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New York Personal Injury Law Blog

Monday, June 27, 2016

Suing for Injuries Sustained while Playing Sports

Any sports can be dangerous for participants. It does not matter what the sport is, there is always the chance of injury when engaging in physical activity. The chances of injury go up significantly when the sport being played is a contact sport, like football, but injuries are a part of every sport, including baseball, soccer, and basketball. Even golfers can suffer serious injuries.

Generally, a participant in a sport assumes the risk of normal injuries during play. If a concussion or spinal injury is suffered as a result of being tackled in a game of football, he or she will be responsible for his or her own medical bills. Similarly, a basketball player cannot sue for an injury sustained when landing awkwardly after a shot. However, if an injury is caused by a condition not within the scope of a participant’s consent, the loss from that injury can be recovered. A person who consents to play basketball, for example, can sue another participant for starting a physical fight because the person who started the fight was acting improperly. Similarly, a soccer player may be able to file a claim if the injury in question was caused by shoddy conditions on the field.

Individuals wishing to take part in organized leagues will often be asked to sign documents acknowledging their willful participation in the activity. These documents may include waivers of liability. It is important to read these documents carefully. If a waiver of liability is included, participants should make sure that the field of play is well-maintained before engaging in physical activity there. These waivers are not always enforceable. Each state has its own rules about how liability waivers are treated by the courts.

In pickup games with friends, even though there is no waiver of liability signed, there is still an understanding of consent to play the game. Any incidental contact as a result of the sport cannot give rise to a lawsuit. For this reason, it is important that players  go over the extent of acceptable contact before participating.  It is also, for the reasons noted above, important to examine the field of play for any potentially dangerous conditions.


Monday, June 20, 2016

Weight Lifting Injuries at the Gym: Who Is Liable?

Working out at a gym is usually good for your health, but not always. Perhaps you lifted more weight than you could handle. Or a piece of strength training equipment malfunctioned. Or the gym staff failed to instruct or spot you properly. Can you hold the gym owners or others liable for damages?

There have been many cases in which plaintiffs have successfully sued gyms, sports clubs, Pilates studios and other exercise facilities for their injuries. Even if the gym owners were not aware of an unsafe condition, they may be liable if proper inspection would have uncovered it. Sometimes you may also be able to bring a product liability lawsuit against companies and individuals responsible for the design, manufacture, sale or distribution of a potentially dangerous exercise machine or its components.

Equipment malfunctions are not the only basis for gym liability. You may be able to sue a gym for poor instruction or supervision. If an unqualified staff member imposed excessive demands, provided improper instruction or did not warn of potential risks, the gym itself could be liable for muscle injuries or other harm.

One hurdle to overcome is the liability waiver that most gym members must sign when they join, promising not to sue if they are injured at the gym. Some courts have upheld these waivers, but there are also occasions when lawsuits are allowed to proceed despite a signed waiver.

• Gross negligence. Short of intentional harm, "gross negligence" is a form of reckless disregard for safety. For example, if gym employees were informed repeatedly that a piece of weight lifting equipment was not working properly and continued to allow people to use it without fixing it, that might constitute gross negligence.

• Vagueness. If the language in a liability waiver is so ambiguous that no one could reasonably be expected to make sense of it, a court may disregard it. Most well-established gyms use carefully vetted forms, however.

If you are injured, you should immediately report the incident to the gym and ask for a copy of any report prepared by the gym staff. You can show that document, along with any photographs you may have of any equipment involved, to a lawyer. Contacting an experienced personal injury attorney can help you decide if you have a case to pursue.


Monday, June 6, 2016

Auto Recalls and the Dangers They Seek to Avoid

Automakers recall millions of vehicles every year. A recall seeks to reach out to consumers to return faulty products, mistakenly put in the marketplace, for repair. In 2014, more than 60 million vehicles were recalled, nearly doubling the previous record set in 2004. These automobiles all had some sort of defect. Some of the defects, while annoying, were not of serious concern, such as a faulty air conditioners, while others resulted in significant safety issues, like problems with the ignition switches, brakes, or steering. Honda issued a recall of 14 million vehicles because its airbags might shoot sharp pieces of metal into the car when deploying.

Of the 60 million cars that were recalled in 2014, less than half were actually repaired. Consumers may not be aware of the recall. Cars change hands several times, and dealers have trouble reaching out to everyone who might have the car. Several major car manufacturers have been caught purposely misleading regulators and consumers about recalls to save money. Toyota recently paid a $1.2 billion fine for this improper action. Even when everyone is aware that a recall has been issued, a consumer may not prioritize it. When consumers are able to bring their automobiles in for the recall, the part necessary for the repair may be unavailable, especially on older model cars that are no longer in production.

This leaves millions of automobiles on the road every year that may pose significant safety issues. Wiring issues can increase the risk of car fires. Vehicle components could break resulting in loss of control of the vehicle. Seat belts might be defective. Windshield wipers might not work properly. All of these problems make the roads less safe for drivers of these vehicles and everyone else on the road.

If a consumer is injured as a result of an issue caused by an automobile defect, he or she may have a substantial claim against the auto manufacturer. If the defect has caused a collision, the car company may be responsible for all injuries. A consultation with an experienced attorney is necessary to determine whether or not a claim is viable in a particular situation. 

 


Monday, May 30, 2016

Dangerous Medications & Class Action Suits

The Food and Drug Administration (FDA) reviews, and approves, many drugs and medical devices to ensure that they are safe for consumers before they can be sold. Still, a lot remains unknown when a drug or device first enters the market. Unfortunately, some drugs and devices end up causing injury to the people that they are prescribed to treat. When many people are harmed by the same prescription drug or medical device, a class action lawsuit is typically filed in order to efficiently compensate all of the injured plaintiffs.

If you saw a television advertisement alerting you to a lawsuit over a drug or device you or a loved one used, you have good reason to be concerned, but you should not panic. An experienced attorney can guide you in determining whether you qualify for compensation and what steps to take next. There is often no cost to you because the drug or device company at fault typically has to pay all the costs associated with the injuries it caused.

The longer a drug or device is on the market, the more we learn about its side effects, so it is important to keep records about the medications and medical devices you and your loved ones have used. You never know when additional information will uncover previously unknown dangers, so paying attention to warnings about drug and medical device class actions is important. If you can recognize early on that you or a relative may be at risk, you could potentially save your life or that of a loved one, and ensure that you receive the compensation you are due for the risk you have been subjected to.

If you think you have been harmed by a dangerous medication or device, contact an experienced personal injury attorney who can advise you about participation in class actions related to drugs and medical devices.


Monday, May 16, 2016

When Is My Hot Beverage Too Hot?

A lawsuit over an excessively hot beverage made headlines two decades ago. A 79-year-old woman spilled a cup of McDonald's coffee in her lap and suffered third degree burns. A jury awarded her millions in damages; since then, almost every major chain that serves coffee has been a defendant in a similar suit.

In the McDonald's case, the coffee was brewed at 195 to 200 degrees Fahrenheit and then maintained at 180 to 190 degrees. This was consistent with the range recommended by the National Council of Chain Restaurants, but hotter than the temperatures some burn experts considered safe. The plaintiffs' attorneys argued that the high temperature was "unreasonably dangerous" and "inherently defective."

McDonald's currently serves coffee at 176 to 194 degrees. For approximately a decade, Starbucks has been selling coffee at 175 to 185 degrees. According to the Specialty Coffee Association of America, the standard serving temperature is 160 to 185 degrees. For a number of practical reasons, companies brew coffee and tea at temperatures that exceed the burn thresholds of skin, and beverage spills continue to send people to the hospital with scalding injuries.

Much of the coffee served today is as hot or hotter than the coffee that led to the 1994 McDonald's lawsuit. Instead of lowering temperatures, companies place strongly worded warnings on their coffee cups. They also have worked harder to present expert witness testimony regarding their reasons for serving the coffee at high temperatures.

In a 1998 case, Bunn-O-Matic, a manufacturer of coffeemakers, won a suit against it when the Seventh Circuit Court of Appeals unanimously held that 179 degrees was not "unreasonably dangerous.” New cases are continually filed, some involving hot chocolate and hot cider, with both the reasonableness of temperatures and the adequacy of warnings still points of contention.

If you have been burned by a hot beverage, contact an experienced personal injury attorney to advise you about whether you have a viable case.


Monday, May 9, 2016

Injured at Daycare

Over the past few decades, the number of women entering the workforce has increased dramatically.  With both parents working outside of the home, more children are being cared for at local daycare centers starting at a young age. When parents send their children off to daycare, they expect them to be kept safe and engaged. Unfortunately, this isn’t always the case; each year, thousands of children are injured at daycare facilities across the country. If your child has been injured under the supervision of a child care provider, you may be wondering what steps you should take after the accident.

Following any injury, medical treatment should be your first and foremost concern. Be sure to keep an account of all doctors’ appointments, medications, procedures, and medical records.  You should also keep a log of complaints of pain from your child and retain the results of any tests performed. If there are visible injuries or if the unsafe condition which led to the injury can be seen, be sure to take photos.

The daycare center may have an accident report procedure that you must follow. This will generally consist of a number of forms; be sure to complete these in their entirety and follow the submission guidelines. Following the injury, you should also consult a personal injury attorney to ensure you protect and preserve your rights under the law.  A personal injury attorney can help you to establish that the childcare provider failed to exercise due care to prevent injury to your child. This will require the attorney to assess the circumstance leading up to the injury and how it could have been prevented with proper precautions. All too often, injuries are caused by a lack of supervision or a poorly maintained facility.

An experienced injury attorney can help you file a claim with the facility’s insurance carrier and review any settlement agreements to ensure you are getting the full compensation that you deserve. If the settlement offers are not adequate, your attorney may advise you to proceed with a lawsuit against the negligent care center.

Our law firm will work diligently to ensure your child receives the treatment he or she needs to make a full recovery in addition to helping you obtain the financial means you need to support your child for years to come. 


Monday, April 25, 2016

Who is responsible for injuries caused by animals?

While laws concerning responsibilities for injuries caused by animals vary from state to state, there are some consistencies. Most of the time, the owner of an animal can be considered liable for his or her animal's dangerous behavior. Therefore, once medical attention has been sought, if the victim is contemplating legal action, the name and contact information of the animal's owner should be obtained. If the injured party doesn't know the owner's name, the information can often be uncovered by quizzing neighbors or witnesses, and this data should be provided to a personal injury attorney.  

States Differ Regarding "Strict Liability" for Injuries Caused by Animals 

While in some states "strict liability" applies, meaning the owner of the animal is responsible for the animal's behavior whether or not the owner was negligent, in other states the owner is only held liable if he/she was aware of the animal's "dangerous propensities." This awareness is often difficult to assess, for example, is the size or breed of the animal enough to create a presumption of danger, even if the particular animal has always been well-behaved?

"Contributory Negligence" as Cause of Animal Injuries

Another factor to consider in cases of injuries caused by animals is whether the person injured played some part in the event.  A person who ignores a "Beware of Dog" sign, for example, or who climbs into a fenced yard where an animal is contained, is considered to have assumed a certain amount of risk. It is still the owner, however, who bears the burden of convincing the jury of such arguments.

 Animal owners can also defend themselves and their pets if the "victim" teased or threatened the animal before the attack took place. 

Other Parties Who May Be Held Responsible for Animal Injuries

 In certain situations, it is not the owner who is held accountable for the injury inflicted by the animal. This may occur in the following cases:

  1. When an animal keeper or sitter is responsible for the care of the animal, such as in a kennel, a pound, or when the owner is not at home, that person may be held responsible for the inflicted injury.
  2. When a person under the age of 18 years is the owner of the animal, the parents or guardians of the minor may be held responsible.
  3. When a property owner has allowed the animal onto his/her property, that property owner may be accountable for the behavior of the visiting animal.
  4. If the landlord of an apartment knew, or should have known, that a tenant possessed a dangerous animal, it is possible that the landlord may be held liable.

What Damages Can Be Recovered After an Injury Caused by an Animal?

The damages the victim of an animal injury is entitled to vary according the severity and circumstances of the injury, and may include:

  • Medical expenses
  • Lost wages
  • Pain and suffering
  • Property damage

There are even cases in which punitive damages will be awarded when an animal injury has taken place. This occurs when the owner, fully cognizant of the danger of the animal, allows it to run free or to be in contact with someone who is then attacked. Punitive damages are awarded not only to punish the owner and provide compensation to the victim, but to deter the defendant and others from engaging in similarly dangerous conduct.

 


Monday, April 18, 2016

NFL Concussion Suit Sheds New Light on the Inherent Risk of Workplace Injuries

If you’re like most individuals, you perform hundreds of activities each day at home and in the workplace. In some instances, these regular activities that you might have believed to be harmless end up hurting you many years down the road. When those activities were work-related, the fact that they were “just part of the job” doesn’t mean your employer is off the hook if you need medical attention.

A good example of this is the NFL concussion lawsuit. In the NFL, there is an inherent risk that a player will be injured when he steps on the field. This risk is obvious and by playing football, the players have assumed this inherent risk. The doctrine of assumption of risk, in addition to the the Collective Bargaining Agreement (CBA) the league enters into with the NFL Players Association, prevents players from filing suit when they suffer an on-the-field injury.

What the players (and the teams, owners, and league) claim not to have known, or perhaps knew but did not want to acknowledge, is that every-day injuries, particularly head injuries, can have serious long-term impacts on the players. The NFL is now being sued by past players who think that the league was negligent for not protecting them from long-term injuries or at least warning them about the risk of long-term injuries.

How this translates into the non-football world is still a bit unclear since the NFL suit is rather unique, but it is something employees who have assumed the risk of day-to-day injuries should keep in the back of their minds. If years down the road the cumulative impacts of those small, every-day injuries start to add up to something major, it may be time to investigate whether the employer failed to properly protect or adequately warn employees of the long-term dangers they faced.


Monday, April 11, 2016

What is a class action lawsuit?

Normally when a person suffers an injury as a result of another person’s mistake or wrong doing, that injured party has the right to file a lawsuit.  Sometimes, an injured party has a right to join a lawsuit that involves a large group of people.  These types of lawsuits are commonly referred to as class action lawsuits.  In these cases, the party who filed a lawsuit must be able to adequately represent the interests of all those who were also allegedly injured by the actions of the defendant.

A court must certify a class action lawsuit.  In order to be certified as a class, two main criteria must be met.  First, all the questions of law or fact in dispute must be common to all plaintiffs in the class.  That means that if a case requires that a plaintiff prove facts specific to his or her own case, it should not be included in the class.  Second, the number of plaintiffs must be large enough to make it impractical to try each case individually.  That number varies and will be decided on a case-by-case basis. 

The point of the class action is to maintain judicial efficiency.  The court system would be bogged down if every single person who purchased a drink with an improper label filed a separate lawsuit claiming unfair business practices.  The legal costs to the defendant would be obscene.  The logistics of bringing the same witnesses to court to testify over and over again would be impossible to deal with.  Class action lawsuits also serve to hold companies accountable for small mistakes that affect many people.  A company that practices deceptive advertising may only trick each consumer out of the price of one of their goods, hardly worth a lawsuit, but when hundreds of consumers band together to enforce their rights, justice is better served.

Once a group of individuals files a lawsuit against a defendant for an alleged wrongdoing, they are responsible to seek out other people who might have been affected and offer them an opportunity to join the class.  Each individual can choose whether to join the class and accept the settlement presented to the entire class, or to preserve his or her own right to file his or her own lawsuit.  Common class action lawsuits include suits resulting from an environmental disaster such as an oil spill, prescription drugs with unforeseen side effects, defective products, misleading advertising, price fixing and price gouging, securities fraud and employment discrimination suits.


Monday, March 28, 2016

Why do I need a fence if I have a pool?

A person who has a pool, trampoline, swing set, or other similar structure in their yard is usually required, by their homeowner’s insurance, if not by law, to also have a fence. This is because these structures are seen by the law as attractive nuisances. This means that a child who sees a such structures, and who may not appreciate the danger they present, is likely to trespass on the property to play in, on, or with them and injure him or herself. The doctrine of attractive nuisance puts an obligation on a homeowner to protect these children who are incapable of protecting themselves. 

The law does not limit liability to instances where the attractive nuisance is a pool or another type of recreational device. Children’s imaginations are vivid enough to turn any sort of dangerous structure or equipment into a playground. Piles of loose lumber and abandoned cars have been found by courts to qualify as attractive nuisances. An attractive nuisance must: 

  • Be an artificial hazard in a place where children are likely to trespass
  • Create unreasonable risk of harm to children incapable of understanding that risk
  • Be a greater risk to potential victims than the utility of the hazard and the burden of its maintenance 

Determining when a child is innocent enough to qualify for protection under the attractive nuisance doctrine is also unclear. A person with diminished mental capacity may be considered a child for these purposes even if he or she is over the age of 18. The determination of who qualifies as a child is made on a case by case basis. 

Using a fence is a good way to make sure that a child passing by is not intrigued by a potentially dangerous condition. Even if the child is able to see over the fence, he or she will have trouble climbing over it, sufficiently discouraging the trespass in order to avoid liability for injuries sustained. A sign warning individuals of danger may be enough to protect a homeowner from liability, except when a child is unable to read the sign. Regularly inspecting property for potentially dangerous conditions and making sure trespassers stay away from your property are the best ways to avoid liability under the attractive nuisance doctrine.


Monday, March 21, 2016

What is strict liability?

In personal injury law, strict liability refers to certain types of cases in which the injured party does not need to show intentional action, negligence, fault, or even awareness in order to collect an award. This significantly lowers the burden of proof for the plaintiff. The plaintiff only needs to prove an interaction with the defendant, and that an injury resulted; however, the rules as to when strict liability applies are limited to specific situations. When a person engages in any abnormally dangerous activity, there is always a risk of injury. Any injuries that occur when engaged in these activities are strictly the responsibility of the person conducting them, even if that person takes every reasonable safety precaution to avoid injuries. Examples of abnormally dangerous activities include storage of explosives, transportation of flammable or hazardous materials, or anything that emits toxic fumes.

 

When a company produces a defective product that injures a customer, it is strictly liable for the defect. There are different types of defects such as a flaw in the design of the product itself or a manufacturing defect for that specific item. The defect might also be a failure to warn consumers of a potentially dangerous condition. Any predictable use of a product must be anticipated.

 

The most common type of strict liability cases involve dog bites. Thirty five states and the District of Columbia have statutes making injuries caused by animals the strict responsibility of that animal’s owner. While these  statutes are not  uniform,  all of them impose some level of liability for dog bites. Some statutes impose strict liability for dogs outside of their enclosures or off a leash. In other cases, a possible defense is that the injured party provoked the attack. In some states, strict liability only applies if the dog has a history of aggressive behavior. A sign warning of the dog’s dangerous propensity might be enough to protect a dog owner from liability. If the injured person was trespassing, he or she might not be able to collect.


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