Q: Early one winter morning, while walking in the parking lot of a store, I slipped and fell on frozen snow and ice.

A: At first, your attorney is likely to be preoccupied by the following two questions.  (1) Was snow still falling?   (2) If not, how long before your accident had snow ceased to fall?  The reason is that, under the so-called ‘storm in progress rule’, a property owner is usually not held liable unless enough time had passed, after the storm had stopped, to permit remediation of its hazards.  The rule is designed to relieve the owner of any obligation to shovel snow while continuing precipitation or high winds are simply re-covering the area as fast as it is cleaned, thus rendering the effort fruitless.

All the same, if a storm is ongoing, and the owner elects to remove snow, the owner must do so with reasonable care.  Otherwise, the owner could be held liable for creating or exacerbating the natural hazard created by the storm.

To understand whether the storm was ongoing, and when it had ceased, your attorney will be happy to get your recollection.  But he or she has other resources, too.  The National Oceanic and Atmospheric Administration and other entities collect a wealth of weather information.  At airports, at Central Park, and from helicopters, snow and other precipitation is measured, and the temperature is taken – often every hour.

On the other hand, there is no substitute for your own photographs, taken of the scene of your slip and fall, as soon as reasonably possible after it occurred.  For an accident victim, the first priority is always prompt medical attention.  In terms of helping the lawsuit, photographs can often be a second priority.

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

Q: At an intersection, proceeding through a yield sign, a westbound vehicle collided with mine, which was northbound and not governed by a traffic-control device.  Neither of us intended to turn at the intersection.  When I had almost cleared the intersection, the westbound vehicle struck my right rear, causing my vehicle to roll over.  For each of us, the view of the street from which the other driver was approaching was somewhat obstructed by hedges.  I want to sue the town.

A: No town is an insurer of the safety of its roads.  It cannot be that the absence of a stop sign or traffic signal rendered the westbound driver unaware of the need to stop.  The yield sign gave the westbound driver all the warning – all the notice of danger – that a stop sign would have afforded.  The westbound driver should have seen the yield sign and should have been aware that his view of northbound traffic was obstructed.  His failure to stop, not the type of sign, was the proximate cause.

Most likely, the town has a code provision providing that no obstructions to vision, including landscaping, shall be erected or maintained in proximity to an intersection.  With one exception, our law is that the town is not liable to you for failure to enforce such a statute or regulation.  The exception is where the town has voluntarily assumed a special relationship with you beyond the duty that is owed to the public generally.

A ‘special relationship’ requires the presence of four elements: (1) an assumption by the town of an affirmative duty to act on behalf of you; (2) knowledge on the part of the town's agents that inaction can lead to harm; (3) some direct contact between the town's agents and you; and (4) your justifiable reliance on the town's affirmative undertaking.  An example might exist if the town had directed you to travel on this route.  From what you have said, there was no special relationship.

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

Q: Our club requires that members sign a lengthy ‘Statement of Faith’ and refrain from certain activity outside of marriage.   We exclude students who hold religious convictions different from those in the Statement.

Meanwhile, our school sponsors a program of registered student organizations (RSOs).  Most of the funds come from a required annual student activity fee.  The school has denied registration to our club – saying that a RSO must allow any student to participate, regardless of status or beliefs.

Sure enough, when we attempted to set up an advice table on a campus patio, and then to reserve a room on campus for a guest speaker, we got a perpetual run-around.

A: One assumes that the school is trying to implement a policy of not tolerating discrimination on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation – or even viewpoint in general.

Seemingly, a rule against viewpoint discrimination can backfire – e.g., when a religious group is not permitted to express its viewpoint by limiting membership to students who share that viewpoint.  Although there is a strong interest in prohibiting religious discrimination where religion is irrelevant, it seems somewhat queer to apply a rule against religious discrimination to a religious association.

One could say that an accept-all-comers policy is antithetical to the diversity that seemingly ought to flourish among student organizations.  Surely, a group's First Amendment right of expressive association is burdened by the forced inclusion of members whose presence would affect in a significant way the group's ability to function.

Perhaps it is a reasonable accommodation for you to tone down your approach.  You could scrap your entrance policy in favor of an exit rule: that a student who exhibits a consistent disregard and lack of respect for the objective of the organization must forfeit his or her membership.  This might well cost you little but pass muster with the school and with the courts.

If you cannot in good conscience agree to admit persons who do not share your faith, then please be advised that a school’s accept-all-comers policy is presently tolerated by our courts – unless there are circumstances that you have neglected to tell me.

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

Q: Both my son Timmy and his friend Ed were participants in their high school’s science-research program.  One day, after regular school hours, Ed said, “I’m goin’ to the lab to work on my project.  Teach is waiting for me.  Wanna keep me company?”  Teach let them in.  No one else was present.

Ed began to work on his project, under the flow hood.  At Teach’s suggestion, Timmy began to make himself useful and clean up the room.  Soon, Teach walked off to the deli, for a few minutes, to get something to eat.

After a while, Ed emerged from the flow hood, carrying a wire that he liked to play with, and began to clean his hands and table with ethyl alcohol.  He picked up a spark lighter.  Ed suffers from attention deficit hyperactivity disorder and even takes medication for it.  He struck the spark lighter.

A: Doubtless the school district will contend that Ed's activation of the spark lighter occurred so quickly that, even if present, Teach could not have prevented this horrible conflagration.  Your attorney will counter that Ed's dangerous conduct commenced even before that – with his use of the ethyl alcohol.

The law is that a school and its teachers owe to their charges the duty to exercise such care as a parent of ordinary prudence would observe in comparable circumstances.  The duty derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.  Even though a slightly-relaxed standard may occasionally be applicable in the context of extracurricular activities, that wee exception cannot apply here; this explosion occurred in a classroom.

Sounds like you are prima facie entitled to judgment as a matter of law on the issue of liability.  The school’s failure was a proximate cause of the tragedy.

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

Q: I rent and operate a liquor store in New York City.  In front of my store, a customer tripped and fell.  She says that a portion of the sidewalk was uneven.  Later in the day, her friend took some photos of the scene.  Am I exposed to a lawsuit?

A: Most likely, there is nothing in the lease that makes you responsible for making structural repairs to the sidewalk.  Rather, the terms of the lease place that obligation upon the landlord, and limit your obligations to removal of debris, snow and ice.  Apparently, the customer tripped and fell due to a structural defect in the sidewalk.  Accordingly, liability would stem from the landlord's own negligence, not yours.

Nevertheless, your landlord may seek to show that you are contractually obligated to indemnify it, pursuant to the terms of the lease.  The right to contractual indemnification depends upon the specific language.  A promise to indemnify will not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances.  The language must be unmistakable.

Moreover, a court is permitted to enforce an indemnity clause here only if the lease is a commercial one that includes an ‘insurance procurement’ requirement.  Where the parties freely use insurance to allocate the risk of liability, public policy is more tolerant of indemnity provisions.  Your attorney is likely early-on to want to read that lease.

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

Q: “Gold has been discovered in Surinam,” said my broker.  “This company has options on thousands of acres.  I know the president.  When this information goes public, the stock will quintuple!”

We contacted the president and inquired whether this tip was accurate; he would neither confirm nor deny the tip, but said that our broker was a very trustworthy and good man.  Believing that our broker was privy to information not otherwise available to the general public, we purchased the stock.

Initially, our shares increased dramatically in price.  Then, the mining venture collapsed, and our shares declined to well below the purchase price.  In retrospect, I think that our broker and the president were conspiring to trick us into purchasing the stock – by divulging false and incomplete information on the pretext that it was accurate.

A: What did you think when you decided to act on this so-called insider tip?  To trick an existing shareholder into selling his stock?  Because he was in the dark as to something that, strangely, the president was willing to let you know?

Even if you are not as white as snow, and even if you were a fool, that does not stop you from bringing a lawsuit – because the public interest is best served by allowing you to expose your broker’s illegal practice.  You will then need to prove that your broker intentionally made a material misrepresentation or omission.

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

Q: Wanting to enter the driveway of a shopping center, I made a left-hand turn from the street.  In an opposing lane, I collided with another vehicle.  There was no traffic signal at this spot.

It turns out that, in response to customer complaints, the center had commissioned a private engineering firm to conduct a study of the traffic conditions. The engineer had presented the study to the County with its recommendation that a traffic light be installed.

Instead, the County made its own studies of traffic conditions, including a traffic survey.  It conducted various on-site observations and reviewed motor vehicle accident data.  Eventually, the Public Works department announced that a traffic signal was totally unwarranted.

True, the County removed trees and a fence in order to improve visibility, and it installed warning signs.  Still, I want to sue the County: they should have installed a signal.

A: A governmental body may be held liable for a traffic planning decision only when its study is plainly inadequate or there is no reasonable basis for its plan.  Did the County consider the data contained in the engineer study as well as its own independently-obtained data?  Did it examine the need for a signal?  Did it pay attention to the issue of left-turn safety?

Something more than a choice between conflicting opinions of experts is required before a governmental body may be held liable for negligently performing its traffic planning function.  Your attorney will strive to show, not merely that another option was available, but also that the County’s response lacked a reasonable basis.

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 © 2011-2020 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

Q: On a rainy night, I was traveling downhill on a country road.  My car failed to negotiate a curve to the right.  Instead, it went straight, down into the gorge below.  I had noticed no speed-limit sign.

The next morning, a friend went back.  He saw a speed-limit sign, but there were tree branches across the front of it – touching the sign and laying across the front.  My friend also saw a warning sign, depicting a curve, maybe a hundred feet ahead of where I plunged, but this sign was tipped over to the side.

My friend also saw that twenty feet downhill from where I went off the road, but not at it, the County had placed a guide rail.  We have learned that the placing of the rail was without benefit of a study.  There has never been any study concerning the safety conditions of the road.  Where I went off, the County had put merely a two-foot pile of dirt.  The County does not know who, if anyone, designed this dirt pile or decided to put it there.

A week before my accident, a vehicle had gone over that dirt pile.  A month before my accident, a truck had crashed into the guide rail that was too far downhill to save me.

A: Despite the ample notice that this was a dangerous area, the County had failed to undertake a traffic study and failed to install and maintain sufficient speed-limit signs, warning signs and guide rails.  You are well situated to argue that the County was negligent.

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

Q: My mother fell down the basement stairs on premises owned by my boyfriend’s sister, who had permitted him to stay in her apartment while she was on vacation.  He invited me to join him, and I came with my mother, who suffers from dementia.

After my mother had eaten breakfast, she rose, and I saw her take two or three steps.  The next thing I knew, my mother had slipped and fallen down the basement stairs, which are around the corner fifteen feet away.  I had not noticed that something was slippery and do not know what, if anything, my mother slipped on.

A: An owner of property has a duty to maintain her premises so that they are reasonably safe.  This duty extends to any hazardous condition about which the owner has actual or constructive notice.  Except where the owner created the defective condition, it is necessary to establish that the condition either was known to the owner or had existed for a period of time sufficient to have allowed the owner to discover and correct it.

Even if any floor is inherently slippery, for a person in your mother’s state of health, that alone is not sufficient to support a cause of action for negligence.  It is fatal to the suit that there simply is no evidence that a defect caused this fall.

At best, your attorney may be able to find evidence of some prior injury or complaint about the floor, in order to support an inference that the very same hazardous condition still suggested.  However, to look for such proof is most likely a wild goose chase, and moreover the courts generally disallow that kind of inference as speculation.

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

Q: One Winter day, I was walking on a sidewalk alongside a County road. A pile of accumulated snow was obstructing the sidewalk, and so I needed to walk on the roadway. There I was struck by a car.

A: Quite possibly, the County’s negligent plowing of snow created this obstruction of the sidewalk – exposing you to the danger of walking in the roadway.

The County is likely to contend that its negligence, if any, was not the ‘proximate cause’ of your accident – for example, that the acts of the driver intervened between the County’s conduct and your injury, severing the ‘causal connection’. However, an intervening act does not constitute a superseding cause sufficient to relieve a defendant of liability unless it is (a) extraordinary under the circumstances, (b) not foreseeable in the normal course of events, or (c) independent of or far removed from the defendant’s conduct. Seemingly, the driver’s act in hitting you was a natural and foreseeable consequence of the County’s negligence.

Presumably, the County has enacted a ‘prior written notice statute’. Unless an exception applies, the County may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect. Because the County’s snow plowing operations caused snow to be deposited onto the sidewalk, an exception applies: the County itself created the defective condition through an affirmative act of negligence.

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

Q: At work to restore the facade of a building, I fell from an opening in a structure that extended around the perimeter of the building.  The owner had instructed my employer not to cover the opening with planks.  Instead, my employer tried guardrails.

Supposedly, I had been provided with a safety harness with a safety line – and was supposed to use the line to secure the harness to a fire escape when working near one.  But everyone knows that using the fire escape as anchorage is improper.  Moreover, a proper personal fall system was lacking.

For over a year afterwards, I had no orientation to place and time, was the subject of a court-ordered guardianship and required 24-hour-a-day supervision and the care of a nursing facility.  It is expected that I will never be employable.

A: Under Labor Law § 240(1), the contractor and owner were obliged to furnish or erect scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other devices – so as to give you proper protection.

The failure to provide an adequate safety device is a per se violation of Labor Law § 240 for which the owner and contractor are held strictly liable.  They can wriggle out of this only if (a) you had adequate safety devices at your disposal, (b) you both knew about them and that you were expected to use them, (c) for no good reason you chose not to use them, (d) and had you used them, you would not have been injured.  That does not sound like the case.

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

Q: To pour a concrete floor, I would much rather use a power buggy than a wheelbarrow. For horse play, I guess my friend likes buggies, too. He was not designated to operate my buggy. He was just a watchman on a construction site next to ours. My friend was not supposed to be at my site messing with my machine. All the same, he jumped on the buggy, lost control and fell off the buggy, which then struck me in the back.

A: Under section 241(6) of New York’s Labor Law, “All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.” Section 241(6) was deemed necessary by reason of the exceptional dangers inherent in connection with constructing or demolishing buildings, or doing excavating in connection therewith.

Rule 23-9.9(a) of New York’s Industrial Code states that no person other than a trained and competent operator designated by the employer shall operate a buggy. The courts interpret and apply the Industrial Code to effectuate its purpose of protecting construction laborers against hazards in the workplace – and Rule 23-9.9(a) is deemed sufficiently specific to support a claim under section 241(6).

Under the doctrine of respondeat superior, an employer is vicariously liable for torts committed by an employee acting within the scope of his or her employment. Pursuant to this doctrine, the employer may be liable whether the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a ‘natural incident’ of the employment. If, however, an employee for purposes of his or her own departs from the line of his or her duty to the extent that his or her acts constitute an ‘abandonment’ of being an employee, the employer is not liable.

Most likely, the defendants will argue that they cannot be held liable under a theory of respondeat superior, because your friend was acting outside the scope of his employment. However, although it may seem that your friend was horsing around, perhaps in part he was moving the buggy because it was in the middle of a road that his employer used. Or perhaps such conduct is generally foreseeable. After gathering the evidence, your attorney will hope to argue strongly that your friend’s conduct certainly did not amount to an ‘abandonment’ of his employer.

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