The Supreme Court, New York County, made an important ruling last week. The decision in McCoy v. Metropolitan Transit Authority improved an injured worker's ability to seek compensation.
In McCoy, the plaintiff was injured during the transport of a 20 foot long beam via a multifunction forklift. The forklift had two modes, it could act as a traditional forklift, or it could be converted into a mobile crane, complete with boom. It was while in this crane mode that plaintiff suffered his injury.
The question for the Court was, which law governing safety precautions governed the operation of this machine, forklift regulations or crane regulations? The answer: BOTH
The Court reasoned that when dealing with multifunction machines, the applicable law changes with the function of the machine. Multifunction vehicles cannot be limited to one standard of law when they are not limited to one function. In this case, the multifunction forklift machine would be governed by forklift regulations when it was being used as a forklift. When it was being used as a mobile crane, the law governing cranes must be followed.
This ruling applies common sense to the law. When most of the safety regulations governing work machines were written, multifunction vehicles were virtually non existent. This decision allows the courts to elevate function over form. It allows a court to focus on what a machine was doing at the time of an accident, not what other functions the machine has the capability to do. It allows the court to look beyond the title of a machine to its actual use. For instance, in this case, the Court did not allow the defendant to hide behind the technicality that the machine was called and billed as a forklift. The machine was used as a crane, so it was treated as a crane.
This decision leads to a more even handed application of law based upon the day to day realities of a job site, as opposed to legal fictions. So when is a forklift a forklift? Only when its actually a forklift.
Wednesday, September 30, 2009
Friday, August 14, 2009
Damages in a New Light
It has been almost a month to the day that this blog was updated. For those of you that are keeping with us, thank you. Summer hiatus goes by faster than you would think.
When at the recent American Assocation for Justice conference in San Francisco, we had the opportunity to attend a thought provoking conference on damages. One usually thinks of the damages claimed in a law suit as being the medical costs and pain and suffering associated with bodily injury. One also thinks of damages as economic loss in the form of lost wages.
But what about economic loss that isnt measured in actual dollars lost? What about economic loss that is one degree removed from the out of pocket doolar? I'm talking about damage to credit.
The argument works this way- an injury which prevents someone from working causes the loss of income. However, bills do not just stop coming in. So the person has to fall back on using credit cards to pay for things such as groceries and utilities. Credit card balances rise but remember, the injured party still has no money coming in. When the injured party falls behind on their credit card payments, their credit rating is damaged. As you know, a bad credit rating can affect one's ability to get a loan, the interest rates on loans one does get, the ability to buy a house or car in the future among other things.
The damage to one's credit rating is measurable. The increased interest rates one would have to pay on future loans can be acurately predicted and opined about by experts. These experts are generally admissable as witnesses in court. The documentary evidence about one's credit rating is similarly admissable.
The key here is that injury can cause loss that isnt immediately observable. Injry can cause loss that while identifiable, won't necessarily rear its head until years into the future. Such damages must be included- and can be included- when an injured person seeks compensation in court.
When at the recent American Assocation for Justice conference in San Francisco, we had the opportunity to attend a thought provoking conference on damages. One usually thinks of the damages claimed in a law suit as being the medical costs and pain and suffering associated with bodily injury. One also thinks of damages as economic loss in the form of lost wages.
But what about economic loss that isnt measured in actual dollars lost? What about economic loss that is one degree removed from the out of pocket doolar? I'm talking about damage to credit.
The argument works this way- an injury which prevents someone from working causes the loss of income. However, bills do not just stop coming in. So the person has to fall back on using credit cards to pay for things such as groceries and utilities. Credit card balances rise but remember, the injured party still has no money coming in. When the injured party falls behind on their credit card payments, their credit rating is damaged. As you know, a bad credit rating can affect one's ability to get a loan, the interest rates on loans one does get, the ability to buy a house or car in the future among other things.
The damage to one's credit rating is measurable. The increased interest rates one would have to pay on future loans can be acurately predicted and opined about by experts. These experts are generally admissable as witnesses in court. The documentary evidence about one's credit rating is similarly admissable.
The key here is that injury can cause loss that isnt immediately observable. Injry can cause loss that while identifiable, won't necessarily rear its head until years into the future. Such damages must be included- and can be included- when an injured person seeks compensation in court.
Wednesday, July 15, 2009
Judge Sotomayor's Supreme Court Nomination Hearings
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
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
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.
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