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.
Wednesday, June 17, 2009
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
Wednesday, May 20, 2009
Forum Selection Clauses in Contracts
In Yakin v. Tyler Corp, a case reported in last week’s NY Law Journal, the US Court of Appeals upheld a contract provision which limited the litigation of any dispute between the parties to Nassau County, NY.
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
There is nothing particularly unique about this decision. It simply got me thinking of forum selection clauses. We here at Tolmage Peskin have increasingly come across these contract provisions in our commercial practice. Its now routine for me to ask a potential client in the first few minutes of the initial consultation if their contract has a forum selection clause.
People have to be very careful about the contracts they sign. The general principle in NY is that forum selection clauses are valid and enforceable. In short, if you sign a contract limiting your ability to bring a suit to California, you’re going to California in all likelihood.
For both litigants and lawyers, the implications of these clauses are profoundly felt. Practically speaking, the NY may not be able to take the case. The potential client has to have a lawyer who is licensed to practice in the forum designated by the contract. If the NY lawyer isn’t admitted to the contractual forum’s bar, the potential client is forced to look elsewhere.
In my opinion, forum selection clauses make it prohibitively difficult for individuals and consumers to bring suits; that is why these clauses can be so dangerous. If you’re a consumer signing a contact: 1) you probably don’t have any input on the contact’s drafting and 2) you don’t have the resources to travel and litigate. Indeed, very few individuals or consumers can travel for litigation, even if the chosen forum is only several states away from NY (you try driving back and forth to, say, Delaware and see how costly and problematic it becomes). We had a case where the forum designated was London, England. Our client was an elderly woman; she wasn’t going to London. She could not afford the travel costs, the food and lodging costs, plus the legal fees and strain of travel. Our challenge was to keep the case here in NY. The case was resolved without having to go to London. If the case was removed to London, the defendants would have for all intents and purposes, won.
Are forum selection clauses going to disappear? No; courts and corporations like them because they provide a bright line as to where disputes are to be litigated. As a consumer, you must protect yourself. Ask if there is a forum selection clause in the contract. Ask where that forum is. See if you can negotiate a more convenient forum for yourself. Or simply walk away from the contract. You may well be better off in the long run.
-Matthew Lombardi, Associate Attorney
Wednesday, May 13, 2009
Your Internet and the legal world
Social Networking sites such as Facebook, MySpace, and Twitter, as well as the proliferation of blogs have changed the way we communicate with each other and present ourselves to the world.
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
As a general matter, anything you place on the web is open for the public to see. If you have a public MySpace page or blog for example, that content is fair game for a lawyer. We had a case in which our client was a blogger. The defense Google'd our client's name, found his blog, downloaded exerpts and questioned him line by line from it during his deposition. As much as our firm was angered by such a tactic, the fact is our client's blog was discoverable.
We had a case where a minor, unfortunately, was one of the defendants. The minor defendant had a MySapce page on which he stated "booze" was among his favorite things. We found the page. Given the nature of the litigation, we questioned him thoroughly about underage drinking and what he meant on his MySpace page.
Many people make their social networking website pages private. I do not believe making a page "private" can prevent the content from being used in litigation. Federal courts outside of NY have upheld subpoenas to view and take information from litigants' private social networking site pages. I believe this precedent could also be expanded to content that users have taken off their sites, but is still stored in the social networking websites' archives and databases.
Twitter presents an interesting case. Twitter is much more fluid, with posts coming in the form of first person statements. You're talking via Twitter to your Internet audience about your day, you're feelings, etc in almost real time. I would argue that your Twitter posts could become admissible evidence via the "excited utterance", "present sense impressions," or even "statement against interest" exceptions to the NY hearsay rule.
Jurors' postings on the web are also fair game. There have been an increasing number of motions to set aside the verdict based upon what jurors have posted on the Internet. If you're on a jury, I would counsel you to be very circumspect about what you write concerning a case you participated in. And please, please, don't write about a case while its still going on.
What s the bottom line here? The bottom line is that courts are starting to recognize the information individuals post on the web. Lawyers are increasingly finding ways to utilize what you post about yourself and others. I wouldn't tell you to swear off social networking sites like Facebook or Twitter. I would just say: be aware and know that what you post can and will resurface.
-Matthew Lombardi, Associate Attorney
Tuesday, May 5, 2009
Advocating Outside the Courtroom
We here at Tolmage Peskin believe that advocating for our clients doesn't stop when you exit the four walls of the courtroom. We know that injured people are not only affected by the individual facts and circumstances of their cases, they are affected by the laws and policies set forth by New York State.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Because our clients are affected by elements outside their individual cases, we are members of the New York State Trial Lawyers Association. NYSTLA is a state-wide organization of attorneys who seek "to promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers."
On April 28, NYSTLA organized a group of over 170 lawyers to go to Albany and talk to lawmakers in the New York State Assembly and New York State Senate. I had the opportunity to be part of that group. We talked to these lawmakers about issues that affect injured New Yorkers. We tried to impress upon them that the hurt and injured are among the most vulnerable subsets of people. That injured people need to be assured access to the court house. That laws must be strengthened so that the rights of the injured are protected just as much as the rights of insurance companies and landlords are protected. Many of the issues we talked to lawmakers about can be found here.
I was encouraged by the NYSTLA trip to Albany. The lawmakers seemed very receptive to what NYSTLA attorneys had to share with them. I know the wheels of government turn slow; they are supposed to. But I believe that the advocacy we engaged in on behalf of the injured, coupled with a sustained campaign to educate people about our issues can bring about change. This sort of work is important; so that if you ever find yourself injured, you have the full protections afforded under law at your disposal.
Monday, April 27, 2009
Exiting From a Height -Labor Law 240(1)
Construction is one of the most dangerous professions one can engage in. Accidents on construction sites happen with unfortunate frequency. The Occupational Safety and Health Administration (OSHA) estimates that some 65% of construction workers work on scaffolds or heights. Thus falling from a height represents one of the most common and dangerous accidents on a job site.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
A recent NY Trial Courtt decision, Mrockowski v. City of New York, helps ensure workers’ safety when toiling from a height. In general, New York State has Labor Law 240, or the "scaffold law," which protects workers who fall from a height. Labor Law §240(1) states that all contractors and owners who erect or demolish a building have to erect scaffolds, ladders, ropes, among other devices, to provide for a worker’s safety.
Nothing in the wording of §240(1) addresses entrance or egress from a height. Does a contractor or building owner have to provide a safe way to get on or off of a scaffold? Mrockowski v. City says YES. The plaintiff was working from a scaffold 3 ½ stories off the ground. There was no ladder or other means of getting on or off the scaffold, so the plaintiff stepped from the scaffold onto the top of the brick wall that was being built. As he did so, the bricks gave way, causing the plaintiff to lose his balance and fall, causing injury.
The Court, quoting the NY Court of Appeals, recognized the core objective of §240(1) as "requiring protective devices for those working at heights...to allow them to complete their work safely and protect them from falling." Therefore, "a scaffold that does not provide a safe means of returning to the ground level does not provide the protection required by Labor Law section §240(1)."
This is a logical interpretation of the scaffold law to us here at Tolmage Peskin. It would make no sense to protect a worker when he is working at 20' in the air but not protect him when he’s trying to get down from that height. Deciding that the scaffold law includes entrance and egress, ensures that a worker must be protected throughout the whole process of working from a dangerous height; climbing to that height, working at the height and coming back down.
This decision is in line with what Tolmage Peskin believes, and therefore demands from contractors and land owners- namely safety for a worker throughout the construction process.
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