Syracuse Personal Injury Law Blog

Children’s product recalls can lead to devastating outcomes, P. 1

Published on: June 2, 2016 | By Jeff DeFrancisco

We hear about child-related product recalls every now and then, especially when they lead to a tragic outcome. If you go to websites such as kidsindanger.org, you can read through many tragic stories of products hurting or killing children. The problem is a lot more frequent than some readers may think.

In fact, kids’ products are recalled more than two times every week. That amounts to more than 100 children’s product recalls every year. The issue with these types of product recalls is that companies don’t exactly spend a lot of resources advertising the recall. They will usually send out a press release to let consumers know. That’s why it is important to keep an eye on product recall websites in order to keep track of recalled items. Chances are good that you may have a recalled product in your home at one time or another.

Just about anything can be recalled: toys, cribs, bouncers, high chairs, you name it. These recalls are usually regulated by the US Consumer Product Safety Commission (CPSC), although this agency can’t really force a company to recall an item. The hope is that the company makes that decision after learning of any defects or issues related to a product in order to protect consumers.

Premises liability litigation and the need for experienced legal counsel, P.4

Published on: May 31, 2016 | By Jeff DeFrancisco

In recent posts, we’ve been looking at the topic of premises liability and strategies property owners sometimes use to minimize their liability. From what we’ve said thus far, it should be fairly clear why it is important to work with experienced legal counsel in seeking compensation from a negligent property owner.

First of all, property owners cannot be expected to take responsibility for their negligence when an accident occurs on their property. This is especially true in cases where the injured party may have failed to take reasonable care in some way or can be said to have assumed the risk by participating in a sporting or recreational activity. Having an advocate is necessary to ensure a negligent property owner is not successful in refusing to take responsibility.

Second, premises liability goes beyond slip and fall cases and encompasses situations involving violent crime and theft, food poisoning, and construction accidents. It is important to have guidance and advocacy in cases like these where premises liability may be a less obvious cause of action.

Premises liability litigation and the need for experienced legal counsel, P.3

Published on: May 29, 2016 | By Jeff DeFrancisco

This is our fourth post in a series dealing with the topic of premises liability. We’ve already looked briefly at premises liability claims in general, as well as the issues of comparative negligence and assumption of risk in the context of premises liability.

So called “slip and fall” cases are among the most common types of premises liability claims. Case law in New York has established several viable defenses for property owners faced with potential premises liability in slip and fall cases. First of all, a plaintiff must be able to prove the existence of a dangerous or defective condition on the property which led to his or her injury. A plaintiff who cannot who cannot provide sufficient evidence to establish such a condition may not hold the property owner liable.

Not only must there have been a defective condition on the property, but the defect must a certain character to it. Two important defenses deal with the nature of the defect. First of all, the defect must not have been trivial. What exactly constitutes trivial is a matter for a jury to decide, and there are factors that are supposed to be taken into account. The basic idea, though, is that not every technically defective condition is sufficient to give rise to a claim of negligence.

Premises liability litigation and the need for experienced legal counsel, P.2

Published on: May 28, 2016 | By Jeff DeFrancisco

In our last post, we began looking at the principles of assumption of risk and comparative fault in premises liability cases. In the state of New York, premises liability is based on negligence, which is the failure to carry out a legal duty owed to another.

While some states make premises liability dependent on the classes of persons who are on the premises—whether they are invitees, trespassers, licensees—New York law focuses more on reasonableness of conduct under the circumstances of the case. Speaking generally, though, a landowner or business owner will be liable when he or she created a dangerous or defective condition which causes an accident or when he or she had notice of the condition and failed to take action to address it in a reasonable amount of time.

Notice of a dangerous condition may be either actual or constructive, the difference being that constructive notice may be found when a specific defect in the property is visible and apparent and exists for a long enough time that the property owner should have discovered it and taken steps to address it.

Premises liability litigation and the need for experienced legal counsel, P.1

Published on: May 27, 2016 | By Jeff DeFrancisco

Last time, we began looking at a premises liability case out in California involving an injury that occurred in a New York health club. One of the issues in that case, we noted, was whether the health club patron assumed the risk of injury by participating in an activity offered by the club. Another issue was comparative negligence, and whether or not the patron acted negligently in obtaining the injury.

When it comes to premises liability law, New York is a pure comparative fault state. In tort law, pure comparative negligence refers to a scheme whereby a court can acknowledge a finding of negligence on the part of the plaintiff and reduce any damages awarded in proportion to the plaintiff’s negligence in contributing to his or her own injuries.

This means that one of the defenses available to property owners and businesses in premises liability litigation is that the injured party acted negligently. New York law also recognizes assumption and risk as well, which is a slightly different principle. Assumption of risk is the principle that a property owner or business does not have a duty to protect a patron if the patron freely assumes a known risk. Assumption of risk is usually only applied in cases involving athletic or recreational activities.

Do apology laws actually work?

Published on: May 27, 2016 | By Jeff DeFrancisco

In a prior post, we highlighted the prospective success of safe harbor provisions, which essentially protect physicians who want to give alternative recommendations when medical procedures don’t go as planned. These provisions are envisioned as a way to improve health care; which in turn, may limit medical malpractice lawsuits.

However, there are also apology laws that encourage physicians to express regret and sympathy when patients are injured due to medical errors. Aside from giving an avenue to humanize doctors, it also appears that apology laws may help to resolve medical malpractice cases.

According to a study produced by the American Urological Association, the mean litigation length was just over three years in states that had apology laws compared to 5.6 years in states without such laws. The goal behind these laws is to encourage apologies without the threat of litigation, as a physician’s expressions of regret or sympathy could be used in future litigation in New York.

Premises liability case highlights business’ failure to take responsibility

Published on: May 26, 2016 | By Jeff DeFrancisco

When it comes to safety in places of business, most of us expect that businesses are going to be proactive in dealing with dangerous conditions that exist on the premises. We assume that if there is a condition on the property that presents a significant risk to patrons, the condition will be addressed in a timely manner. Unfortunately, this doesn’t happen and injury can occur as a result.

When a business patron is injured, the right thing for the business to do in most circumstances is to take responsibility for the injury. Unfortunately, this doesn’t always happen either. Take a recent lawsuit filed in a California court. The case involved a man who allegedly acquired a knee injury when he jumped and landed on a defective floor board at a Levittown, New York 24 Hour Fitness in January 2014. The man, at the time of the injury, had been participating in an activity offered by the club.

The health club’s response to the complaint was not to take responsibility, but rather to put the blame back on the club patron by arguing that he assumed the risk of injury by engaging in the activity offered by the club. The fitness center also denied that there was any defect, claiming it conducted regular inspections. Its motion to dismiss the personal injury suit, however, was denied.

Looking at the risks of home birth: be careful what midwife you use, P.2

Published on: May 20, 2016 | By Jeff DeFrancisco

Last time, we began looking at some of the risks of electing for a home birth, particularly at the role the midwife has to play in these risks. As we noted, lack of training really sets a certain type of midwife apart from midwives who go through more rigorous training.

The general risks of using a C.P.M, the lesser educated type of midwife, can be seen in the loose approach to ethics and the lack of safety standards taken by the Midwives Alliance of North American, the agency that certifies them. Going with a C.P.M. might not be a problem in low-risk pregnancies, though even then couple should be very cautious, but for women at high risk, it is unwise to do so.

Aside from lack of training, another risk factor with C.P.M.s is that it is illegal for them to practice in many states. In the state of New York, C.P.M.s may practice, but only after they become a licensed midwife. Earning a C.P.M. certification is not a direct route to licensure in New York. Rather, C.P.M.s in this state must demonstrate their credentials to the New York State Board of Midwifery. According to the New York State Education Department, Midwives must have the equivalent of a master’s degree, attend an accredited midwifery school, pass a certification exam, and have some training in newborn health, primary care, well-woman car, family planning and pharmacology.

Looking at the risks of home birth: be careful what midwife you use, P.3

Published on: May 18, 2016 | By Jeff DeFrancisco

We’ve been looking in recent posts at the issue of home birth, the risks involved, and midwife professional liability. One important point we need to make about this topic is that, while home birth may be inherently risky, particularly for certain women, those who do take the risk of having a home birth don’t assume all the risk in the eyes of the law. Licensed midwives are still bound by professional standards of care and must answer for their negligence when they harm a patient.

Not every error will rise to the level of malpractice, of course, but only errors which violated an established standard of care. The American College of Nurse Midwives has defined certain general standards which licensed midwives are bound to follow. For example, as we’ve been discussing, midwives are expected to be qualified practitioners, which implies licensing, training and education as required. The standards of care cover a number of other areas of practice.

The following are some of the expectations included in the practice standards:

Looking at the risks of home birth: be careful what midwife you use, P.1

Published on: May 18, 2016 | By Jeff DeFrancisco

The way a couple chooses to give birth to a child is a very personal and potentially sensitive matter. Different couples have different approaches and opinions about what is best for the child, and what is most comfortable for the mother.

One of the options some couples have, depending on their interest, is home birth. It isn’t a particularly popular way to go—less than two percent of births are at home in most developed countries—but it is an option nevertheless. For those who do choose to go with a home birth, it is important to realize there are certain risks involved.

For instance, some data shows that babies born in planned home births are about seven times more likely to die than babies born in hospitals, while other studies show a death rate about three times higher than hospital births. The studies suggest that racial and economic differences, as well as the quality of prenatal care, is not a factor here.