Law Offices of Jonathan M. Cooper Blog

NYC Dept of Ed Bans Teachers From "Friending" Students on Facebook

Thu, 03 May 2012 08:00:00 GMT

I just came across a fascinating article reporting that New York City's Department of Education has published new social media guidelines for its faculty in an effort to retain proper boundaries between professional and social interactions with their students, or as phrased by the DOE,

"In recognition of the public and pervasive nature of social media communications, as well as the fact that in this digital era, the lines between professional and personal endeavors aresometimes blurred, these Guidelines also address recommended practices for use of personal social media by DOE staff."

In essence, while allowing DOE staff to interact with students using professional social media, the interaction on a personal level, e.g., becoming "Facebook friends," is prohibited.

Although the author of the article suggests that teachers fight these guidelines, I must respectfully disagree; I have to commend the DOE for not only doing the responsible thing, but making allowances within their guidelines for using social media on a professional level - which can be monitored by the school, to use these media for useful, educational purposes.

Quite frankly, in light of the numerous stories in the news documenting inappropriate contact between educators and their students, doing anything less might be deemed negligence.

After Teen Son is Expelled for Cheating, Father Sues School

Sun, 29 Apr 2012 08:00:00 GMT

This may be the most absurd lawsuit against a school that I've ever seen.

In a story that was reported on a few hours ago, a father has now sued his teenage son's school for expelling his son from the high school's honor program because his son was caught cheating.

"What did the school do wrong?" you ask.

According to the teen's father, his son was only caught cheating ONCE, and the school apparently has some other written guidelines that suggest its students cannot be punished by expulsion from their honors program until they've been caught cheating TWICE.

Leaving aside the lack of legal merit of this claim (after all, would this policy be deemed a binding contract such that the school could be liable for breach of contract? Not likely.) let's consider the moral component to this argument:

According to this father, the son should be entitled - in other words, as a matter of right - to remain in an honors program because he was only caught cheating one time.

Here's another thing to consider: what message is this father trying to impart to his son? (And how does this father define the term "honor" to his children?)

Why Where You Decide to Bring Your School Negligence Case Matters

Sun, 22 Apr 2012 08:00:00 GMT

This past Friday, Virginia's State Supreme Court ordered a new trial in a school negligence case where school officials had been warned about an imminent fight, yet failed to take any remedial measures to prevent it. Following trial, the jury awarded the plaintiff-student, who sustained terrible personal injuries, $5 million in damages, with the school being responsible for $1.25 million of that sum.

In reviewing the case, however, the appellate court held that a new trial was warranted because the school's liability (or lack thereof) should be assessed based upon whether they were guilty of gross negligence - not merely standard negligence.

Obviously, this standard is different than the prevailing one in New York, which holds its schools to a regular negligence standard (which means that in this case, the jury's verdict would not have been disturbed - at least with respect to the jury's finding that the school was liable). For additional information on this topic, please see "How to Prove Your School Negligence Case Under New York Law."

Why Some NY Slip and Fall Cases Are Very Difficult to Win

Thu, 19 Apr 2012 08:00:00 GMT

The defense verdict that was recently handed down in the Suffolk County case of Velez v. Hartnett and Kelly Irish Bars Inc. is not terribly surprising - after all, since the plaintiff's own hospital records indicated that she tripped over a bar stool (and not an improperly mopped floor, as claimed by plaintiff). On the other hand, the defense verdict, dismissing the plaintiff's slip and fall claim serves as a powerful reminder to attorneys and claimants about how cases are analyzed by New York juries.

In this case, the jury apparently believed that the plaintiff was intoxicated at the time of her accident, and therefore, the defendant wasn't responsible for her accident. Granted, this accident took place in a bar, and the bar should have to be vigilant in assuring that its premises were safe for people who became inebriated. But as a practical matter, it is hard to imagine a jury will not hold a plaintiff under these circumstances resposible for her own trip and fall, and if not entirely at fault, at least mostly at fault for it.

And that is precisely what happened in this case.

Safety 1st Recalls Over 900,000 Defective Child Safety Locks

Tue, 27 Mar 2012 08:00:00 GMT

After receiving over 200 reports that their child safety locks failed - miserably - in fulfilling their essential purpose (one important way that you can prove a defective products lawsuit under New York law) - to keep small children from getting into cabinets with hazardous household products, such as oven cleaner, dishwasher detergent and other household cleaning products (including some children who swallowed these products), Dorel Juvenile Group has voluntarily recalled roughly 900,000 of its Safety 1st Push ‘N Snap cabinet locks.

Here's an interesting question: Why did it take over 200 complaints before these products were recalled?
Given the cost of this item - which ranges from $2 to $4, it should come as no surprise where this item was manufactured: That's right - overseas in China.
In any event, here's a picture of the packaging for these products:

Truck Driver's Labor Law Injury Claims Reinstated by NY Appeals Court

Fri, 02 Mar 2012 08:00:00 GMT

Noting a discrepancy between some of New York's appellate courts, in Naughton v. City of New York, the Appellate Division, First Department (which covers appeals from the trial courts in New York and Bronx Counties) recently modified a New York County trial court's order that had dismissed a truck driver's claim that he was hurt after falling 15 feet to the ground from the top of a 10-foot load of wall panels that were on the back of his flatbed truck.

Apparently, the driver was injured when one of the loads of panels that had been secured by one of his co-workers rammed into him, knocking him to the ground. Plaintiff claimed that he was entitled to summary judgment on his Labor Law §241(6) claim because the defendants had violated the Industrial Codes pertaining to material hoisting and tag lines, 12 NYCRR 23-6.1(h).

Interestingly, although the Second and Third Departments do not apply 12 NYCRR 23-6.1(h) as a predicate for §241(6) liability, the First Department in this case took the opportunity to reiterate that it does. Therefore, the appellate court found in favor of the truck driver on the issue of liability.

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

Sun, 05 Feb 2012 08:00:00 GMT

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

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

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

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

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

Wed, 01 Feb 2012 08:00:00 GMT

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

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

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

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

Sun, 01 Jan 2012 08:00:00 GMT

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

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

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

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

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

Mon, 19 Dec 2011 08:00:00 GMT

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

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

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

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

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

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

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

Ignoring Order, NY Company Sold Mattresses Violating Flammability Laws

Wed, 14 Dec 2011 08:00:00 GMT

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

Well, you don't need to wonder anymore.

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

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

Here's the real kicker:

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

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

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

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

Sun, 11 Dec 2011 08:00:00 GMT

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

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

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

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

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

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

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

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

Thu, 08 Dec 2011 08:00:00 GMT

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

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

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

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

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

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

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

Sun, 27 Nov 2011 08:00:00 GMT

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

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

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

That is scary indeed.

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

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

Suffolk County Jury Denies Teen Injured in School Lacrosse Game

Mon, 14 Nov 2011 08:00:00 GMT

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

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

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

So, why is this case noteworthy?

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

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

Sun, 30 Oct 2011 08:00:00 GMT

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

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

Let me explain.

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

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

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

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

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

Mon, 24 Oct 2011 08:00:00 GMT

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

And that rule makes sense.

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

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

In denying their motions, the judge stated as follows:

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

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

Mon, 10 Oct 2011 08:00:00 GMT

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

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

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

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

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

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

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

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

One Reason That Manufacturers Will Promptly Recall a Defective Product

Mon, 10 Oct 2011 08:00:00 GMT

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

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

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

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

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

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

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

Sun, 09 Oct 2011 08:00:00 GMT

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

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

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

Not so fast.

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