Syracuse Personal Injury Law Blog

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.

In May, may you be aware of these health issues, Pt. 1

Published on: May 16, 2016 | By Jeff DeFrancisco

With 12 months in a year, it can be difficult to keep up with the numerous causes that monthly awareness campaigns bring forward. Awareness causes, however, provide crucial opportunities for communities to become informed and take steps that might save lives.

The month of May boasts various awareness campaigns. This is one of two posts that will outline one of just a couple of health conditions that threaten the quality of life of so many people in New York and beyond. Let’s discuss mental health awareness.

The National Alliance of Mental Illness warns that mental illness can be hard to identify and, therefore, to diagnose. Medical care providers might not initiate conversations about mental health conditions unless a patient brings up their concerns. The following are some symptoms that should prompt an important conversation with a doctor:

Holding auto manufacturers, distributors, retailers liable for their role in auto accidents

Published on: May 14, 2016 | By Jeff DeFrancisco

This is the fifth post in a series dealing with the topic of third party lawsuits in motor vehicle accident cases, by which we mean liability for parties who were not directly involved in the accident. Last time, we looked at truck accident cases and the possibility of vicarious liability for failure to properly supervise trucking employees to ensure compliance with federal and state safety rules.

Another possibility for pursuing third party liability in motor vehicle accident cases arises when product defects contribute to the accident. When an accident is caused by vehicle defects or malfunctions, or a failure to provide adequate warnings or instructions, it is important to work with an experienced attorney to seek compensation from responsible parties, including manufacturers, distributors and sellers.

There are several legal theories upon which product liability cases may be based. With negligence claims, an accident victim sues a manufacturer or retailer for failure to exercise reasonable care in the design or manufacture of the motor vehicle. Distributors and retailers may also be sued for failure to take reasonable care in the inspection of the vehicle or failure to provide the purchaser adequate warnings or instructions about the product. Product liability cases based on strict liability do not require proof of fault, but do require proof that the manufacturer caused the victim’s injury. Product liability cases may also be based on breach of warranty claims.

Holding trucking companies accountable for their role in auto accidents

Published on: May 13, 2016 | By Jeff DeFrancisco

Recent posts on this blog have focused on the issue of vicarious liability in personal injury litigation. There are a variety of situations where an employer can become liable for a motor vehicle accident caused by an employee. One common area where this can happen is in truck accident cases.

Trucking is a heavily regulated industry, perhaps not strictly enough according to some, but nevertheless bound by a significant number of rules and regulations. Both drivers and their employers—as well as the independent contractors that work with them—have the responsibility to abide by the various state and federal safety rules governing the industry. These include rules for properly securing cargo, hours of service rules, vehicle maintenance rules, rules for monitoring truckers’ fitness to operate commercial vehicles, and so on.

Take a common example of a truck safety violation—failure to rest breaks as required under the hours of service rules. While it certainly is the responsibility of each trucker to follow and record compliance with federal rest requirements, it is also the responsibility of the employer to monitor employee compliance with the rules. Trucking companies are expected to properly train and instruct their drivers, and to have processes and systems in place to ensure unsafe driving practices are caught and not allowed to continue.

Vicarious liability in personal injury litigation, P.2

Published on: May 12, 2016 | By Jeff DeFrancisco

Last time, we began discussing the issue of liability in the context of motor vehicle accidents. As we noted, it is important for accident victims to explore all possibilities in terms of liability, including the possibility of comparative negligence and vicarious liability, particularly employer liability for the actions of employees and independent contractors.

We’ve already pointed out that employers are generally accountable for the wrongful actions of employees acting within the scope of employment, but are only liable for the wrongful actions of independent contractors in limited situations. One important limitation on vicarious liability is foreseeability, which limits the type of actions for which an employer can be held responsible.

Established New York case law has it that, to be held vicariously liable, the employee’s actions must have been generally foreseeable by the employer, as well as naturally incident to the employment. In the context of motor vehicle accidents, this means that the general type of employee conduct which led to the accident must have been reasonably expected and must be a natural part of the motorist’s work duties.