New York Noncompete, Trade Secret & School Negligence Blog
This blog by the six-time published author Jonathan Cooper, is intended to educate the general public about issues of interest, particularly innovations and changes in the law, in the areas of non-compete agreements, breach of contract matters, school negligence (and/or negligent supervision), construction accidents, slip and/or trip and fall accidents, auto accidents, and, of course, defective or dangerous products.
For additional information on any of these topics, readers are encouraged to download these FREE e-books:
- To Compete or Not to Compete: The Definitive Insider's Guide to Non-Compete Agreements Under New York Law
- When Schools Fail to Protect Our Kids
- When You Don't Have a Written Agreement
- Why Most Accident Victims Do Not Recover the Full Value of Their Claim
- Why Are There So Few Successful Defective Products Lawsuits?
Foster Parents Cannot Be Sued For Negligent Supervision By Their Kids, NY Court Holds
In a case of first impression that was handed down on February 2, 2010, New York's Appellate Division, Second Department held that foster parents, just like biological parents, cannot be sued by their children on a negligent supervision theory. For additional information on negligent supervision claims, and other legal issues pertaining to child safety, please visit www.JonathanCooperLaw.com, or contact Long Island, New York child accident attorney Jonathan Cooper directly at 516.791.5700.Appeals Court Limits Adverse Impact of Attorney's Admission in Opening Statement
In deciding the defendants' motion to dismiss in a construction site accident case that was handed down on January 19, New York's Appellate Division, Second Department clarified what the effects are of a plaintiff's attorneys admissions that he made during his opening statement to the trial jury. For additional information on this and other topics pertaining to small business litigation, personal injury and defective products under New York law, please visit www.JonathanCooperLaw.com.In NY, Can A Construction Worker Recover For His Injuries Even If The Accident Is Largely His Own Fault ?
In this article, Long Island, New York construction site accident lawyer Jonathan Cooper discusses a recent decision from Kings County (Brooklyn) that addresses the question of whether a construction site worker is precluded from recovering damages under New York's Labor Laws for his injuries if his accident was largely his own fault. For additional FREE information on this topic, and construction site accidents under New York law generally, please visit www.JonathanCooperLaw.com.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.
NY Appeals Court Finds That Roofer Can Recover For Injuries Sustained in Fall From Balcony
In this article, Long Island, NY construction site accident lawyer Jonathan Cooper discusses a decision from an upstate New York appeals court that upheld a worker's personal injury claim arising from a worksite accident that occurred when he fell from a balcony. For additional information on construction site accident cases under New York law, please visit www.JonathanCooperLaw.com.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.
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.
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.
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.
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.
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.
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.