury Awards Nearly $20 Million to Man Hit By Police Car

blog@www.jonathancooperlaw.com (news Author)14006 — Sat, 10 Apr 2010 08:00:00 EST

Recently, a Nassau County jury awarded nearly $20 million to a man who sustained serious personal injuries, including losing a leg after he was hit by a police car that, ironically, was in the process of chasing him on a harrassment charge. Not insignificantly, the jury's award included $3 million in punitive damages, because they found that the police officer's actions, which included deliberately driving up onto a sidewalk and pinning the plaintiff under both sets of his car's wheels, was, not surprisingly, excessive.

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 Â§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.

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

blog@www.jonathancooperlaw.com (news Author)12529 — Sat, 30 Jan 2010 08:00:00 EST

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

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."

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

blog@www.jonathancooperlaw.com (news Author)11680 — Fri, 11 Dec 2009 08:00:00 EST

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

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.

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

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

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

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

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

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

jmcooper@jmcooperlaw.com (blog Author)22487 — Fri, 27 Nov 2009 08:00:00 EST

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

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

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

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

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

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

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

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

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

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

CPSC Announces Largest Defective Children's Crib Recall Ever

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

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

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

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

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

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)11336 — Wed, 18 Nov 2009 08:00:00 EST

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

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

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

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

This begs two important questions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New York Appeals Court Forces Insurer To Defend Construction Company in Personal Injury Lawsuit

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

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

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

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

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

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

NYC Public School Must Notify Parent of Threat to Child, Bronx Court Holds

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

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

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

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

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

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

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

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

Can A Bar Be Held Responsible For Serving Liquor To A Drunk Under New York Law?

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

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

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

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

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

CDC Announces Child Passenger Safety Week

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

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

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

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

New York Jury Finds Product Manufacturer Not At Fault For Worker's Injuries

jmcooper@jmcooperlaw.com (blog Author)18710 — Mon, 21 Sep 2009 08:00:00 EST

For those who have little or no faith in our jury system, take notice. Sometimes, juries get it absolutely right.

Recently, a New York jury concluded that a chemical manufacturer was not responsible (or "liable," in legalese) for an electrical worker's injuries that were sustained when he sprayed the defendant's degreaser while leaning against the top of a utility pole that he was attempting to repair, and then suffered a severe shock.

Although the plaintiff contended that the spray did not adequately warn him that the spray could conduct electricity, and threfore, that there was a risk of sustaining a shock, the defense pointed out that the plaintiff had stepped out of his protective rubber basket, and was not wearing appropriate protective gloves. In short, the jury found that the plaintiff was responsible for his own accident.

This story is yet another example of why there are so few successful defective products lawsuits.

Fire Hazard Leads to Expanded Recall of Defective DVD Players

blog@www.jonathancooperlaw.com (news Author)10286 — Sun, 06 Sep 2009 08:00:00 EST

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

Defective Design Leads to Recall of Bicycle Trailer

blog@www.jonathancooperlaw.com (news Author)10071 — Sun, 23 Aug 2009 08:00:00 EST

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

Frivolous Lawsuit: Injured Skydiver Sues In Negligence

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

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

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

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

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

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

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

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)10013 — Tue, 18 Aug 2009 08:00:00 EST

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

Out of Control Taxi Crashes Into Upper West Side Subway Station

blog@www.jonathancooperlaw.com (news Author)10017 — Tue, 18 Aug 2009 08:00:00 EST

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

An Unsung Provision For Consumer Product Safety That Has Some Promise

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

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

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

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

The immediate and practical benefits to this provision are twofold:

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

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

blog@www.jonathancooperlaw.com (news Author)9951 — Tue, 11 Aug 2009 08:00:00 EST

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

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

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

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

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

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

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

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

Top Ten Recalled Children's Products Announced by CPSC

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

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

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

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

Children's Toy Dog Recalled Due to Choking Hazard

blog@www.jonathancooperlaw.com (news Author)9729 — Tue, 04 Aug 2009 08:00:00 EST

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

Black & Decker Issues Further Product Recall of Electric Hedge Trimmers

blog@www.jonathancooperlaw.com (news Author)9750 — Tue, 04 Aug 2009 08:00:00 EST

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

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

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

Russell Brands Recalls Defective Spalding Basketball Hoops

blog@www.jonathancooperlaw.com (news Author)9751 — Tue, 04 Aug 2009 08:00:00 EST

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

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

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

blog@www.jonathancooperlaw.com (news Author)9717 — Sun, 02 Aug 2009 08:00:00 EST

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

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

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

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

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

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

Fire Hazard Prompts Product Recall of Defective Washing Machines

blog@www.jonathancooperlaw.com (news Author)9688 — Thu, 30 Jul 2009 08:00:00 EST

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

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

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

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

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

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

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

Laceration Safety Hazard Prompts Recall of Baby Bouncer Seats

blog@www.jonathancooperlaw.com (news Author)9632 — Wed, 29 Jul 2009 08:00:00 EST

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

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

jmcooper@jmcooperlaw.com (blog Author)15926 — Tue, 28 Jul 2009 08:00:00 EST

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

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

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

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

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

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

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

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

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

>Defective manufacture;

>Defective design;

>Failure to warn;

>Negligence; and,

>Breach of warranty.

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

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

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

blog@www.jonathancooperlaw.com (news Author)9566 — Fri, 24 Jul 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)9571 — Fri, 24 Jul 2009 08:00:00 EST

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

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

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

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

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)9562 — Thu, 23 Jul 2009 08:00:00 EST

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

Children's Telephone Toys Recalled Due to Choking Hazard

blog@www.jonathancooperlaw.com (news Author)9543 — Tue, 21 Jul 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)9544 — Tue, 21 Jul 2009 08:00:00 EST

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

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

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

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

How Product Safety Recalls Can Help Prove A Defective Products Case in NY

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

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

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

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

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

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

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

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

In New York, Sometimes The Best Case Is One That Isn't A Case

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)9426 — Tue, 14 Jul 2009 08:00:00 EST

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

Energizer Recalls Defective Nightlights Due to Fire Hazard

blog@www.jonathancooperlaw.com (news Author)9430 — Tue, 14 Jul 2009 08:00:00 EST

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

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

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

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

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

Kolcraft Issues Recall for Defective Children's Play Yards

blog@www.jonathancooperlaw.com (news Author)9402 — Sun, 12 Jul 2009 08:00:00 EST

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

blog@www.jonathancooperlaw.com (news Author)9405 — Sun, 12 Jul 2009 08:00:00 EST

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

Fire By Throgs Neck Bridge Leads to Lane Closures

blog@www.jonathancooperlaw.com (news Author)9398 — Sat, 11 Jul 2009 08:00:00 EST

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

Two-car Collision Leaves Central Islip Woman Injured

blog@www.jonathancooperlaw.com (news Author)9399 — Sat, 11 Jul 2009 08:00:00 EST

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

CPSC Recalls Defective Smoke Detectors

blog@www.jonathancooperlaw.com (news Author)9400 — Sat, 11 Jul 2009 08:00:00 EST

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

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

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

blog@www.jonathancooperlaw.com (news Author)9378 — Fri, 10 Jul 2009 08:00:00 EST

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

NY Appeals Court Whittles Down Claims in Construction Site Accident Lawsuit

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)9309 — Mon, 06 Jul 2009 08:00:00 EST

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

FDA Issues Recall on Dry Milk Due to Salmonella Concerns

blog@www.jonathancooperlaw.com (news Author)9313 — Mon, 06 Jul 2009 08:00:00 EST

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

Defective Air Compressors Recalled Due to Risk of Fire

blog@www.jonathancooperlaw.com (news Author)9322 — Mon, 06 Jul 2009 08:00:00 EST

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

Children's Inflatable Boats Recalled Due to Safety Hazard

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

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

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

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

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

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

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

$1.5 Million Awarded to Home Depot Customer

blog@www.jonathancooperlaw.com (news Author)9275 — Wed, 01 Jul 2009 08:00:00 EST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Two Zicam Cold Remedy Products Recalled

blog@www.jonathancooperlaw.com (news Author)9038 — Thu, 18 Jun 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)9039 — Thu, 18 Jun 2009 08:00:00 EST

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

CPSC Recalls Defective Starbucks Coffee Grinding Machine

blog@www.jonathancooperlaw.com (news Author)9042 — Thu, 18 Jun 2009 08:00:00 EST

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

Zicam Recall Highlights Difficulties in Pursuing Defective Products Claims in New York

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

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

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

Pedicab and Taxicab Collide in Brooklyn

blog@www.jonathancooperlaw.com (news Author)9017 — Mon, 15 Jun 2009 08:00:00 EST

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

Study Claims That Employee Theft Rises as Economy Worsens

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

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

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

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

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

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

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

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

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

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

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

FDA Declares Clarcon Skin Products Unsafe

blog@www.jonathancooperlaw.com (news Author)8999 — Fri, 12 Jun 2009 08:00:00 EST

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

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

Trade Secret Soft Drink Formula Found To Have Traces of Cocaine

blog@www.jonathancooperlaw.com (news Author)8993 — Thu, 11 Jun 2009 08:00:00 EST

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

blog@www.jonathancooperlaw.com (news Author)8994 — Thu, 11 Jun 2009 08:00:00 EST

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

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

Norco Recalls Over 3,000 Defective Bicycles

blog@www.jonathancooperlaw.com (news Author)8969 — Wed, 10 Jun 2009 08:00:00 EST

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

NY Fish Recalls Salmon Due to Listeria Hazard

blog@www.jonathancooperlaw.com (news Author)8970 — Wed, 10 Jun 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)8945 — Mon, 08 Jun 2009 08:00:00 EST

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

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

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

Children's Pajamas Recalled For Failing to Meet Flammability Requirements

blog@www.jonathancooperlaw.com (news Author)8912 — Sun, 07 Jun 2009 08:00:00 EST

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

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

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

blog@www.jonathancooperlaw.com (news Author)8913 — Sun, 07 Jun 2009 08:00:00 EST

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

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

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

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

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

The Most Important Thing For Any Trial Witness To Remember

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

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

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

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

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

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

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

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

$14 Million Awarded to Victim of Fuel Tanker Truck Crash

blog@www.jonathancooperlaw.com (news Author)8874 — Thu, 04 Jun 2009 08:00:00 EST

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

60 Injured In Multi-Vehicle Accident Along BQE

blog@www.jonathancooperlaw.com (news Author)8866 — Wed, 03 Jun 2009 08:00:00 EST

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

Building A Winning Case

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

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

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

Suffocation Hazard Forces Recall of Infant Play Yards

blog@www.jonathancooperlaw.com (news Author)8863 — Tue, 02 Jun 2009 08:00:00 EST

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

Defective Cell Phones Recalled

blog@www.jonathancooperlaw.com (news Author)8855 — Mon, 01 Jun 2009 08:00:00 EST

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

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

How To Win Your Construction Site Accident Lawsuit in New York

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

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

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

Over 16,000 Defective Bicycles Recalled

blog@www.jonathancooperlaw.com (news Author)8711 — Fri, 22 May 2009 08:00:00 EST

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

Burn Hazard Prompts Recall of Defective Coffee Maker

blog@www.jonathancooperlaw.com (news Author)8712 — Fri, 22 May 2009 08:00:00 EST

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

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

Grating Collapse At Brooklyn Girls' School Leaves Several Students Injured

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

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

Why Rushing to Sue For Your Personal Injuries May Be The Wrong Answer in NY (Or Anywhere Else)

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

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

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

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

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

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

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

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

Fire Hazard Prompts Product Recall of Defective Specialty Candles

blog@www.jonathancooperlaw.com (news Author)8598 — Fri, 15 May 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)8596 — Fri, 15 May 2009 08:00:00 EST

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

Handlebar Defect Leads to Massive Recall of Defective Bicycles

blog@www.jonathancooperlaw.com (news Author)8597 — Fri, 15 May 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)8599 — Fri, 15 May 2009 08:00:00 EST

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

Food Manufacturers Group Publishes Proposals to Improve Defective Product Recalls

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

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

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

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

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

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

FDA Recalls Defective Face Paint

blog@www.jonathancooperlaw.com (news Author)8570 — Wed, 13 May 2009 08:00:00 EST

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

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

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

New York Appellate Court Dismisses Another Construction Site Accident Case

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

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

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

Defective Paint Sprayers Recalled

blog@www.jonathancooperlaw.com (news Author)8518 — Mon, 11 May 2009 08:00:00 EST

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

Chinese-Manufactured Toasters Recalled Due to Safety Hazard

blog@www.jonathancooperlaw.com (news Author)8519 — Mon, 11 May 2009 08:00:00 EST

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

800 Hooded Raincoats Recalled Due to Strangulation Hazard

blog@www.jonathancooperlaw.com (news Author)8501 — Sun, 10 May 2009 08:00:00 EST

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

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)8449 — Wed, 06 May 2009 08:00:00 EST

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

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

Defective Hairdryers Recalled Due to Electrocution Hazard

blog@www.jonathancooperlaw.com (news Author)8450 — Wed, 06 May 2009 08:00:00 EST

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

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

Burberry Recalls Children's Clothing Due To Choking Hazards

blog@www.jonathancooperlaw.com (news Author)8458 — Wed, 06 May 2009 08:00:00 EST

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

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

jmcooper@jmcooperlaw.com (blog Author)11627 — Wed, 06 May 2009 08:00:00 EST

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

Roughly 44,000 Floor Cleaners Recalled Due to Burn Hazard

blog@www.jonathancooperlaw.com (news Author)8442 — Tue, 05 May 2009 08:00:00 EST

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

The 10 Most Deadly Driving Mistakes That People Make

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

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

FDA Recalls Nail Polish Remover That Causes Chemical Burns

blog@www.jonathancooperlaw.com (news Author)8412 — Sun, 03 May 2009 08:00:00 EST

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

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

Bronx Man Dies in Tragic Elevator Accident

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

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

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

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

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

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

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

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

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

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

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

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

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

Food Manufacturer Recalls Meat and Pasta That Was Not Inspected

blog@www.jonathancooperlaw.com (news Author)8327 — Tue, 28 Apr 2009 08:00:00 EST

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

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

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

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

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

Nearly 3 Million Defective Rubber Exercise Balls Recalled

blog@www.jonathancooperlaw.com (news Author)8274 — Thu, 23 Apr 2009 08:00:00 EST

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

Defective Bicycles Recalled By CPSC

blog@www.jonathancooperlaw.com (news Author)8295 — Thu, 23 Apr 2009 08:00:00 EST

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

New Report Finds Government Recalls of Defective Products Ineffective

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)8248 — Tue, 21 Apr 2009 08:00:00 EST

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

Defective Coffeemaker Recalled by CPSC

blog@www.jonathancooperlaw.com (news Author)8182 — Fri, 17 Apr 2009 08:00:00 EST

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

Defective Clothes Irons Recalled by Conair

blog@www.jonathancooperlaw.com (news Author)8060 — Wed, 08 Apr 2009 08:00:00 EST

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

Dangerous Convertible Cribs Recalled by CPSC

blog@www.jonathancooperlaw.com (news Author)8054 — Mon, 06 Apr 2009 08:00:00 EST

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

Industrial Workers' Personal Injury Claims Dismissed

blog@www.jonathancooperlaw.com (news Author)8057 — Mon, 06 Apr 2009 08:00:00 EST

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

Salmonella Contaminated Dry Spices Recalled by FDA

blog@www.jonathancooperlaw.com (news Author)8059 — Mon, 06 Apr 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)7993 — Wed, 01 Apr 2009 08:00:00 EST

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

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

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

blog@www.jonathancooperlaw.com (news Author)8005 — Wed, 01 Apr 2009 08:00:00 EST

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

Defective Chinese-Made Pacifiers Recalled Due to Choking Hazard

blog@www.jonathancooperlaw.com (news Author)7966 — Tue, 31 Mar 2009 08:00:00 EST

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

Salmonella-Tainted Pistachios Recalled By FDA

blog@www.jonathancooperlaw.com (news Author)7967 — Tue, 31 Mar 2009 08:00:00 EST

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

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

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

How Videotapes Can Dramatically Impact Upon Your NY Personal Injury Lawsuit

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

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

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

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

Chemical Manufacturer Recalls Defective Chlorine Dispensers

blog@www.jonathancooperlaw.com (news Author)7916 — Fri, 27 Mar 2009 08:00:00 EST

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

Electrolux Voluntarily Recalls Over 300,000 Defective Vacuum Cleaners

blog@www.jonathancooperlaw.com (news Author)7921 — Fri, 27 Mar 2009 08:00:00 EST

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

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

24,000 Dangerous Children's High Chairs Recalled

blog@www.jonathancooperlaw.com (news Author)7909 — Thu, 26 Mar 2009 08:00:00 EST

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

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

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

blog@www.jonathancooperlaw.com (news Author)7791 — Thu, 19 Mar 2009 08:00:00 EST

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

GM Recalls Over 1.7 Million Defective Vehicles

blog@www.jonathancooperlaw.com (news Author)7789 — Thu, 19 Mar 2009 08:00:00 EST

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

Construction Worker Killed in Tragic Worksite Accident

blog@www.jonathancooperlaw.com (news Author)7790 — Thu, 19 Mar 2009 08:00:00 EST

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

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

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

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

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

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

Chinese Made Holiday Lights Recalled

blog@www.jonathancooperlaw.com (news Author)7732 — Sun, 15 Mar 2009 08:00:00 EST

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

Contaminated Peanut Products Still Causing Food Poisoning

blog@www.jonathancooperlaw.com (news Author)7731 — Sun, 15 Mar 2009 08:00:00 EST

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

Why Defamation Lawsuits Are Often A Waste of Time and Money Under NY Law

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

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

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

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

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

Recalled Peanut Products List Grows To Over 3,000

blog@www.jonathancooperlaw.com (news Author)7705 — Tue, 10 Mar 2009 08:00:00 EST

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

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

blog@www.jonathancooperlaw.com (news Author)7706 — Tue, 10 Mar 2009 08:00:00 EST

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

Food Manufacturer Forced to Close Down by FDA

blog@www.jonathancooperlaw.com (news Author)7673 — Mon, 09 Mar 2009 08:00:00 EST

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

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

Defective Products Case Against Conveyor Manufacturer Dismissed by Jury

blog@www.jonathancooperlaw.com (news Author)7655 — Sun, 08 Mar 2009 08:00:00 EST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

blog@www.jonathancooperlaw.com (news Author)7652 — Sat, 07 Mar 2009 08:00:00 EST

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