Litigants, including injury victims, are not simply affected by the judges and juries who hear their individual cases. They are not just affected by the laws of the state in which they live. Litigants are affected by the interpretations and rulings of law made by the United States Supreme Court.
For example, I would cite the Supreme Court's recent decision in Wyeth v. Levine. The Supreme Court ruled that people injured by drugs may file lawsuits against the drugs' manufacturers in state courts, even if the drugs in question had been approved by the Food and Drug Administration. This decision protects and perhaps even expands the rights of injury victims.
On the other side of the coin, the Supreme Court has also recently ruled against the interest of injury victims. In CSX Transportation, Inc. v Thurston Hensley, a railroad worker who's exposure to asbestos has caused him to develop asbestoses, was denied a cause of action for mental anguish.
What's my point? As you probably know, the U.S. Senate is holding the confirmation hearings for Judge Sonia Sotomayor. We at Tolmage Peskin are advocates for our clients. In that, we take no Democratic or Republican positions. As such, we take no formal position for or against Judge Sotomayor for Supreme Court justice. However, we do recognize that a new justice, with different views and interpretations of the Constitution will affect injury victims and their pursuit of compensation. That is why why are following the hearings closely.
We believe that an informed and capable public is as important informed and educated attorneys. For your convenience, click for transcripts of day 1 and day 2. of the hearings. Check back for transcripts of the rest of the hearing as it goes forward.
-Matthew Lomabrdi, Assocaite Attorney
Wednesday, July 15, 2009
Thursday, July 9, 2009
Dog Bites Man
There are a lot of dogs in the New York City area; thousands, actually. Most encounters with the City's dogs are friendly and fun. Sometimes, unfortunately, they do not end up as one intended. If a dog attacks and injures you, can you hold the owner liable? The short answer is, maybe. An owner is strictly liable for a dog bite if the injured person can show that the owner knew or should have known of the dog's vicious propensity.
Of course, that means that injured person must show that the dog does in fact have a vicious propensity. Technically, factors such as the dog being “known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained” can be considered to determine if the dog has a vicious propensity. But in practice, the old cliché, “every dog gets one bite” holds sway. In other words, if you can't show that the dog bit someone else, you'll probably lose your law suit.
New York's dog bite law is not based on common law negligence. There is no analysis of what the owner did or should have done vis-a-vis minding and controlling his or her dog. There is only an analysis of the dog's history. Let me give you an example. Let us assume that a person brings a dog into a hospital nursery and leaves it there. If the dog hurts a baby, the owner is not liable unless it can be shown that the dog had vicious propensity. There's no argument that a reasonable person would not leave a dog unattended in a nursery. Its all about the dog's prior behavior. (There would most likely be a viable claim against the hospital for allowing the dog into such a sensitive place).
The problems with the dog bite law now becomes apparent. How do you prove that this dog had a vicious propensity? Unless a prior bite victim had the expertise to lodge a complaint with the NYC Department of Health and Mental Hygiene, there would be no record of a prior bite. How does one know that a dog would regularly snap, growl or bare its teeth, if the first time you saw the dog was when it bit you? Would the dog owner's neighbor take your side and rat on the dog, if asked? New York law makes it quite difficult to win a dog bite case
Please do not mistake me for someone who dislikes dogs. I love them; there are two in my family. And that is why the law in New York should be changed. The law should not focus so much on the past conduct of the dog. Instead the law should focus on the owner, on the human. After all, a person can control and explain their conduct much more than an animal can. Focusing on the lapse of judgment, or negligence, of a human can ensure that a person injured by a dog gets his day in court without having to paint a dog a viscous beast.
Matthew Lombardi, Associate Attorney
Of course, that means that injured person must show that the dog does in fact have a vicious propensity. Technically, factors such as the dog being “known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained” can be considered to determine if the dog has a vicious propensity. But in practice, the old cliché, “every dog gets one bite” holds sway. In other words, if you can't show that the dog bit someone else, you'll probably lose your law suit.
New York's dog bite law is not based on common law negligence. There is no analysis of what the owner did or should have done vis-a-vis minding and controlling his or her dog. There is only an analysis of the dog's history. Let me give you an example. Let us assume that a person brings a dog into a hospital nursery and leaves it there. If the dog hurts a baby, the owner is not liable unless it can be shown that the dog had vicious propensity. There's no argument that a reasonable person would not leave a dog unattended in a nursery. Its all about the dog's prior behavior. (There would most likely be a viable claim against the hospital for allowing the dog into such a sensitive place).
The problems with the dog bite law now becomes apparent. How do you prove that this dog had a vicious propensity? Unless a prior bite victim had the expertise to lodge a complaint with the NYC Department of Health and Mental Hygiene, there would be no record of a prior bite. How does one know that a dog would regularly snap, growl or bare its teeth, if the first time you saw the dog was when it bit you? Would the dog owner's neighbor take your side and rat on the dog, if asked? New York law makes it quite difficult to win a dog bite case
Please do not mistake me for someone who dislikes dogs. I love them; there are two in my family. And that is why the law in New York should be changed. The law should not focus so much on the past conduct of the dog. Instead the law should focus on the owner, on the human. After all, a person can control and explain their conduct much more than an animal can. Focusing on the lapse of judgment, or negligence, of a human can ensure that a person injured by a dog gets his day in court without having to paint a dog a viscous beast.
Matthew Lombardi, Associate Attorney
Tuesday, July 7, 2009
Thursday, July 2, 2009
Lead Poisoning
Living in New York City, with its many older building, lead poisoning in children takes on a special concern. In 2008, there were almost 2,000 reported cases of lead poisoning im kids. We here at Tolmage Peskin have done many many lead cases. Let's go through one:
A child lead exposure case includes several elements that must be addressed
1) Show lead poisoning
2) Show the poisoning damaged your child
3) Establish that the lead came from a specific source, usually your home
A general case can illustrate these principles. The client, we’ll call him “John,” lived with his parents in a NYC apartment. When John was one year old, he was diagnosed as having a blood lead level of 15 mcg/dL (micrograms per decaliter). According to the Centers for Disease Control and Prevention (CDC), a blood lead level of over 10 mcg/dL is considered lead poisoning. John’s lead level, despite treatment rose to 61mcg/dL. This is dangerously high. Lead poisoning can cause learning disabilities and impairments, slowed growth, nervous system problems, seizures and death. The New York City Department of Health was notified and they performed a lead test of the apartment. The testing found that the apartment contained multiple lead hazards and violations.
Lets plug this into the elements: 1)Lead poisoning was medically shown. 2) The high lead levels resulted in serious harm for John. He suffered from growth problems, major learning disabilities requiring placement in special education and behavioral problems. 3) The lead was traced to a specific source, the apartment. The testing of the home was contemporaneous with the finding of lead poisoning, establishing a firm link to John’s poisoning.
Despite obtaining compensation for John, the case wasnt really done. Like with many victims of lead poisoning, John's injuries left him in need of special services such as special education, specialized private tutoring, an attendant, and frequent medical treatments. As a lead poisoning victim's parent, you should be aware that a special needs trust can be set up to provide the funds needed for this type of after accident care. Such treatments, coupled with a good lawyer, can ensure a lead poinsoing victim can grow up to lead a successful life.
A child lead exposure case includes several elements that must be addressed
1) Show lead poisoning
2) Show the poisoning damaged your child
3) Establish that the lead came from a specific source, usually your home
A general case can illustrate these principles. The client, we’ll call him “John,” lived with his parents in a NYC apartment. When John was one year old, he was diagnosed as having a blood lead level of 15 mcg/dL (micrograms per decaliter). According to the Centers for Disease Control and Prevention (CDC), a blood lead level of over 10 mcg/dL is considered lead poisoning. John’s lead level, despite treatment rose to 61mcg/dL. This is dangerously high. Lead poisoning can cause learning disabilities and impairments, slowed growth, nervous system problems, seizures and death. The New York City Department of Health was notified and they performed a lead test of the apartment. The testing found that the apartment contained multiple lead hazards and violations.
Lets plug this into the elements: 1)Lead poisoning was medically shown. 2) The high lead levels resulted in serious harm for John. He suffered from growth problems, major learning disabilities requiring placement in special education and behavioral problems. 3) The lead was traced to a specific source, the apartment. The testing of the home was contemporaneous with the finding of lead poisoning, establishing a firm link to John’s poisoning.
Despite obtaining compensation for John, the case wasnt really done. Like with many victims of lead poisoning, John's injuries left him in need of special services such as special education, specialized private tutoring, an attendant, and frequent medical treatments. As a lead poisoning victim's parent, you should be aware that a special needs trust can be set up to provide the funds needed for this type of after accident care. Such treatments, coupled with a good lawyer, can ensure a lead poinsoing victim can grow up to lead a successful life.
Wednesday, June 17, 2009
Assumption of the Risk
Assumption of the risk ("AOR") is one of the classic defense arguments made against an injured person. It goes something like this: "I, the defendant, am not responsible for your injury because you engaged in an activity you knew could be dangerous." In other words, the injured party assumed the risk of injury. As trial attorneys we at Tolmage Peskin come across this defense frequently.
The AOR defense has its limits. Justice Schneier gave a good summary of those limits in the case of Fourtounis v. MJB Service Station Inc. Justice Schneier first reminds us that AORis not necessarily an absolute bar to recovery. AOR is a measure of defendant's duty of care. In other words, if there's a situation where the plaintiff has assumed the risk, the defendant has to do less, if anything at all, to insure plaintiff's safety.
This of course, leads to the conclusion that a defendant isn't totally off the hook. Take Fourtounis as the example. In this case, the plaintiff got up on a repair shop's lift with his car while the lift was on the ground,assisting in the car's cleaning. An employee not realizing plaintiff was on the lift, raised it. Plaintiff didn't realize he was in the air, stepped back, and fell.
The Court here found that plaintiff voluntarily placed himself in a hazardous situation by being on the lift. This should invoke AOR. However, because AOR is not an absolute defense, the shop still had a duty of care. The shop's duty was to make sure no one was on the lift before it was raised. It knew that plaintiff was assisting with the cleanup of the car. It knew that he was around the lift. The shop's failed to make sure all was clear before raising the lift.
Now let's make one thing clear. AOR also applies to damages. It will be argued by the defendant's that plaintiff should be awarded less for his injuries because he voluntarily placed himself upon the lift. This argument is a winner. But once the conversation is about how much money an injured person is awarded as opposed to if a injured person is going to be awarded money, the injured person is in a good position.
The AOR defense has its limits. Justice Schneier gave a good summary of those limits in the case of Fourtounis v. MJB Service Station Inc. Justice Schneier first reminds us that AORis not necessarily an absolute bar to recovery. AOR is a measure of defendant's duty of care. In other words, if there's a situation where the plaintiff has assumed the risk, the defendant has to do less, if anything at all, to insure plaintiff's safety.
This of course, leads to the conclusion that a defendant isn't totally off the hook. Take Fourtounis as the example. In this case, the plaintiff got up on a repair shop's lift with his car while the lift was on the ground,assisting in the car's cleaning. An employee not realizing plaintiff was on the lift, raised it. Plaintiff didn't realize he was in the air, stepped back, and fell.
The Court here found that plaintiff voluntarily placed himself in a hazardous situation by being on the lift. This should invoke AOR. However, because AOR is not an absolute defense, the shop still had a duty of care. The shop's duty was to make sure no one was on the lift before it was raised. It knew that plaintiff was assisting with the cleanup of the car. It knew that he was around the lift. The shop's failed to make sure all was clear before raising the lift.
Now let's make one thing clear. AOR also applies to damages. It will be argued by the defendant's that plaintiff should be awarded less for his injuries because he voluntarily placed himself upon the lift. This argument is a winner. But once the conversation is about how much money an injured person is awarded as opposed to if a injured person is going to be awarded money, the injured person is in a good position.
Wednesday, June 10, 2009
Negligent Supervision Part 2
Last week I blogged about the high standard a litigant must meet in order to successfully bring a negligent supervision suit against a school. As luck would have it, the NY Law Journal just published an example of a case that did meet that high standard.
In Thacker v. City of New York, plaintiff brought suit after she was assaulted by another student. While going down a hallway during an extracurricular activity, another student pushed the plaintiff, causing her to fall. As a result of the shove, the plaintiff suffered injuries to her knee. A student pushing another is a classic example of a an impulsive, unanticipated act for which a school is not held responsible.
An examination of Thacker's facts reveals why it was allowed to go to trial. The assaulting student had a history of disciplinary problems. At the time of the assault, the offending student was suspended from school but allowed to attend the extracurricular activity.
Not only did the offending student have a history of problems in general, but he had a history of run ins with the plaintiff. The offending student was once disciplined for calling the plaintiff a "bitch." The offending student also threatened plaintiff with a bottle and threw a chair across the room when reprimanded by a teacher.
The Court found that the school’s personnel should have monitored the offending student closely in light of his past behavior. The school personnel should have been extra vigilant considering that the plaintiff was in close proximity to the offending student.
The Court also found that the offending student’s behavior should have been anticipated because the school personnel created a situation where such a shove was foreseeable. During the extracurricular activity, a teacher announced that there was pizza in another room. Due to the limited quantity, the pizza was first come first serve. This "first come first serve" situation created a climate where students would run, jostle, compete, and push to get pizza. It would be foreseeable that the offending student would get carried away and get physical with others. It is further foreseeable that the offending student would get physical with someone he has had problems with in the past, such as plaintiff.
All these factors led the Court to conclude that the push given to plaintiff was not an unanticipated, impulsive, spontaneous act. As such, plaintiff was allowed to bring her case before a jury. I bring up this case to show that while negligent supervision cases are difficult, they are not impossible to bring, given the appropriate circumstances.
-Matthew Lombard, Associate Attorney
In Thacker v. City of New York, plaintiff brought suit after she was assaulted by another student. While going down a hallway during an extracurricular activity, another student pushed the plaintiff, causing her to fall. As a result of the shove, the plaintiff suffered injuries to her knee. A student pushing another is a classic example of a an impulsive, unanticipated act for which a school is not held responsible.
An examination of Thacker's facts reveals why it was allowed to go to trial. The assaulting student had a history of disciplinary problems. At the time of the assault, the offending student was suspended from school but allowed to attend the extracurricular activity.
Not only did the offending student have a history of problems in general, but he had a history of run ins with the plaintiff. The offending student was once disciplined for calling the plaintiff a "bitch." The offending student also threatened plaintiff with a bottle and threw a chair across the room when reprimanded by a teacher.
The Court found that the school’s personnel should have monitored the offending student closely in light of his past behavior. The school personnel should have been extra vigilant considering that the plaintiff was in close proximity to the offending student.
The Court also found that the offending student’s behavior should have been anticipated because the school personnel created a situation where such a shove was foreseeable. During the extracurricular activity, a teacher announced that there was pizza in another room. Due to the limited quantity, the pizza was first come first serve. This "first come first serve" situation created a climate where students would run, jostle, compete, and push to get pizza. It would be foreseeable that the offending student would get carried away and get physical with others. It is further foreseeable that the offending student would get physical with someone he has had problems with in the past, such as plaintiff.
All these factors led the Court to conclude that the push given to plaintiff was not an unanticipated, impulsive, spontaneous act. As such, plaintiff was allowed to bring her case before a jury. I bring up this case to show that while negligent supervision cases are difficult, they are not impossible to bring, given the appropriate circumstances.
-Matthew Lombard, Associate Attorney
Wednesday, June 3, 2009
Negligent Supervision claims against schools
First off let me apologize for not updating the Tolmage Peskin blog last week. Sometimes our clients' needs leaves us no time to post.
I came across a decision in today's NY Law Journal, TZ v. City of New York, in which a female student sued her school after being sexually assaulted in class. The teacher was present in the class, but failed to notice, prevent, or stop the assault. In an unusual turn, the only claim against the school upheld by the Court and preserved for trial was the negligent supervision claim.
This is worthy of note because negligent supervision claims are difficult to win. You have to prove: (1) that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; or in other words that the third party's (usually another student) conduct could reasonably have been anticipated AND (2) that the conduct was of sufficient nature and duration such that school personnel could actually have stopped it.
What does this mean? Examples help. A school bus driver was not responsible for an assault right outside his bus. In that case, the bus driver had no notice that a fight was about to ensue. Even if he did, the Court ruled there was no way he would have been able to get out of his seat in time to break things up before the plaintiff was injured. In another example, a teacher was not responsible for a student’s injury when the student fell from a hay ride. The Court ruled that the teacher would have had no way to know a bump was coming up and even if she did, would have had no ability to grab the student to prevent the fall. A third example: a school was not responsible for an assault in a hallway because the assaulting student had no history of violent behavior (so the school wasn’t on notice). Even if the school was on notice, the assault was spontaneous lacking a preceding argument or buildup; a teacher in the hallway could never had reached the students in time to prevent the punches.
Lets contrast these losing cases with TZ. In TZ, there had been a several prior sexual assaults in the school. As such, the school was on notice that this type of behavior could and has occurred. Teachers should thus be on the lookout. Also the assault was in a classroom, all the teacher had to do was look up at the group of kids around plaintiff to know something was going on. The assault lasted somewhere between 5-7 minutes. The Court ruled that this was enough time for the teacher to go to that part of the classroom and stop the assault.
What does this mean? It means that if your child was randomly hit in the hallway or at recess, you probably don’t have a case against the school (you of course have a claim against the assaulting student). You really have to prove that the school knew the assaulting student had a history of violence or that the assaulting student was harassing/bullying your child. You also really have to prove that school personnel would have been in a position to stop the assault when it did occur. This high standard protects schools from law suits stemming from most types of school ground assaults.
Tolmage Peskin knows that with a negligent supervision case against a school, the devil is in the details. It is the sort of case that can be won given the right circumstances. Contacting a lawyer to go over the details and circumstances of your potential case is truly the only way to know whether you can bring negligent supervision claim.
-Matthew Lombardi, Associate Attorney
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