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A Barricade to Liability

Q: My wife was riding her bicycle on the parking lane of a street Unfortunately, a construction barricade had fallen over. Although my wife attempted to turn her bicycle to avoid the barricade, she lost control and collided with a passing vehicle. That’s what the witnesses tell me.

Q: My wife was riding her bicycle on the parking lane of a street.  Unfortunately, a construction barricade had fallen over.  Although my wife attempted to turn her bicycle to avoid the barricade, she lost control and collided with a passing vehicle.  That’s what the witnesses tell me.

A: Most likely, you will sue the owner of the property that was under construction, the general contractor for the construction project, and at least one subcontractor. The defendants will make such arguments as: (1) we owed no duty of care to your wife because the accident occurred in a street, and not on our property; (2) we did not create or have notice of the fallen barricade; and (3) the accident was caused by your wife’s negligent operation of her bicycle, and not by the fallen barricade.

With regard to the first of these arguments, your lawyer will want to know whether the owner, or the general contractor, had a permit to use a portion of the street to store construction material.  If so, that alone is a powerful indication that the defendants had a duty to maintain the parking lane in a reasonably safe condition.

With regard to the second argument, your lawyer will need to gather all the evidence – by means of depositions, document requests and other discovery devices, and other resources such as the internet.  With regard to the third, it is the defendants who will be searching for evidence.

The elements of negligence are a duty owed to you, a breach of that duty, and injury proximately resulting from that breach.  This sounds like a winning case in all three respects.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Break in the Sidewalk

Q: While walking on a private sidewalk with my granddaughter, I tripped and fell at a two-inch height discrepancy between two concrete slabs.

Q: While walking on a private sidewalk with my granddaughter, I tripped and fell at a two-inch height discrepancy between two concrete slabs.

A: The owner is likely to make two somewhat inconsistent contentions: (1) that two inches are too ‘trivial’ to have been the cause of your accident and (2) that the condition was ‘open and obvious’.  Either way, the owner will be saying that you are a victim of your own inattentiveness.

Generally, the issue of whether a dangerous or defective condition exists on real property depends on the particular facts of each case, and is properly a question of fact for the trier of fact.  However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip.

In determining whether a defective condition is trivial as a matter of law, a court must examine the facts presented, including the width, depth, elevation, irregularity, and appearance of the condition, along with the time, place, and circumstances of the injury.  There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to bring suit.

Similarly, the issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for the jury.  Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances.  A condition that is ordinarily apparent to a person making reasonable use of her senses may be rendered a trap for the unwary where the condition was obscured or you were distracted.  This sounds like a case well worth taking.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2010-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Building Near the Sidewalk

Q: Last fall, as I was walking home from the grocery store, one of the wheels of my shopping cart went into a hole in the sidewalk, causing the cart to flip over.  I fell to the ground, and the cart fell on top of me.

Q: Last fall, as I was walking home from the grocery store, one of the wheels of my shopping cart went into a hole in the sidewalk, causing the cart to flip over.  I fell to the ground, and the cart fell on top of me.

The part of the sidewalk where I fell does not directly touch a building.  Rather, it lies alongside an unpaved grassy area.  Although under the ownership of the City, no separate tax lot is assigned to this area, and it has never been designated as a park.

A: In New York City, by statute, tort liability for a defective sidewalk is imposed upon the abutting property owner, rather than upon the City.  The owner of real property abutting a sidewalk must maintain the sidewalk in a reasonably safe condition – installing, constructing, reconstructing, repaving, repairing or replacing defective sidewalk flags.  The owner is liable for personal injury proximately caused by its failure to maintain the sidewalk in a reasonably safe condition. 

By statute, a sidewalk is defined as that portion of a street between the curb lines and the adjacent property lines, but not including the curb, intended for the use of pedestrians.  As long as your accident took place between the curb line and the adjacent property line of the defendant's building, the defendant is exposed to liability.

The question is whether that unpaved area of grass, between the location of your accident and the defendant’s abutting property, immunizes the defendant from being liable.  Most likely it does not.  Your attorney will content that, although the part of the paved sidewalk where you fell does not actually touch the defendant’s property line, it is part of a larger sidewalk area that, when fairly viewed, abuts the defendant’s property for purposes of ascribing liability under the statute.  To absolve the defendant of liability here would produce a result that the Legislature never intended.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Cool Pool

Q: My friend owned a house with an in-ground rectangular-shaped swimming pool. In the deep end, the walls below the water line were not vertical. Rather, they slanted inward toward the center of the bottom. Although the pool did not have a diving board, there were no signs warning that diving was prohibited. From the side, I dove in. On the slanted portion of the deep end wall, I struck my head.

Q: My friend owned a house with an in-ground rectangular-shaped swimming pool. In the deep end, the walls below the water line were not vertical. Rather, they slanted inward toward the center of the bottom. There was no marking to show that the walls slanted. Although the pool did not have a diving board, there were no signs warning that diving was prohibited. I had never swum there before, was not familiar with the pool, and had not noticed the slant of the deep-end wall. From the side, I dove in. On the slanted portion of the deep end wall, I struck my head.

A: The owner of a private residential swimming pool has a duty to maintain the pool in a reasonably safe condition. A landowner also has the duty to warn of potentially dangerous conditions that are not readily observable.

Your attorney will contend that the slanted walls were dangerous and that your friend had notice (a) that the walls slanted inward toward the center and (b) that the depth was not marked. Your friend’s attorney may well respond that (a) he lacked notice that the pool was unsafe for diving, (b) the accident was caused by an error in your judgment, and (c) you assumed the risk of injury.

So long as the accident happened some time after construction of the pool was completed, it should be relatively easy for you to establish that your friend indeed had (a) notice of the condition and (b) sufficient time to remedy it. It does not sound like your conduct was the sole proximate cause of your injuries. As for the doctrine of ‘primary assumption of risk’, it applies only to a commonly-appreciated risk that is inherent in, and arises out of, the recreational activity in which you were engaged. Your attorney will note that slanted walls are neither inherent nor common.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Defective Tool

Q: At work, I needed to pressure-test an enormous old pipe (42 inches in diameter) for leaks.  The testing gadget appeared somewhat worn and used, but normal enough. I crawled four feet into the pipe and inflated the device, ever so slightly.

Q: At work, I needed to pressure-test an enormous old pipe (42 inches in diameter) for leaks.  The testing gadget appeared somewhat worn and used, but normal enough.  I crawled four feet into the pipe and inflated the device, ever so slightly.

On the tool, I noticed several air bubbles.  This suggested a leak.  I called over my supervisor.  But – too late – as soon as she stepped over, boom!  The gadget exploded without warning and propelled me high into the air.  Can I sue the property owner?  What about the general contractor?

A: For a worker to recover in negligence, she must generally fit her case into one of two categories.  (1) Injury as a result of something that was dangerous about the work site itself.  (2) Injury because of the manner in which the work was performed.  Your attorney will need to determine the strength of your case in each of these categories.

Suppose that the old pipe itself was dangerous.  When a claim arises out of such a condition, the property owner or general contractor may be exposed to liability if it either (1) created the dangerous condition causing an injury or (2) failed to remedy the dangerous condition upon having actual or constructive notice of it.

Suppose that the testing instrument was defective.  To recover for common-law negligence (or a violation of Labor Law § 200), you must show that the defendant had the authority to supervise or control the performance of the work.  Often, a savvy owner is careful to make sure in advance that it will not have that authority.  On the other hand, a GC’s role might necessitate that it possess that authority.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Hot Freezer

Q: Three weeks ago, I bought a new refrigerator.  Yesterday, a fire broke out in my kitchen.  The Fire Department prepared a report.  It said the origin was ‘refrigerator/freezer’.  Says the report, “High concentration of charring and damage in and around the freezer unit.”

Q: Three weeks ago, I bought a new refrigerator.  Yesterday, a fire broke out in my kitchen.  The Fire Department prepared a report.  It said the origin was ‘refrigerator/freezer’.  Says the report, “High concentration of charring and damage in and around the freezer unit.”

I think the defrost timer went wrong.  The coils got hot.  They melted the insulation.  Does the jury have to agree that the defrost timer was bad, or does it just have to decide that the source was the freezer?

A: Even though you may want to prove a defect in the defrost timer, there is also evidence that the fire originated in the refrigerator/freezer in general.  A jury can rationally conclude that this appliance was not fit for its intended purpose, regardless of whether the defrost timer was defective.  Thus, the manufacturer breached its ‘implied warranty of merchantability’.

For a breach of warranty of merchantability claim, to support a verdict, the jury need only find that the product was not fit for the ordinary purposes for which such goods are used.  Such a verdict is acceptable solely on circumstantial evidence.  If the evidence of a specific flaw falls short, then a product defect can be proved by circumstantial evidence.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2010-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Meaningful Opportunity

Q: My parents were addicted to crack cocaine, and their drug use persisted in my early years.  I was diagnosed with attention-deficit-hyperactivity disorder in elementary school.  I began drinking alcohol and using tobacco at age 9 and had smoked marijuana by age 13.  When I was 16, in another state, my friends and I attempted to commit armed robbery.

Q: My parents were addicted to crack cocaine, and their drug use persisted in my early years.  I was diagnosed with attention-deficit-hyperactivity disorder in elementary school.  I began drinking alcohol and using tobacco at age 9 and had smoked marijuana by age 13.  When I was 16, in another state, my friends and I attempted to commit armed robbery.

Some time later, a court there found that I had violated the terms of my probation by possessing a firearm, committing more crimes and associating with persons engaged in criminal activity.  That court revoked my probation and held a sentencing hearing.  Under state law, the minimum sentence I could receive (absent a downward departure by the judge) was five years' imprisonment.  A pre-sentence report prepared by the the state Department of Corrections recommended that I receive an even lower sentence – at most, four years' imprisonment.

The judge sentenced me to life in prison.  Because that state has abolished its parole system, the life sentence leaves me with no possibility of release except executive clemency.

A: For a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime is considered to be cruel-and-unusual punishment, forbidden by the Constitution.  Although surely you ought to be separated from society for some time in order to prevent an escalating pattern of criminal conduct, the law says that it does not follow that you will be a risk to society for the rest of your life.

Even if the State's judgment that you are incorrigible is later corroborated by prison misbehavior or failure to mature, the law calls the sentence disproportionate because that judgment has been made at the outset.

But remember: the state is not required to guarantee eventual freedom to you.  All the State must do is give you some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.  If, in fact, you turn out to be irredeemable, the Eighth Amendment does not foreclose the possibility of keeping you behind bars for life.  It merely forbid a state from making the judgment that you never will be fit to reenter society at the outset.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Pipe in the Dark

Q: While doing fire-protection work at a construction site, I slipped and fell over piece of sprinkler pipe.  The piece was residual waste from my work.  I had placed this pipe in a disposal bucket, but the spackling people had knocked it over.  In the area where I fell, the light bulb had burnt out.  Before the accident, I had complained to the construction manager about this light bulb.

Q: While doing fire-protection work at a construction site, I slipped and fell over piece of sprinkler pipe.  The piece was residual waste from my work.  I had placed this pipe in a disposal bucket, but the spackling people had knocked it over.  In the area where I fell, the light bulb had burnt out.  Before the accident, I had complained to the construction manager about this light bulb.

There were all sorts of subcontractors – including an electrician, a drywall company and my employer.  The drywaller had sub-subcontracted-out all of its work and furnished no employees of its own.  The drywaller's presence was limited to one-hour visits by its president once every other week.

A: Apparently, the construction manager had notice of a dangerous condition that contributed to your accident, and employees of the spackling sub-subcontractor created a condition giving rise to your injuries.  Accordingly, these defendants are vulnerable to a common-law negligence claim.

Apparently, inadequate illumination contributed to this accident.  Accordingly, the electrician, as the subcontractor responsible for electrical work and lighting, is exposed to liability under both common-law negligence and section 241(6) of the Labor Law.

As for the drywaller, it stands in the shoes of the owner and general contractor.  None of the three may be held liable under common-law negligence – in the absence of evidence that the defendant actually created the dangerous condition or had actual or constructive notice of it.  In addition, none of the three is vicariously liable for the common-law negligence of a downstream subcontractor.

However, assuming that the drywaller possessed the authority to supervise all drywall work, and given that employees of the drywaller's spackling sub-subcontractor had caused the pipe segment to be on the floor, the drywaller is indeed subject to liability under section 241(6).

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Police Officer’s Advantage

Q: As I drove my patrol car on the Thruway, on duty, it struck the tire rim of a vehicle.  The rim had been torn off during an accident and was lying in the lane.

Q: As I drove my patrol car on the Thruway, on duty, it struck the tire rim of a vehicle.  The rim had been torn off during an accident and was lying in the lane.

A: Under the emergency doctrine, when a driver or other person is faced with a sudden and unexpected circumstance – leaving little or no time for thought, deliberation or consideration, or causing the driver reasonably to be so disturbed that the driver must make a speedy decision without weighing alternative courses of conduct – the driver is not negligent if her actions are reasonable and prudent in the emergency context.

Accordingly, it is difficult to hold this driver responsible for the actions she took after her emergency situation arose.  Rather, your best legal position is that the defendant, due to something like excessive speed or inattention, either drove her car off the road or failed to see debris in the road that she should have seen

Because you were a police officer on duty, you can proceed under General Municipal Law § 205-e rather than under general principles of common-law negligence.  The disadvantage of section 205-e is that you must identify a specific governmental statute or ordinance with which the defendant failed to comply.  Mere ‘failure to use due care’ will not suffice.

The advantage of section 205-e is that you need not prove that your own accident was “proximately caused” by the driver’s violation.  The statute requires only that a police officer’s own accident “occurs directly or indirectly as a result” of the violation.  The courts deem this a degree of connection that is easier for you to meet than proximate cause.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Proper Lookout

Q: I was heading toward an intersection. On the other street, so was a van. Although we had no stop sign, he did. The next thing I remember is waking up in the hospital.

Q: I was heading toward an intersection. On the other street, so was a van. Although we had no stop sign, he did. The next thing I remember is waking up in the hospital.

A: Presumably, you will argue that the van driver violated Vehicle and Traffic Law § 1142(a) in that he failed to yield the right-of-way – by driving through the stop sign. You were entitled to assume that the van driver would obey the law requiring him to yield. However, you also had an obligation to keep a proper lookout and see what could be seen through the reasonable use of your senses. If you failed to do that, you too may be found, at least partially, at fault.

One issue is the distance of each vehicle from the intersection when its driver first saw, or should have seen, the other vehicle. Another is the rate of each vehicle's speed. There are many ways to estimate that speed, such as the distance traveled after impact. In general, although not necessarily, the shorter the distance, the slower was the speed.

If you were speeding, then the van driver is likely to argue that he did not realize you were – and was justified in thinking that you would not reach the intersection before he passed through it. If music was blaring in your car even after the accident, or there is evidence that you were on your cellphone, the van driver will have even more to say.

At the outset, your attorney will want to see the police accident report. Perhaps it contains the van driver's admission that he had failed to stop, before proceeding. Perhaps there is testimony from a police officer that he asked the van driver to pull over, and then observed that the driver had bloodshot and watery eyes, slurred speech, and a flushed face.

As you see, often, section 1142(a) can be just a starting point in understanding a case like yours, and far from the only circumstance to be considered.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Secret Policy

Q: My special-needs bus would never enter the school yard.  Instead, it would stop on the street, and an employee of the bus company would make sure I got inside.  One day, the employee was absent.  I was left unattended in the traveling bus, for over six hours.  Everyone agrees that the bus company is liable for this.  What about the school?

Q: My special-needs bus would never enter the school yard.  Instead, it would stop on the street, and an employee of the bus company would make sure I got inside.  One day, the employee was absent.  I was left unattended in the traveling bus, for over six hours.  Everyone agrees that the bus company is liable for this.  What about the school?

A: Traditionally, it has been the responsibility of the bus company, not the school, to check to see that all of the children have exited the bus.  A school’s duty to its students is dependent on its physical custody of those students, and you never passed into that physical custody.

However, suppose that, before this incident, the school had promulgated a policy, and implemented a practice, of ascertaining the whereabouts of any child who is absent from class.  By virtue of this, your attorney might be able to contend that the school had assumed a duty to ensure the safe arrival of its students.

On the other hand, in order for the school to be negligent in the performance of any such assumed duty, the bus company or your parents must have known of, and relied upon, the school’s performance.  You or the company must have tailored your own conduct in reliance upon the school’s hypothetical policy of checking.

I would imagine that, even if the school had such a policy, the school had declined to publicize it – and cannot possibly have relied on upon a policy that was secret.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878

A Shocking Experience

Q: Last summer, I was working as a culinary supervisor for a food-service contractor.  We were in the kitchen area of a recently constructed building.  When I attempted to plug my cell phone charger into an outlet, I sustained a severe electrical shock.

Q: Last summer, I was working as a culinary supervisor for a food-service contractor.  We were in the kitchen area of a recently constructed building.  When I attempted to plug my cell phone charger into an outlet, I sustained a severe electrical shock.

A: Liability can be imposed upon a landowner or a lessee who creates a defective condition on the property, or has actual or constructive notice of this condition.  It can also be imposed upon a contractor who creates or has notice of the condition.

Suppose that the electrical contractor had failed to install ground fault circuit interrupters (“GFCIs”) in the kitchen area.  This can happen even for a seasoned electrical contractor, not totally above cutting corners – for example, if it was rushing to meet a deadline for the opening of this building.  Your attorney will argue that the contractor’s failure amounted to negligence and that this failure created the hazardous condition that caused your injuries.

In cases involving electricity, one generally wants the affidavit of an expert.  Even if your expert does not personally inspect the premises, so long as he or she has consulted the affidavits of your witnesses and photographs, the affidavit may well be acceptable.

Moreover, an affidavit from a witness that he had never observed GFCIs in the kitchen area is not incompetent merely because the witness is not an electrician – especially if the witness has been familiar with GFCIs in the past.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878