Central New York Injury Lawyer Blog

Central New York Personal Injury Lawyer Explains Difference between "Pain" and "Suffering"

Tue, 09 Mar 2010 01:09:11 -0500

In my last blog post, I explained that "pain and suffering" is an important part of compensation sought in a personal injury lawsuit. Personal injury lawyers here in Central New York, and everywhere else for that matter, tend to lump the two words, "pain" and "suffering", together as if they meant the same thing. But they don't. There is a difference between "pain" and "suffering". That's what today's blog is about.

Generally, "pain" is the physical part of the equation. For example, fractures, broken bones and nerve impingements all cause physical pain. Suffering, on the other hand, is the mental and emotional harm that physical pain can cause. The physical pain inhibits the victim's ability to work, exercise, or do his or her normal routines. For example, a victim of an accident may not be able to go bowling anymore, or not be able to hold his or her child. This can cause serious psychological suffering, including anxiety, sadness and depression. That is what we call "suffering".

If the pain is long term, then the suffering is usually correspondingly greater. Long term disabilities can cause a lot of "suffering". They can create a permanent and dramatic change in lifestyle and life outlook, leading to depression, fear, panic attacks, post traumatic stress disorder (PTSD), or even suicidal thoughts.

So pain causes suffering. And a lot of pain causes a lot of suffering. But pain is not the only thing that causes suffering. The other losses suffered by a severely injured person also cause suffering. For example, an injured parent may have had a good income, but now can't work. Her income is drastically reduced and she can no longer afford to provide her children with the same lifestyle. This causes suffering, that is, mental anguish, worry, stress and emotional turmoil.

So there you have it. When personal injury lawyers talk about "pain and suffering" compensation, they mean compensation for the total culmination of the physical and psychological and emotional aspects affecting the victim after an accident. Under our civil justice system, those who endure pain and suffering because of someone else's carelessness, negligence or intentional wrongdoing, are entitled to full compensation.

A competent trial lawyer must know the proper techniques for enhancing a jury's understanding of, and feeling for, his or her client's pain and suffering. If fact, that is one of the most important things a personal injury trial lawyer can do. The other losses (lost income, medical bills, etc.) often speak for themselves. But since pain and suffering are invisible, the trial lawyer must know how to make them not only visible, but palpable and real to the jury.

Syracuse New York Personal Injury Lawyer Explains "Pain and Suffering" Compensation

Sun, 07 Mar 2010 10:14:14 -0500

"Pain and suffering" is the ugly duckling of personal injury damage claims. Many people roll their eyes when those three words are spoken, especially when spoken by personal injury lawyers. The concept is so unpopular, so despised, that when Syracuse and Central New York personal injury and medical malpractice lawyers pick juries for trial, one of the most important questions we ask, to see whether a juror can be fair, is, "what do you think of awarding compensation for pain and suffering"? Many, many prospective jurors say, "I'm against it" or like words.

Yet New York personal injury law entitles victims of the careless, negligent or intentional acts of others to FULL compensation for all their losses, including lost wages, medical expenses and, yes, "pain and suffering". Why? Think of the "scale of justice" (pictured on this page). When someone is injured through someone else's fault, the scale tips down on one side. The "down" side is where the victim is. The whole idea of our civil justice system is to tip the scale back up to a balanced state again. If someone has suffered lost wages, medical expenses, and pain and suffering, would the scale be tipped upright again if he or she were compensated only for lost wages and medical expenses, but not pain and suffering?

Unfortunately, people seriously injured in an accident don't just jump up off the pavement, brush themselves off, and go on with their lives as if nothing happened. Pain and Suffering sometimes lasts a lifetime. The victim's way of life can be completely altered. It converts athletes into couch potatoes. It turns happy people into sad, anxious people. It turns families upside down when one parent, or child, is constantly in pain.

Pain and suffering should not be a political issue. It is not an issue to be laughed at or derided. It is very real, and very serious, for those who aren't able to play with their kids the way they used to, or have to take pain medications every day to deaden, but never completely eliminate, the pain. When you are in pain, you can think of almost nothing else except the pain. You can't enjoy the simple pleasures of life because the pain shouts out the pleasure.

Justice requires FULLY compensating innocent accident victims. Only a FULL cup of justice is justice. A half cup of justice is no justice at all. Awarding less than FULL compensation keeps the scales of justice forever out of balance, with the innocent victim on the downside. This is why any "civil justice system" must compensate innocent accident victims for their pain and suffering. If it does not, it cannot be called a "civil JUSTICE system", or even a "CIVIL" system. It is just a "system", nothing more.

Syracuse Malpractice Lawyer: Nursing Home Neglect and Maplractice Is Pandemic, As Demonstrated by Recent Fines Issued to Syracuse Nursing Homes.

Sat, 06 Mar 2010 09:40:00 -0500

Lawyers who handle nursing home neglect, negligence and abuse cases in the Syracuse and Central New York area are never surprised to see local nursing homes cited and fined for serious deficiencies. In fact, what is surprising is that more fines and citations are not issued. Bad conditions in nursing homes are pandemic, not only here in Central New York, but all across the United States.

So we at Michaels & Smolak were not surprised to read in yesterday's Post-Standard that three Syracuse-area nursing homes were recently fined for serious deficiencies that harmed patients. And for at least two of them, this was not the first time. The three nursing homes, and their wrongdoings, are:

St. Camillus Health & Rehabilitation Center in Geddes, cited and fined for serving a regular meal to a resident who was supposed to get pureed food. The resident choked, was hospitalized and subsequently died.

Rosewood Heights nursing home at 614 S. Crouse Ave. in Syracuse, cited and fined for failure of its nurses to wash hands, change gloves and take other infection control precautions and because staff members were not administering insulin injections correctly.

Central Park Rehabilitation and Nursing Center, 116 E. Castle St., Syracuse, cited and fined for failing to prevent residents from being exposed to a patient with a suspected case of active tuberculosis.

There are more than 34 million Americans over the age of 65, and approximately 40% of them live in nursing homes or other long-term care facilities. With an aging population that lives longer thanks to modern medicine, nursing homes have become a necessity for many. But nursing home negligence, malpractice, neglect and abuse are never a "necessity", rather, they are a shameful reality.

What causes nursing home abuse and neglect? In a word, "greed". Nursing home owners too often put profit before the well-being of their charges. They cut corners to shed costs to maximize profit. They can get away with this because their "customers" are too frail, frightened or disabled to complain.

Experts say that most abuse goes unreported because many seniors are physically or mentally unable to report it. Sometimes they are terrified of receiving even worse treatment if they report abuse or neglect.

How can you tell whether your elderly parent or grandparent is being neglected, abused, mistreated or is the victim of nursing home malpractice? Some signs and symptoms of abuse and neglect are: unexplained injuries, bruises, cuts, broken bones, torn clothing, bleeding, malnourishment, dehydration, and fear.

If you suspect an elderly relative in a nursing home is the victim of neglect, abuse or nursing home medical malpractice, call a nursing home neglect and medical malpractice lawyer to discuss your suspicions.

Central New York Auto Accident Attorney on the SECOND Biggest Mistake People Make When Buying Auto Insurance

Fri, 05 Mar 2010 09:30:40 -0500

As a Central New York auto accident lawyer, I know first hand what kind of automobile insurance people should buy, but don't. Yesterday I blogged about the BIGGEST MISTAKE people make when choosing auto insurance. Today I am addressing the SECOND BIGGEST mistake they make. What is it? They don't buy "spousal liability coverage". What's that? Let me explain.

Let's say you are taking a road trip with your wife (or husband), your child and a friend. That makes you and three passengers. You make a mistake and cause a car crash (for example, you failed to see a stop sign, or you dosed off at the wheel). Everyone in your car is seriously injured. Of course, everyone is entitled to basic "no-fault" coverage for basic medical costs and lost wages, but that is very limited and can run out quickly when serious injuries occur. But your "liability" auto insurance should pay to compensate everyone in your car for their losses beyond no-fault, including pain and suffering (at least to the policy limit), right? Wrong! Everyone gets compensated EXCEPT YOUR SPOUSE.

Holy mackerel! How come? Because you didn't buy SPOUSAL LIABILITY COVERAGE. You see, traditionally New York barred spouse-against-spouse liability claims. The idea was that a marriage makes one person out of two, so a spouse-on-spouse claim was like suing yourself, which was not acceptable. When that notion fell by the wayside, and New York began allowing spouse-against-spouse personal injury lawsuits, including car accident lawsuits, the auto insurance industry in New York did not keep pace. Automobile insurance policies universally continued to provide an exclusion of coverage for claims brought by one spouse against the other.

Then, a few years ago, New York State passed a law that REQUIRES automobile insurance companies to offer their policyholders the opportunity to purchase spousal liability coverage. But you must REQUEST this additional coverage --- it is not automatically offered. That is because insurance companies don't make a profit off of this coverage. They don't really want you to buy it, which is why you should buy it. It's a great deal: Important protection for the person you love most at low cost. How can you beat that?

Why would anyone want to own car insurance that provides full liability coverage for complete strangers they accidentally injure in a car crash, but zero coverage to one's spouse? Not buying spousal liability insurance is therefore, in my book, the second biggest mistake you can make when you buy motor vehicle insurance.

My advice? Call your insurance agent or broker today and ask about spousal liability insurance.

Central New York Car Accident Attorney on The BIGGEST Mistake People Make When Buying Auto Insurance.

Thu, 04 Mar 2010 23:12:44 -0500

Most people I represent in Central New York auto accident cases have made a big mistake. (No, it's not hiring me, really!). They did not buy the right insurance. I blog on this subject in the hopes that some of my readers will avoid this mistake. Let me explain.

I represent victims of car, truck and motorcycle accidents in Syracuse and Central New York every day. One of the first things I do when I am hired is to carefully examine all the relevant insurance policies. In a typical two-car accident, with no passengers, where my client was not at fault and the other guy was, I look principally at two insurance policies: my client's and the other guy's (there could be more policies applicable, but let's keep this simple).

What am I looking for? In the other guy's policy, I am looking for the liability (also called "bodily injury") policy limit. This tells me the maximum amount of money the other guy's insurance will pay to my injured client for his injuries. The minimum liability coverage in New York is $25,000 per injury and $50,000 per accident. Thus, in a minimum policy, my client would be entitled to a maximum of $25,000. It doesn't matter how hurt he is --- paralyzed, dead, whatever -- $25,000 is the most he can get from that insurer.

So why do I look at my own client's policy? Because this might get us beyond the limit I just talked about. In my client's policy, I am looking principally for SUM (Supplemental Underinsured Motorist) coverage. (I am also looking for something called "APIP" and other insurance coverage, too, but let's keep this simple). What is SUM? It is easiest to explain by way of an example. Say you are struck by a guy with a $25,000 liability policy and you have a $100,000 SUM policy. You get the $25,000 from the other guy and $75,000 from your own insurer, for a total of $100,000. Get it? Sure beats getting stuck with only $25,000, WHICH IS EXACTLY WHAT HAPPENS TO MOST MY CLIENTS. Why? Because they did not purchase SUM coverage above the minimum $25,000.

So that leads to this question: Why don't they buy more SUM coverage? BECAUSE THEY DON'T KNOW ABOUT IT. Their insurance brokers and agents just don't bother telling them about it. Why not? Perhaps because it is very cheap, and insurers don't make a lot of profit selling it. This also explains why you should definitely buy it! Call your insurance agent today and demand it! They have to sell you SUM up to the limit of your own liability policy if you ask for it (e.g., if you have a $100,000 liability policy, you can purchase up to $100,000 in SUM coverage). Protect yourself, and your family (your injured passengers can make a SUM claim on your policy, too). Don't make the biggest mistake most my clients make.

Syracuse Trip and Fall Lawyer Explains Why He Just Turned Down a Trip and Fall Case

Mon, 01 Mar 2010 21:59:06 -0500

Today a sweet elderly lady met with me in Geneva, New York, with what she described as a "trip and fall" case. I listened sympathetically to her story of how she was hurt, and then told her could not take her case. Why?

Let's start with what she tripped and fell on. She was on her way out of a local supermarket with her adult son when she suddenly tipped on . . . well, she really did not know what it was. Her son, who had been with her, said that when he looked down after her fall, there was a floor mat that was "flipped up at the edge". He deduced that his mother must have tripped over the flipped up edge of the mat. The store should have been more careful with that mat, right?

There are two problems with that:

(1) It is at least as likely that our lady's tripping action caused the carpet edge to flip up rather than the other way around. Since no one saw the rug BEFORE she began to trip, we cannot know whether it was already flipped up or whether our lady's tripping action caused it to flip up.

(2) Even assuming the carpet edge had been "flipped up" and that this made her trip, we don't know how or when the carpet became "flipped up". Another customer might have accidently flipped up the carpet just moments before. The thoughtless customer might not have bothered straightening out the carpet. The supermarket can only be held liable if it had "notice" (knew or should have known) that the carpet was flipped up for a long enough time before the accident to remedy or fix it. Otherwise, the store was not "negligent" in causing the accident.

Fortunately, this lady's injuries were not very significant. I had a feeling she was going to be as good as new within a few months.

Even though I had to reject this nice lady's case, she seemed grateful for the time I spent with her explaining why she did not have a case. Before she came in to see me, she had already called a few lawyers who, after hearing her story, had simply told her they were "too busy" to take the case. Although many lawyers make it a practice to turn down cases in this less-than-honest way, I am proud that at Michaels & Smolak we always give people a REAL reason why we are rejecting their case. And they appreciate it. Sometimes they even send friends or family to us with their cases. Being "real" with people is not only the right thing to do, it also reaps its rewards.

Syracuse New York Medical Malpractice Lawyer's Big Win in Appellate Court hits Medical Malpractice Blogosphere.

Sun, 28 Feb 2010 22:35:24 -0500

I recently had a win at an appellate court in Rochester, New York, that has been the subject of chatter within the New York medical malpractice lawyer blogosphere, and even made an entry on one of our nation's top legal blogs, Eric Turkewitz' New York Personal Injury Law Blog. If Turkowitz found my appellate win fit to blog about, I figured I should blog about it myself. So here's the real scoop, from the horse's mouth:

My partner, Lee Michaels, sued a doctor for medical malpractice, and needed to take the deposition of his client's treating cardiologist (whom Lee had NOT sued) because that doctor had information Lee needed to prove his client's injuries. Lee scheduled a video-taped deposition (a deposition to be used at trial in lieu of live testimony) of the doctor-witness in our law office in Auburn, New York.

Lo and behold, the doc witness shows up with a medical malpractice defense lawyer, even though he had not been sued, and was just a witness. Not unusual. Now-a-days, many malpractice insurers require their insured doctors to notify them when they are subpoenaed as a witness in a medical malpractice case, and then send a lawyer with the doc to the deposition.

But this was not just any lawyer. It was an obstructionist lawyer. The lawyer was objecting up and down to many of my partner's questions. She was making it very difficult for Lee to get a nice flow of testimony. She was even suggesting, by her objections, the answers the doctor should be giving.

Lee had enough of that, called the deposition off, and asked me to bring a motion to, well, shut the doc's insurance lawyer up. I researched the issue, and found absolutely no New York cases that talked about what a lawyer for a non-party witness could and could not do or say at a deposition. I found a statute, however, CPLR 3113, that seemed promising. Essentially it said that examination and cross-examination at depositions must proceed just like they would at trial. I thought about this. Hmm . . . at trial, a non-party witness has no right to "lawyer up", so why should he have that right at deposition?

I brought this argument to the judge, but he did not buy my argument --- and instead ruled that Lee's client had to either release the witness-doctor from liability for any malpractice he might ever have committed on her, or else Lee would just have to call the doctor to trial for live testimony instead of taking his video-taped deposition for use at trial.

I appealed and, guess what? The appellate court in Rochester agreed with me. Those guys up in Rochester sure know how to read a statute! The Court specifically held that Lee was entitled to take the videotaped deposition of his client's cardiologist and that the doc's insurer-provided lawyer was barred from objecting or otherwise participating in the deposition. Moreover, the appellate Court seemed pretty miffed at the trial judge for trying to force our client to sign a release in favor of the testifying doctor in exchange for allowing the deposition to proceed. The Court found that placing such a condition on the doctor's duty to testify at deposition was "repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony when called to the witness stand." Holy Cow! You can almost see the American flags waving in the background of that sentence!

So there you have it, the story from the horse's mouth.

Central New York Personal Injury Attorney: Cover-Up Will Hurt Toyota's Chances in Sticking Pedal Lawsuits.

Sun, 28 Feb 2010 10:06:24 -0500

Cover-ups. Personal injury lawyers here in Syracuse, Central New York, and everywhere, love them. We play them for all they are worth. Think about those big tobacco lawsuits. Would those smokers have rung the bell with those big pain and suffering verdicts without evidence that the tobacco industry had covered up what they knew about smoking and cancer? Nothing makes a jury madder than a cover up. And nothing pushes the size of a personal injury verdict up more than raw anger.

This blog post is about the Toyota defective pedal dilemma. But first, let me digress (again!).

In a Syracuse New York personal injury lawsuit I handled a few years ago, the insurance company hired an expert witness, an orthopedic doctor, to testify that my client's lower back injury was pre-existing and therefore not caused by her slip and fall on the defendant-restaurant's wet floor. He based this opinion in part on the fact that my client had not complained about lower back pain until two weeks after the fall. He was wrong and I knew it. My client had reported back pain at the emergency room. I noticed, when I looked at the list of records the doctor claimed to have reviewed in reaching his opinion, that a key record was missing --- the emergency room records. So my cross-examination of the doctor was all about a "cover up". I insinuated that the insurance company had "covered up" this ER report, that they had deliberately hidden it from the doctor. Maybe they didn't. Maybe it was an innocent mistake. But the cross-examination was brutal, and the insurance company lawyer knew it. A large personal injury settlement soon resulted.

My point: Cover-ups piss juries off!

Now back to Toyota (finally!). Congress has apparently gotten its hands on "secret" Toyota documents from a turncoat former Toyota lawyer. Apparently, these secrete documents show that Toyota's own investigators had knowledge of the sticking pedal defect yet covered it up.

A cover-up is a game-changer for a personal injury case. The main issue becomes, what did they know and when did they know it? If Toyota can show it made efforts to investigate the sticking-pedal problem, and then to resolve it, and did not drag its feet, and especially that it did not cover up its findings, it will fair much better in court. But if the jury smells a cover up, all bets are off. Toyota can expect a string of large verdicts against it, maybe with punitive damages to boot. So, Toyota, if you have "covered up", get ready to "pay up"!

Geneva, New York Accident Lawyer and Community Volunteer Explains Volunteer Liability for Negligent Supervision and Driving.

Thu, 25 Feb 2010 21:48:40 -0500

Yesterday, as I have done just about every Wednesday this winter (and for the past few winters), I took a van full of Boys & Girls Club kids to the Geneva, New York municipal ice rink for a skate. I pick them up at the Boys & Girls Club of Geneva at 6:30, we skate till 8:15, and then I drive them home. I finish up about 9:00. I can pack about 11 kids in the large van. The kids, ages 5 through about 11, love it. These are kids who otherwise would never get a chance to skate. Most of them don't have transportation to the rink. When Spring comes along, I take the same kids to the YMCA swimming pool. Otherwise, they wouldn't learn to swim.

Here's my law blog question for the day: What is my liability exposure as a volunteer? Does the law cut me any slack for being a good guy, or am I just as liable as anyone else if I accidently crash the van, or fail to properly supervise the kids, and cause them to get injured? If some of these kids and their parents were to bring a New York personal injury lawsuit against me for negligent driving or negligent supervision, what would happen to me?

I hate to admit it, but I am exposing myself to a lawsuit. The law in New York cuts me no slack at all. If I voluntarily agree to take these kids out and I negligently allow harm to befall them, their personal injury lawsuits against me will be valid. The fact that I was trying to give these kids a better life won't count for squat!

So how do I protect myself? Two ways: First, I try to be very careful. I drive carefully, and when I am with them on the ice or at the pool, I try to watch them carefully. Second, I buy lots of insurance, just in case.

Sometimes it can be scary, though. On the trip home, some of the kids can get a little rowdy. I am never 100% sure they are keeping their seat belts on. And when I drop them off at their home, I insist on watching them actually get inside there homes before I drive off because many of them live in "iffy" neighborhoods.

The scariest thing that happened was two years ago. A 6 year-old girl, named Jacqui, who had never swum before, jumped right into the deep end of the pool. She then began flailing around, going under, and taking in water. One of the life guards was able to pull her out. When she finally spit out enough water, and calmed down enough for me to talk to her, I asked her, "Jacqui, why did you jump into the deep end if you did not know how to swim"? Her answer: "But Mr. Bersani, you don't understand, I thought I DID know how to swim. I was so excited about going swimming for my first time that I had been practicing all week - IN MY MOTHER'S BED".

My resonse: "The same mother who would have sued me if you drown, Jacqui!"

Recemt New York Dangerous Roadway Lawsuit Demonstrates Principles of New York Defective Roadway Design Cases.

Tue, 23 Feb 2010 23:25:13 -0500

I recently blogged about defective roadway cases. A recent New York dangerous road lawsuit demonstrates some of the principles I talked about in that blog post.

In Popolizio v. County of Schenectady, a driver lost control of his car on the steep downgrade of a snowy County road, and slid his car straight across the road as it curved to the right, causing his car to leave the roadway and nose-dive into a steep-sided, twelve-foot wide, four-foot deep ditch. Despite the fact that the driver had lost control of his car and left the roadway, he got a $2,100,000 award after a trial for severe brain injuries he suffered when his car struck the far side of the ditch head-on.

How did he win? The injured man's New York roadway defect attorneys won the case by presenting testimony from a highway engineering expert who explained that the design of the ditch did not meet acceptable engineering standards. The expert said that constructing such a ditch right next to a right-angle curve in the road was unacceptably dangerous because any cars that left the roadway there would plunge into the ditch and hit the bank of the ditch head on. The ditch should have been built so that a car going off the roadway could traverse it, or else guardrails should have been installed to prevent motor vehicles from plunging into the ditch.

Interestingly, even though the jury found that the injured driver was at fault for having lost control of his car, it found that this mistake did not cause his injury. The jury concluded that, if a guardrail had been in place, or if the County had built something over the ditch so that a car could traverse it instead of plunging into it, the driver would not have been hurt at all. Therefore, it was solely the County's fault that the motorist was injured, even though the driver's leaving the road was his own fault.

New York dangerous roadway accident lawyers, including myself, are applauding this decision. It shows that juries are willing to hold governmental entities such as counties responsible for designing and maintaining unsafe roadways.

Recent Central New York Pedestrian Hit-and-Run Death Reminds Us that Cell Phones Not Only Cause Car Accidents, but Save Lives

Sat, 20 Feb 2010 20:14:16 -0500

The Syracuse Post-Standard reports that a Syracuse University student was driving home to Albany in the dark hours of the morning (about 4:30 a.m.) when her car slid off the Thruway and onto the median. She then apparently got out of her car and tried to cross the westbound Thruway to make her way to the onramp in Herkimera a couple of miles west. Unfortunately, a westbound hit-and-run vehicle struck and killed her as she crossed.

When I read this report, the pressing question I had was, "where was her cell phone?"

The nearly ubiquitous cell phone has caused alarm among many, including myself, because of an epidemic of cell-phone distracted driving wreaking havoc on our roadways. I have personally brought several Central New York car accident lawsuits against drivers too busy yapping on their cell phone to pay attention to traffic signals, stop signs, or cars stopped in front of them.

But this recent Central New York car accident reminds us that cell phones are both a blessing and a curse; if this student had a cell phone, would she have needed to exit her car and cross the Thruway to get help? No! She would have just called for help on her cell phone.

And don't forget that emergency responders arrive faster to accident scenes these days, and save more lives, because cell phone users are able report accidents as they happen. Remember the days when you had to run to the nearest house and ask the residents to call the police when you saw an accident?

Finally, don't forget that cell phones are handy for real-time reporting of erratic or road-rage driving..

Just like most human inventions, cell phones are both a blessing and a curse. If used properly, cell phone save lives and avoid accidents. But if used improperly, they reap misery and destruction. How will you use your cell phone?

Syracuse New York Dog Bite Lawyer Explains How to Prove a New York Dog Bite Case

Sat, 20 Feb 2010 10:43:14 -0500

Would you keep an appliance in your home if you knew these facts about it:

(1) It injures about 800,000 people a year in the USA - with one out of every 6 injuries being serious enough to require medical attention.
(2) 75% of the injuries are to the victim's face.
(3) Its victims are three times more likely to be children than adults.
(4) It is the fifth most frequent cause of emergency hospital visits for children in t he USA.
(5) The most severe injuries occur almost exclusively to children less than 10 years of age.

The answer is "YES", you would keep such a product in your home. The product is called a "dog", a/k/a "man's best friend". We humans love dogs and are willing to live with these risks because of the love, support and companionship that dogs provide. I am a dog owner myself!

But make no mistake; owning a dog is a BIG legal responsibility. If you do not act responsibly as a dog owner, you can, and should, be held accountable for injuries your dog causes. See my previous blog about dog safety tips.

Here are the basic rules for proving a New York dog bit case: In New York, a dog owner (defined as anyone who harbors a dog) is liable for dog attacks if, and only if, the dog bite victim can prove two things: (1) the dog had "vicious propensities" (i.e., a tendency to attack) and (2) the owner knew or should have known it. That's a pretty straightforward two-step process. Or is it?

The problem is proving an owner knew of the dog's vicious propensities. The best and surest way to do so is to show the dog bit someone before. If you can prove that, your case is usually a slam dunk. But sometimes you don't have a prior bite. What then?

You can show "vicious propensities" in other ways, for example, if the dog tended to growl, snap or bare its teeth at people. It also helps if you can show that the owner tended to think of his own dog as dangerous by doing one or more of the following things: tying or chaining the dog up; fencing the dog in, keeping the dog as a guard dog, putting up "beware of dog" signs, or warning people verbally that the dog was dangerous.

Any dog can bite, but statistically the most likely dogs to bite are pit bulls and Rottweilers, and when these dogs bite, they mean business; together these breeds account for about 70% of dog-bite-related deaths.

So can you prove your New York dog bite lawsuit simply by showing the dog's breed was dangerous? NO! New York courts have rejected the theory that certain dog breeds can be "assumed" in court to be more "vicious" than others. In other words, the courts reject "breeedism", and instead treat all dogs equally in court, no matter what the breed.

If you or your child has been bitten by a dog, feel free to call or contact me for more information.

OSHA'S Increased Construction Site Safety Enforcement in Syracuse and Central New York May Help Decrease Syracuse New York Falling Construction Worker Lawsuits.

Thu, 18 Feb 2010 22:03:38 -0500

I was pleased to read in the Geneva Finger Lakes Times today that a regional representative of OSHA (federal Occupational Safety and Health Administration), Jennifer Lawless, speaking at Geneva's Ramada Inn, announced that, under the Obama administration, OSHA is stepping up compliance enforcement in the Syracuse and Central New York area, especially at outdoor work sites, such as construction sites.

We at Michaels & Smolak have consistently, year after year, brought Syracuse area construction accident lawsuits where compliance with OSHA and other safety regulations would have prevented devastating fall-related injuries. We know firsthand that Construction employers in Central New York often ignore OSHA and other safety regulations.

The OSHA regulations, if followed, would help prevent many of the devastating injuries, and deaths, that result from workers falling off ladders, scaffolds, buildings, roofs and other structures. For example, just this week, OSHA fined a construction company $539,000 for a roofer's 40-foot fall to his death at a Washington, Pennsylvania construction site. According to OSHA's website, the construction company "failed to provide any fall protection to its employees working on a pitched roof 40 feet off the ground". A spokesman from OSHA said the employer "knowingly and willfully failed to protect his workers from falling to their death" and that OSHA "will not tolerate this type of blatant and egregious disregard for the health and safety of workers." The very same day, OSHA fined a Pittsburgh construction company $70,000 for failing to provide fall protection to a construction worker who fell 225 feet to his death on a construction site. The same company had already been fined in 2007 for the same violations, but apparently did not "learn its lesson".

OSHA's increased safety enforcement in Syracuse and Central New York, while welcome, is probably not enough. Unfortunately, OSHA's fines are not a significant enough deterrent for many employers. They still find it cheaper to skirt safety compliance and pay the occasional fines. What really catches the construction employers' attention, though, is not an OSHA fine, but rather a construction accident lawsuit. In New York, special construction accident laws (especially Labor Law sections 200, 240, 241[6]) help injured construction workers and their families get compensation in court for their medical expenses, lost wages, pain and suffering, and loved one's wrongful death. I have posted blogs about these New York Labor Laws before. To read prior blogs on this subject, click here, here, and here.

Michaels & Smolak will continue to do its job of bringing lawsuits on behalf of injured construction workers when construction companies fail to abide by safety regulations, and OSHA will continue to do its job of fining construction companies for such violations. Perhaps this one-two punch will one-day finally deliver the following important message to the construction industry: "Safety pays, and if you don't believe it, you will pay, and pay dearly."

Why Do I Need a Lawyer to Settle my Personal Injury Claim? Syracuse Accident Lawyer Explains.

Tue, 16 Feb 2010 19:41:32 -0500

Do you take you Syracuse or Central New York injury claim seriously? Do you want the insurance company to take it seriously, too? Well, I've got some news for you: The sure-fire way to guaranty that the insurance company will NOT take your injury seriously is to represent yourself.

You are not the only injured person the insurance company is dealing with. Other people with injuries, very similar like yours, have retained attorneys to advocate their claims with that same insurance company. All those other people seem to be taking their injury seriously. They are taking their injuries so seriously that they have hired an attorney. They are showing the insurance company that they are prepared to go to court if the insurance company does not take their injuries seriously.

True, you can talk to that insurance adjuster yourself when she calls. She might even seem nice on the phone, might promise to treat you fairly. Believe me, she won't. Not without an attorney. Why? Here's why, and try to remember it, as it is the most important part of this blog --- INSURANCE COMPANIES MAKE THEIR PROFIT BY PAYING AS LITTLE AS THEY CAN ON YOUR CLAIM.

When the adjuster, who works for a faceless money-counting company, sees that you are handling your claim yourself, without an attorney, what is going on in her head? I'll tell you what: "Oh, good, another injured guy without an attorney --- if I seem very caring and am nice to him, I can probably settle his claim for pennies on a dollar and make my boss happy".

Perhaps I have badmouthed insurance adjusters too much here. That is not my intent. Insurance adjusters can be good people. They are trying to make a living, trying to feed their families. But to keep their job, to get praised by their supervisors, to "make it" in their world, they need to settle cases on the cheap. The adjuster working on your case might even get a promotion or a raise for doing such a good job at selling you short.

Even if you and the adjuster really "hit it off", and he or she really does want to help you because of some "bond" you have developed on the phone, the adjuster has a supervisor, a claims examiner, a regional manager, and a corporate office that looks at only one thing --- the bottom line.

To an insurance company you are nothing but an injured person without an attorney, which is by far the best kind of injured person in their book.

Take your injury seriously. Show the insurance company that you take your injury seriously and want it dealt with seriously. Hire a competent personal injury lawyer. Seriously.

Syracuse Personal Injury Lawyer Explains Why "Damages Cap" Laws Are So Unfair

Sun, 14 Feb 2010 19:19:22 -0500

I can think of few laws as unfair as "damages cap" laws. For those readers unfamiliar with this concept, let me explain. A "damages-cap" law essentially says that, in a personal injury or medical malpractice lawsuit, the injured plaintiff is limited to a certain amount of compensation for his or her "non-economic" damages, no matter how devastating the injury. "Non-economic damages" essentially means compensation for pain and suffering and loss of enjoyment of life.

The unfairness of damages caps can best be shown by way of example:

Patient A undergoes neck surgery, his surgeon commits medical malpractice, he ends up with moderate but permanent pain running down both arms. Full and fair compensation for this annoying, painful sensation for a lifetime is about $500,000. Patient A goes to court, the jury awards him $500,000, and he gets it. He is fully and fairly compensated for his injury.

Patient B undergoes the same operation, the surgeon commits medical malpractice, but this time renders the patient QUADRIPLEGIC. Patient B is now nothing but a head on a pillow for the rest of his life. Patient B goes to court, the jury says he should get $3,000,000, but the judge says, "sorry, the medical malpractice damages cap law requires me to reduce this verdict to $500,000, which is the maximum allowable, no matter what the injury".

So the guy with the less serious injury gets full and fair compensation for his injury, while the guy with the devastating, catastrophic injury gets pennies-on-the-dollar for his injury. Sound fair? Of course not.

The Illinois Supreme Court doesn't think it's fair either. Just this week, in Lebron v. Gottlieb Memorial Hospital, the Court overturned the State of Illinois' landmark 2005 "Medical Malpractice Reform Law", which featured a $500,000 cap on medical malpractice pain-and-suffering damages. The Court ruled the law unconstitutional because it violated the principle of "separation of powers". In other words, the LEGISLATIVE branch of government should mind its own business and not tell the JUDICIAL branch of government how much it can award for pain and suffering in court.

This is a big win for trial lawyers and patients' rights advocates, and a black eye for tort-reformers.

I hate damages caps because I love justice. Damages caps are unfair because they disproportionately impact those who have suffered the worst injuries. Why should only the catastrophically injured "pay" for tort reform?

Several courts around the United States agree with me. They have tossed out such laws, either because they violate the separation of powers, or because they deny citizens the right to a fair jury trial, or because they violate equal protection principles.

Fortunately, New York State has never adopted damages caps, though the insurance industry has had its cronies in Albany propose such laws. Let's hope our legislature never passes such a law and, if it does, that New York courts would have the guts to strike them down as unconstitutional.