Getting a Recovery for Elevator Accidents

Yesterday, in a very sad news story, a woman was killed in an unusual elevator accident.  See story here.

The woman was coming to work at her office on Madison Avenue.  She was in the lobby and was entering an elevator.  She was halfway in the elevator cab, with one foot still in the lobby, when suddenly the elevator quickly ascended with its doors open.  This lady was crushed between the elevator and the shaft wall.

There is no question that the elevator grossly malfunctioned.  It appears that the interlock device did not work.  An interlock would have prevented the elevator from going up or down while its doors are open.  

Generally, a personal injury lawsuit will be against both

1. the building owner; and
2. the elevator maintenance company.

The building owner has a non-delegable duty for the maintenance and operation of the elevators.  Generally, building owners hire elevator companies on yearly contracts to maintain and repair the elevators.  Building owners do not have the technical expertise, and it is uneconomical to keep an elevator mechanic on payroll.  Therefore, owners routinely hire elevator companies to perform regular maintenance and repairs.  

In addition to a lawsuit, an injured person may have rights under workers’ compensation if he were injured in the course of his employment.  Entering and leaving the workplace, i.e., the office building, would be covered as a workplace injury.

If you have been injured in an elevator accident, please feel free to contact me for a free consultation at either 800-581-1434.

Mark E. Seitelman, 12/15/11, www.seitelman.com.

Getting a Recovery for Your Auto Accident Injuries; Court Decision Places One Less Hurdle for the Injured Client

New York’s high court just removed one hurdle from recovery for people injured in automobile accidents.  See Perl v. Meher, Nos. 206-208, Nov. 22, 2011. 

The Court of Appeals held that the treating doctor need not quantify the injured client’s range of motion at the initial examination.  Lower courts previously ruled that the doctor’s failure to note and quantify the numbers would defeat a client’s recovery when the entire medical record is reviewed on a defense motion for summary judgment.

Mr. Perl’s physician testified that taking loss of range of motion readings at the initial examination would be useless because the injury is too fresh and acute.  He stated that it does not present “correct numbers.”  Plaintiff’s doctor relied on his own visual estimates of loss of range of motion.  The defense physician agreed with this approach.

Although the treating doctor is not required to take the measurements at the initial examination, he must do so later in the treatment in order to prove a “serious injury.” 

This case marks a victory for injured clients.  Generally, the courts have been on a steady march of defeating clients’ cases in defense motions for summary judgment.  Defendants have been able to get cases dismissed on papers without a trial.  Perl marks a retreat.  It is noteworthy that the decision was unanimous and was written by Judge Robert Smith, one of the court’s more conservative judges

Jubilation should be reserved because injured clients still have an uphill battle..  The courts have created a body of law and “a culture” hostile to the so-called soft tissue auto case.  Perl removes only one hurdle.  However, the Perl case is one small step in the right direction.

We salute a friend and colleague, appellate attorney Annette G. Hasapidis who handled the case in the Court of Appeals.

If you have been injured in an automobile accident, please feel free to contact me at 800-581-1434 or write to letters@seitelman.com.  The consultation is free.

Mark E. Seitelman, 11/25/11, www.seitelman.com.

Getting a Recovery for Golf Accidents

New York’s highest court has ruled that a golfer need not yell “fore” before hitting the ball.  See Anand v. Kapoor.

The Court of Appeals ruled that the injured golfer had no case in that he assumed the risks of the game.

        

Dr. Anand was playing with fellow doctors at a Long Island golf course.  While playing his ball from the rough on the first hole, Dr. Kapoor shanked a shot that hit Dr. Anand in the right eye.  A shank is a shot that flies off the club almost perpendicularly to the traget, i.e., straight to the right for a right-handed player such as Dr. Kapoor. 

Dr. Anand was 15-20 feet away.  Dr. Anand yelled a warning after  making the shot.  The shot detached Dr. Anand’s retina and resulted in total blindness in that eye.  Dr. Kapoor did not give a warning shout of “fore” before hitting the ball.

The Court of Appeals dismissed the case.  It ruled that Dr. Anand assumed the risks of the game, i.e., getting hit by a errant ball.  There was no proof that there was either reckless or intentional conduct by the golfer which would create liability.

This decision conforms with other court decisions involving injuries during sports.  Generally, the courts view sports injuries as a known and assumed risk.  An injured player would not have a case unless there was either gross negligence or intentional conduct. 

However, where the participant is injured from a defective playing field or malfunctioning equipment, there may be a case.  We have obtained recoveries for injuries due to a negligently maintained indoor hockey field and a poorly maintained New York City football field.  There may be a recovery in those cases.

If you have been injured in a sports accident, please feel free to call us at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 12/24/10, www.seitelman.com.

Bed Bugs Do Not Equal Lawsuits

Bed bugs are big news.  

The good news is that bed bugs are benign although very unwanted pesky pests.  Bed bugs do not carry disease, and they do not present  the same public health threat as an unknown flu virus.   However, the bad news is that there is little that can be done in recovering damages for bed bug bites.

Generally, a landlord will not be responsible unless it can be shown that the landlord knew of a bed bug problem and failed to take reasonable steps to stop it.  Either constructive or actual notice must be shown. 

For example:

Linda Jones discovers to her horror that she has bed bugs.  She seeks damages against the landlord of her apartment for her medical treatment and the costs of the extermination  and cleaning her furniture and clothing.  Ms. Jones is the only tenant to get bed bugs in her building.

The landlord would have no liability unless it can be shown that the landlord knew of a bed bug problem in the building and failed to take corrective steps.

However, consider this example:

Bertram Parks finds bed bugs in his apartment.  He learns that over the course of the last six months people in his line of apartments, the “A” line, have had bed bugs.  The landlord was told of their problem, and he did nothing.  The landlord’s position was that problem was unique to each tenant and that the landlord would not shoulder the remediation costs.  Each tenant undertook his own extermination efforts.

In this case, Parks may have a viable claim against the landlord for his injuries and clean-up costs.

One problem with bed bugs is proving how they came-in.  Another problem is that bed bugs are not caused by unsanitary conditions.  They can appear at the cleanest and best addresses in the city. 

It can be difficult, although not impossible, to prove a case against a landlord of either an apartment house or office building.

Future articles will discuss other type of bed bug cases.

Mark E. Seitelman, 9/3/10, www.seitelman.com.

Getting a Recovery for Injuries or Death from Drowning; A Follow-Up to the Sad Case of Nicole Suriel

On June 23rd 12  year old Nicole Suriel drowned while on a school trip at Long Beach, New York.  She and her classmates were allowed to enter the ocean without a lifeguard present.  See our prior story here.

According to the just released findings of the Special Commissioner of Investigations, Nicole’s death was a clear result of negligent supervision.  See New York Daily News story.

There appear to have been 4 acts of negligence:

1. The teacher exercised poor judgment by allowing her children to swim in the churning ocean without a lifeguard;  the teacher was unaware of signs posted at the beach entrance that there were no lifeguards;
2. There were no specific permission slips for the trip;  there were merely blank permission slips signed by the parents;  Nicole’s father said that if he had known that the school trip was to the beach he would have never had agreed to the trip;
3. The assistant principal decided at the last moment not to go and instead decided to stay at the school to do paperwork;  pursuant to school rules, this trip may have required the presence of an assistant principal or someone of higher rank than the teacher;
4. The teacher’s boyfriend, an ex-teacher, who went in the assistant principal’s place, could not swim.

It is clear that the school and the teacher were negligent.  The school is deemed to stand in the shoes of the parent and is obligated to take all reasonable steps that the parent would have exercised over the child. 

This evidence obtained by the Special Commissioner could be used in a wrongful death suit by the girl’s parents.  In death cases and cases of notoriety, there will be an investigation by either an outside agency or within the Department of Education or both.  Such evidence can be used in the family’s civil suit for damages.

If you or a family member has been injured due to drowning, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 7/15/10, www.seitelman.com.

Getting a Recovery for Injuries from a Fallen Tree Branch

This last weekend a 6 month old baby was killed when a tree branch hit both baby and mother.  The baby’s father was snapping their picture at the Central Park Zoo when the tree branch broke.  The mother was also injured.  See story here.

If you have been injured due to a falling tree branch or other incident in a City park, please call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Earlier this year we wrote about a fatal accident in Central Park where a pedestrian was hit by a snow laden tree branch.  See our prior post here which discusses the proof needed to recover against the City.

As a general rule the owner of the tree will only be liable for injuries caused by a falling branch if the owner had notice of the condition.  For example, if the owner was told of the dangerous condition, such as a broken tree limb likely to fall, then such would satisfy the notice requirement.  The other way of proving notice is that the condition existed so long that the owner should have known of the danger if he had made reasonable inspections regularly.  This form of notice, “constructive notice”, can be difficult to prove.

A further glitch exists in this particular case in that there is an issue as to which entity owns and maintains the tree.  Is it New York City?  Or the Wildlife Conservation Society which operates the Central Park Zoo?  Or is it the Central Park Conservancy which has undertaken many of the responsibilities of Central Park’s maintainance?

If you have been injured due to negligence in a City park or zoo, please call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 6/28/10, www.seitelman.com.

Getting a Recovery for a Sidewalk Accident; Navigating the Crazy Quilt of New York City Law

Do you think that walking the broken and uneven sidewalks of New York is an obstacle course worthy of an Olympics competition?  A worse obstacle course awaits the injured person in seeking a recovery in a lawsuit.

If you have been injured due to a fall on a sidewalk, please feel free to call me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

As we stated in a prior post, your recovery depends upon where you fall.

Consider the following:

Case 1:  You fall on a broken sidewalk in front of a single family home in Staten Island,  New York.

     

 The City is responsible for the sidewalk’s condition.  The adjoining property owner is not liable unless he had a special use (e.g., a driveway) or had made a faulty repair.  See our prior post.  If the City has no prior notice of the defect on a map, there is no recovery.

Case 2:  You fall in front of an apartment house at 710 Eastern Parkway, Brooklyn, New York.  You fall due to an uneven block of cement which rises 2 inches higher than the next block.  

   

In this case the adjoining property owner is responsible.     See our prior post.

Case 3:  You fall due to a broken curb in front of an apartment house on Queens Boulevard in Forest Hills, New York.

     The City is responsible for the curb.  This is so for all curbs in New York even though the adjoining property owner must install and maintain the curb.  Again, prior notice must be proven against New York, such as the Big Apple Map.  If there is no proof of prior written, there is no case.

Case 4:  You fall due to a broken sidewalk at the corner of East 79th Street and Park Avenue, New York City.  You fall on the ramped part of the sidewalk at the corner which allows easy access for wheelchairs, baby carriages, etc.  The adjoining property owner is an apartment house.

   In this case your case would be against the City even though the apartment house owner not only installed the ramp as part of the sidewalk, but also maintains it.  See our prior post.  In this instance there will only be a case against the City if a defect can be shown on the Big Apple Map.

 As you can see, there is little logic in the law governing the public sidewalks.  It all depends upon where you fall.

If you have been injured due to a fall on a sidewalk, please feel free to contact me at 800-581-1434 for a free consultation or write to letters@seitelman.com. 

Mark E. Seitelman, 6/4/10, www.seitelman.com.

Getting a Recovery for Your Injuries in a Mediation; We Settled an Automoible Accident Case for $227,000 at Mediation

We recently settled a Bronx automobile injury in a  3 hour mediation before a private mediator. 

Mediation is an effective method of settling cases.   We have been using it for years.  See our prior post on mediation here.

Mediation is a settlement negotiation session.  Although it can be done by a judge in court, generally, mediation is done by a  private mediator hired by the parties.  In California it is popularly known as “rent a judge.”

For over a decade, private mediation has grown because  judges lack the time to settle a case at its early stages.  In our experience, most judges will spend the time  only after a jury is selected.  In a mediation, the mediator will spend whatever time is necessary.  

For example,

• In one of our larger cases the mediation lasted from 10 am to 5:30 pm.  This was an accident case arising out of a Brooklyn construction accident. 
• In another mediation, there were two sessions.  At the first meeting, lasting 2 hours, the issues were reviewed and discussed.  The mediator made a settlement recommendation to defendants.  Defense counsel had to review the case further with their insurance carriers in order to get more money.  We scheduled a second session, about 1 month later, when defense counsel obtained more settlement authority.  At the second session the case was settled.  This case involved a slip and fall at Fordham University in Bronx, New York.

If a case does not settle at the mediation, neither side is penalized.  Generally, both sides are in a “settlement mode” when agreeing to mediation. 

The parties must agree to a mediator.  Generally, mediators are retired judges.  However, some mediators are distinguished lawyers who have had track records as mediators.   In all of the above examples we  used lawyer-mediators.  Mediators are hired through various private services, such as JAMS and National Arbitration and Mediation.  Often, the service will also provide a meeting rooms or a suite of rooms at its offices.  For example, in a mediation at JAMS, the service provided a conference room and a separate, private room for plaintiff and his attorneys.

If you have been involved in an accident involving serious injuries, please feel free to call us for a free consultation at 800-581-1434 or write to us at letters@seitelman.com.

Prior case results do not guarantee a similar outcome.

Mark E. Seitelman, 3/25/10,  www.seitelman.com.

Getting a Recovery for the Spouse or Partner of an Injured Person (Part II)–What is a Spouse?

In Part I we discussed the nature of the loss of services claim of the non-injured spouse.

We now turn to the issue of who is entitled to recovery?  In this age of “significant others”, “life partners”, “civil unions”,  and “same sex marriages” there has been a bit of a blurring of what is a spouse.

New York law is clear that the person claiming a loss of services claim must be a spouse who has legally married the injured person.

Therefore, the following relationships are not recognized:

• Civil Unions.  New York has recognized “civil unions” between same sex couples for certain legal rights, such as health insurance and right to occupy rent regulated property.  However, civil union is not the same as marriage.  The non-injured partner cannot sue for loss of services.
• Common Law Marriages.  New York does not recognize common law marriage.  In other words, a man and woman living together and holding themselves out as married will not be deemed married under the common law.  However, New York will recognize a common law marriage if it were legally entered outside of New York in a state which recognizes common law marriage.  E.g., assume John and Joan lived as husband and wife but did not go through a ritual marriage in a state which recognizes common law marriage.  Further assume that John and Joan are deemed legally married in that state under its common law marriage laws.  If John and Joan were to move to New York, then New York will recognize the couple as legally married.
• People Living Together.  In New York people living together have no legal status as a “couple” or “spouses” even where they have children together. 

New York will recognize a same sex couple as legally married if that couple were legally married in another state which has legal same sex marriage.  E.g., if the couple were married in Connecticut, then New York would recognized the couple as married.  In this instance, the non-injured spouse would have a right recover for loss of services in New York.

If New York legalizes same sex marriages, then same sex couples married in New York will have the same rights as married, heterosexual couple now have.  That includes the right of the non-injured spouse to recover for loss of services.

If you have been injured in an accident, please call me at 800-581-1434 for a free consultation, or write to letters@seitelman.com.

Mark E. Seitelman, 5/29/09, www.seitelman.com.

Getting a Recovery from an Animal Attack–Further Thoughts on the Savage Chimpanzee Attack and Attacks by Wild Animals

The recent, savage attack by “Travis”, the chimp, has drawn the attention of the national press.  See our prior post on this animal attack here.

Travis horribly mauled and multilated a neighbor and friend of this owner.  On the 911 tapes the owner was cowering in fear for her life, and she thought that her pet killed her friend.  She pleaded with the police to come and shoot the animal.

At first it seemed that Travis had no prior history of violence, but today’s  New York Post reports that a town resident was bitten by the chimp.  She complained to the police, and the police did nothing.  

I believe that in view of this horrible incident police will crack-down on exotic pet and wild animal ownership.  I also believe that municipal governments will seek orders to remove wild animals from their owners in the event of a attack no matter how minor.

There was also some indication in the Post article that the owner treated the ape as both a son and husband in sharing living arrangements, meals, baths, glasses of wine, etc.  It seems that if abnormal conduct is reported to the police in the future, the police will take steps to remove the dangerous animal on the ground that the owner does not have the mental capacity to manage the animal.  Apparently, the owner did not take adequate precautions, and it is likely that the chimpanzee acted-up on prior occasions, but the owner either covered-up or accepted it. 

In the event that the municipality fails to act on either a complaint of violence or a complaint of abnormal behavior by the owner, the municipal government may be liable for damages.  In a case such as this one, where the victim was horribly and permanently disfigured and dismembered, the animal owner’s insurance may not be enough to cover the damages, and the victim will look to a deeper pocket, i.e., the municipality which failed to remove the wild beast.

Incidentally, it is well known that chimpanzees can be very savage and violent.  In 2005 a Californian man was savagely attacked by chimps when he visited his chimpanzee in a primate sanctuary.  The victim had been ordered to give-up his chimp to the shelter after his chimp bit-off part of a woman’s finger; the chimp had bitten other people including a policeman.  When the man and his wife visited the chimp at the sanctuary, two other chimps escaped and brutally disfigured, dismembered, and multilated the man in the same manner as the Connecticut woman a few days ago.  See excellent Esquire story here.

If you have been injured by a wild animal attack, please call me for a free consultation at 800-581-1543.

Mark E. Seitelman, 2/19/09, www.seitelman.com.