New York Noncompete, Trade Secret & School Negligence Blog

You Can't Have a Viable School Liability Case Without This

In the vast majority of situations where schools have been negligent, that does not translate into being a viable lawsuit against the school.

Lie to Me

For years now, some unethical lawyers have preyed on people who've been seriously injured in an accident and don't know what to do, just to make a buck

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

Long Island & Queens, NY car accident & personal injury attorney Jonathan Cooper on why jury verdict reports from a NY car accident case may be misleading.

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

Author of the New York Accident Guide, "Why Most Accident Victims Do Not Recover the Full Value of Their Claim" (www.TheNewYorkAccidentBook.com), Long Island & Queens, New York car accident and personal injury lawyer Jonathan Cooper discusses one of the biggest dangers of going to trial in a New York auto accident lawsuit. For additional information on this topic, please contact Jonathan Cooper directly at his Nassau County office at 516-791-5700.

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

In this article, Long Island, New York trip and fall lawyer Jonathan Cooper discusses who is legally responsible for a defective curb under New York law. For additional information on this topic, and how accident cases are evaluated and handled under New York law, please order a copy of Jonathan Cooper's Guide to New York accident cases, Why Most Accident Victims Do Not Recover the Full Value of Their Claim from www.TheNewYorkAccidentBook.com.

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

In this article, Long Island, NY auto accident lawyer Jonathan Cooper lays out 4 important steps you should take in the aftermath of a hit and run accident to assure that your claim is protected. For additional FREE information on the 10 mistakes that are guaranteed to reduce the value of your accident claim under New York law, please get a copy of Jonathan Cooper's Why Most Accident Victims Do Not Recover the Full Value of Their Claim from www.TheNewYorkAccidentBook.com.

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

In this blog article, published author of Why There Are So Few Successful Defective Products Lawsuits, and Long Island, New York products liability lawyer Jonathan Cooper explains the 5 essential causes of action, or claims, that are typically brought in lawsuits involving a dangerous product that caused personal injuries. For additional information, please visit www.JonathanCooperLaw.com

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

Long Island, New York product safety recall and defective fan attorney Jonathan Cooper discusses how a government recall of a product can be helpful and effective in proving a product liability case under New York law. For additional information on this topic, as well as products liability cases in general, please order a copy of Jonathan Cooper's FREE guide to defective products cases, Why There Are So Few Successful Defective Products Lawsuits, by going to www.ProductsLiabilityBook.com.

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

In this article, Long Island, New York product liability lawyer Jonathan Cooper discusses why many, if not most, cases involving personal injuries that arise from the use of a household or commercial product are not viable product liability cases under New York law. For additional information on this topic, please download or order a FREE copy of Jonathan Cooper's book, Why There Are So Few Successful Defective Products Lawsuits from www.ProductsLiabilityBook.com.

NY Appeals Court Whittles Down Claims in Construction Site Accident Lawsuit

In this article, Long Island, NY construction site accident attorney Jonathan Cooper discusses how a New York appeals court dismissed most, but not all, of a worker's personal injury claims because the plaintiff did not prove sufficiently that the defendants had violated specific safety statutes. For additional information on what a plaintiff must prove to win his construction site accident lawsuit under New York law, please visit www.JonathanCooperLaw.com.

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."

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

In this article, New York consumer product recall and defective product lawyer Jonathan Cooper discusses why the mere fact that a product was recalled does NOT mean that the company issuing the recall concedes that the product was, or is, defective, or that their product was responsible for causing damage or harm to any particular consumer. For additional information on this important topic, and how it may affect your potential products liability case under New York law, please order or download a copy of Jonathan Cooper's FREE guide to New York products liability claims at www.ProductsLiabilityBook.com.

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.

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

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

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

 

Building A Winning Case

Lawyer Jonathan Cooper talks about his favorite blog and a recent post

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.

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:

1. 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.
2. 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.
   
3. 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.

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).

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.

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.

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.

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.

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

Lawyer Jonathan Cooper talks about practice areas

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

 

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

 

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

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

New York Lawyer Jonathan Cooper looks at sports and drugs