Syracuse Personal Injury Law Blog

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.

Vicarious liability in personal injury litigation, P.3

Published on: May 12, 2016 | By Jeff DeFrancisco

We’ve been looking in recent posts at the issue of vicarious liability in the context of motor vehicle accidents involving employees and independent contractors. Last time, we looked particularly at the foreseeability and scope of employment requirements. As we noted, the key question with scope of employment is whether the employee was doing the employer’s work at the time of the accident.

There are a variety of factors courts consider when determining whether an employee was acting within the scope of employment. These factors include, first of all, the time, place and location of the act. In the context of a motor vehicle crash, the court would be looking for where and when the crash occurred. Did it occur on the employer’s premises or on a job site? Did the crash occur before, during or after working hours? These and other such questions are important to consider.

Another factor is the actual relationship between the employer and employee and how this relates to the employee’s work duties. If the worker’s job description or contract doesn’t include certain activities, but is an established agreement that the employee engages in those activities, the latter may be considered within the scope of employment for purposes of vicarious liability. In cases where the employee did not perform his or her duties as directed or as they are ordinarily performed, courts will also consider the extent of the departure and whether any wrongdoing that caused injury could have been reasonably anticipated by the employer.

Vicarious liability in personal injury litigation, P.1

Published on: May 11, 2016 | By Jeff DeFrancisco

In a previous post, we mentioned that third party liability is an important issue to explore in motor vehicle accident cases where there may have been other parties who contributed to the accident other than the individuals directly involved in the crash.

The possibility of pursuing such third-party liability really depends on the circumstances of the case, and it is important to work with an experienced attorney who can help identify all potentially liable parties and hold them accountable. One possibility for third party liability is vicarious liability, which involves holding employers liable for the wrongdoing of their employees.

Under New York Law, an employer is generally liable for the actions of an employee as long as the employee was acting within the scope of employment. Employers are generally not going to be liable for the wrongful actions of independent contractors since they do not exercise as much control over their actions. In New York, the courts will determine whether an employment relationship exists on the basis of whether one party maintains general supervisory powers the other. If the supervision only amounts to incidental control, there is no employment relationship that may give rise to vicarious liability.