Legally Speaking Q&As
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Accident at School

Q: My daughter was in first grade, participating in a physical education class.   The teacher had set up seven activities spread out throughout the gymnasium.   All the activities were occurring simultaneously.   Two of these activities, rope climbing and balance board, required more supervision than the others.

Q: My daughter was in first grade, participating in a physical education class.  The teacher had set up seven activities spread out throughout the gymnasium.  All the activities were occurring simultaneously.  Two of these activities, rope climbing and balance board, required more supervision than the others.

My daughter has no memory of what caused her accident.  One of the students says that she fell from the balance board, and that my daughter had struggled to maintain her balance and even fallen twice before this tragedy.  Another says that a student ran into my daughter, elsewhere, knocking her to the ground.  The teacher became aware of my daughter's accident only upon being notified.

A: A school is not an insurer of its students' safety, but it does have a duty to exercise the same degree of care toward its students as would a ‘reasonably prudent parent’.  The school can be held liable only for foreseeable injuries proximately related to the absence of adequate supervision.

If the accident was caused by a fellow student, then seemingly your case is more difficult: when a fellow student is involved, it must be established that his or her ‘third-party’ acts could reasonably have been anticipated.  School personnel cannot reasonably be expected to guard against all of the sudden, spontaneous acts that take place among students daily. An injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence – unless prior conduct should have put the school on notice to protect against the injury-causing act.  Your attorney will try very hard to pinpoint the 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

Accidents in Sports

Q: Tom is a member of the high school varsity softball team.   When Tom slid into home plate, his left foot got stuck in the mud.   It had rained heavily the day before the game.   Tom had seen the mud area prior to the accident.

Q: Tom is a member of the high school varsity softball team.  When Tom slid into home plate, his left foot got stuck in the mud.  It had rained heavily the day before the game.  Tom had seen the mud area prior to the accident.

While playing basketball at the gym, Dick ran at a fast pace and jumped to block a lay-up.  As he did so, his right arm went through – and shattered – a pane of glass in one of the entrance doors.  It was situated nearby the baseline.

Harriette was conducting a personal training session.  A swimmer in the same lane struck the back of Harriette’s knee with his foot – while turning to head in the opposite direction.

Toni’s school offers voluntary extracurricular athletic activities.  While roller skating, Toni lost her balance and fell.

At a fitness center, Tina was participating in a first step-aerobics class.  Underneath her step platform, there were far more risers than Tina would have imagined.  Tina lost her footing and fell.

A: Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting event consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.  The doctrine is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks.

Although an entity sponsoring a sporting activity is under a duty of ordinary reasonable care – to protect the participant from an unusual, concealed or unreasonably augmented risk – the participant assumes the obvious and inherent risks.  Tina appears to have a strong case, and Dick’s case may well be strong.  In all these cases, the victim should consult an attorney.

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

Acid Rain

Q:   While watching a parade, I leaned against a building for about five minutes.  As a result I sustained some awful chemical burns.  It turns out that a contractor had been hired to clean and waterproof the facade.  In the process of cleaning the building, the contractor applied a product that contained hydrofluoride, and took away the product with a steam cleaning machine.  During the steam cleaning process, the water and chemical ran down the side of the building to the sidewalk.

Q:    While watching a parade, I leaned against a building for about five minutes.  As a result I sustained some awful chemical burns.  It turns out that a contractor had been hired to clean and waterproof the facade.  In the process of cleaning the building, the contractor applied a product that contained hydrofluoride, and took away the product with a steam cleaning machine.  During the steam cleaning process, the water and chemical ran down the side of the building to the sidewalk.

However, the product was not completely removed.  During rain, the run-off had left an acidic residue on ledges and areas where someone like me might lean.

A:         The lessee of this building is vicariously liable for the acts of its independent contractor, based on the inherently dangerous nature of the work performed.  The use of hydrofluoric acid to clean the facade of a building in a public place is inherently dangerous, and it is foreseeable that pedestrians who come into contact with the exterior of a building on which this chemical has been applied or improperly removed would be injured.

The contractor's work involved a risk of harm inherent in the nature of the work itself and the lessee of the building should have recognized that risk in advance of the contract.

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

After an Accident

Q: I was in an auto accident.  I slowed my car, pulled over to the side of the road and checked to see whether the occupants of the other vehicle had been injured, or my mother-in-law.  I called an ambulance, but thought it best not to move her.  Meanwhile, I set out flares, turned my hazard lights on and raised the hood.  I’m not sure who called the police.

Q: I was in an auto accident.  I slowed my car, pulled over to the side of the road and checked to see whether the occupants of the other vehicle had been injured, or my mother-in-law.  I called an ambulance, but thought it best not to move her.  Meanwhile, I set out flares, turned my hazard lights on and raised the hood.  I’m not sure who called the police.

I wanted to write down the driver’s info: his name, address, telephone number, license plate number, driver’s license number, etc.  Also, his insurance information.  Plus the guy took out some kind of ‘waiver’.  But no one had a pen.  Not even the witnesses, who left before the police came.  My wife took some pictures.

It was snowing.  The speed limit was 40 mph.  The police asked what happened.  I had trouble remembering.  In hindsight, I would say I was going 45, and he was at 35.  Should I get back to them?

A: I cannot recommend that you get back to the police.  No, no, no.  At the time of an accident, many drivers tell the police the facts, and give their best estimates.  Other drivers find it appropriate to contact an attorney first.  But no one should make guesses.

Days later, you do not seem to have information that aids the police in their performance of a police function.  Are we talking about fault?  That is always a complex issue.  Don’t be so hard on yourself.  One needs all the facts and a full mastery of the law.  Even then, it is not the business of the police to receive mere editorial remarks and legal conclusions.

It’s a good thing you signed no waiver.  Do not sign anything before you speak with an attorney.  Do you have a copy of the accident report?  Did you see a doctor?  Take care of that right away: injuries may be lying under the surface.  Come to the lawyer’s office next.  We will tell you what records to keep and give you a balanced presentation.

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 © 2009-2020 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

After the Concert

Q: Following a rock concert, I attempted to load a box onto a truck.  It contained materials from the concert stage, which was being dismantled.  Before the concert, the box had been taken off the truck with a forklift.  Despite this, I was now instructed to hoist the box onto the truck by hand.  Sure enough, when I attempted to lift the box, its weight shifted, and the box fell onto me.

Q: Following a rock concert, I attempted to load a box onto a truck.  It contained materials from the concert stage, which was being dismantled.  Before the concert, the box had been taken off the truck with a forklift.  Despite this, I was now instructed to hoist the box onto the truck by hand.  Sure enough, when I attempted to lift the box, its weight shifted, and the box fell onto me.

A: With regard to section 200 of the Labor Law – common-law negligence – your attorney will want to look at the contracts among the arena, the promoter, your union and the band.  Read together, it is likely that these contracts give the promoter the authority and obligation to supervise and control your work.  Where, as here, the accident involves only the manner in which the work was performed, the promoter can be liable if it possessed that authority.

With regard to section 240(1), your attorney is likely to make at least three points.  First, the promoter was a licensee of the arena and had the authority to supervise and control your work.  Second, your accident is within the purview of section 240(1) because you were involved in the demolition of a structure, i.e. the concert stage.   Third, your injuries were a direct consequence of the defendants’ failure to provide adequate protection against a risk arising from a physically-significant elevation differential.

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

After the Storm

Q: One Friday morning, while in the process of dropping my son off at school, I slipped and fell on snow and ice.

Q: One Friday morning, while in the process of dropping my son off at school, I slipped and fell on snow and ice.

It had been snowing the night before, when I went to bed, and that morning, I checked on television: “school will be open as usual.”  As I walked to my car, I saw a little snow blowing from the trees, but nothing fell during our drive.  When I reached the school, there was no snow falling, and school was open.

A: As with any accident, you should consult an attorney without delay.  If you fell on the school grounds, and this is a public school, a ‘notice of claim’ will be served on the school district, as soon as possible.  If you fell on a sidewalk or street owned by a city, county or state, the notice will be served on that entity.

Sometimes a defendant will seek to invoke the ‘storm in progress’ defense – that there is no liability for injuries related to accumulated snow and ice until after a storm has ceased, in order to allow the owner a reasonable period of time to clean the property.  That is, he or she has no obligation to shovel snow while continuing precipitation or high winds are simply re-covering the property as fast as it is cleaned.

It sounds like there was no such storm, here, but nevertheless your attorney is likely to double-check the weather records.  Even if there had been a storm, but the storm has passed and precipitation has tailed off, so there is no longer any appreciable accumulation, then the ‘storm in progress’ defense will fail.

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

Alfalfa As Is

Q: I am a grower of alfalfa seeds – have spent many years in farming.  When the manufacturer of a weed-killer started selling genetically-modified alfalfa that can tolerate the weed-killer, I realized that my own alfalfa would soon be altered by the new gene, because alfalfa is a perennial plant, whose seeds can lie dormant for 20 years.  That is plenty of time for insects that travel long distances to cross-pollinate.

Q: I am a grower of alfalfa seeds – have spent many years in farming.  When the manufacturer of a weed-killer started selling genetically-modified alfalfa that can tolerate the weed-killer, I realized that my own alfalfa would soon be altered by the new gene, because alfalfa is a perennial plant, whose seeds can lie dormant for 20 years.  That is plenty of time for insects that travel long distances to cross-pollinate.

I do not want my own alfalfa to end up genetically modified!  But the USDA has issued an Environmental Impact Statement and announced that the genetetically-modified alfalfa will not be regulated: it can be planted with no limitations.

A: To stop the new alfalfa, you will need an injunction.  But injunctions are issued only to the extent that the circumstances warrant.  You must convince the court that you are likely to suffer ‘irreparable harm’ without the injunction.  Apparently, you fear that cross-pollination will lead to the extinction of conventional alfalfa.  Do you also fear that the genetic contamination will decimate your livelihood?

Like it or not, in the absence of specific statutory directives, the courts have a harder time with relatively abstract environmental values than with classic legal harm, such as eradication of one’s livelihood.  Undeniably, genetic engineering has the potential to contaminate the environment and human health, and to do so in unforeseeable and uncontrollable ways.  But once the USDA has spoken, the courts are relatively boxed-in.

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

All Barges Are Vessels

Q: I am a millwright.  One day, I was assigned to work on a electricity-generating turbine upon a barge.  While stationed, the barge is afloat in the bay and connected to a power grid.  Once in ten years, it is moved to dry dock for maintenance.

Q:    I am a millwright.  One day, I was assigned to work on a electricity-generating turbine upon a barge.  While stationed, the barge is afloat in the bay and connected to a power grid.  Once in ten years, it is moved to dry dock for maintenance.

The turbine was one of eight on the barge, powered by gas.  My supervisor told me to enter the turbine's exhaust well, through a hatch, to weld some fixtures inside.

Using a ladder, I entered the hatch.  From there, I needed to climb down into the bottom of the exhaust well.  But my feet slipped, and I fell.  I’ve been told to bring suit under the Labor Law.

A: There exists a federal law called the Longshore and Harbor Workers' Compensation Act.  It applies to vessels, and seemingly all barges are vessels.  So your lawyer will worry that the federal Act ‘preempts’ the New York Labor Law’.

The Act clearly states that an action in negligence may be brought ‘against’ a vessel and that such remedy shall be ‘exclusive’ of all other remedies ‘against’ the vessel, except other remedies available under the Act.

Under the Labor Law, you can bring an action in strict liability, and need not prove the company’s negligence.  Under the Act, you must prove that the company is guilty of some degree of fault.

The federal statutory definition of a ‘vessel’ is any “contrivance used, or capable of being used, as a means of transportation on water.”  Although this barge had been tugged to a maintenance station, the company can well say that the barge kept its status as a vessel – so that you must prove some degree of its fault.

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

All Hands On Deck

Q: At the entrance to my workplace, there is a wooden deck. It is three-feet high and the best place for a break. As I leaned against the wood handrail, it came loose from the masonry exterior and gave way. I fell to the ground. The deck had been constructed about a year earlier, on a concrete slab. Can I sue the contractor?

Q: At the entrance to my workplace, there is a wooden deck.  It is three-feet high and the best place for a break.  As I leaned against the wood handrail, it came loose from the masonry exterior and gave way.  I fell to the ground.  The deck had been constructed about a year earlier, on a concrete slab.  Can I sue the contractor?

A: Everyone knows that a handrail can suffer repetitive stresses, such as vibrations, weather conditions and workers who need a place to sit.  You will need to show that these stresses, and others, were thoroughly foreseeable to the contractor.

You may want to depose the contractor's employee who actually put up the deck.  Presumably, he will testify as to his experience and how he determined in what way to proceed – like, what fasteners to use in attaching the handrail.  Perhaps, when the deck was completed, he and another worker checked its strength by shaking the handrail, finding it to be secure.

On your behalf, a construction expert might give her opinion that the fasteners used to attach the handrail to the building were inadequate and violated industry standards.  Possibly, your expert will be able to testify that the contractor's methods violated a building code, in some specific respect.

In this manner, you will seek to establish that the contractor's construction of this deck amounted to the active launching of a force or instrument of harm – a type of misconduct that mitigates the fact that the construction contract was never, directly, with you.

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

Alter Ego

Q: I am a truck driver. One day, I tried to open the bay door at the back of a truck. There was something wrong with it, and so I badly injured my wrist. Under a policy issued to my employer, I received workers’ compensation benefits. I do not think my employer owned this truck, although we often did jobs with it.

Q: I am a truck driver. One day, I tried to open the bay door at the back of a truck. There was something wrong with it, and so I badly injured my wrist. Under a policy issued to my employer, I received workers’ compensation benefits. I do not think my employer owned this truck, although we often did jobs with it.

A: Under the Workers’ Compensation Law, you are barred from suing your employer: the benefits that you received are your exclusive remedy. If the owner was an alter ego of your employer, then these exclusivity provisions also bar you from suing the owner. That is, the protection against a lawsuit also extends to an alter ego of your employer.

To establish itself as an alter ego, the owner must demonstrate either that it and your employer operated as a single integrated entity, or that one company controlled the day-to-day operations of the other. To do so, perhaps the owner will present evidence that the two entities were related and, among other things, shared some officers.

In opposition, you may be able to show that the entities were formed for different purposes, had separate bank accounts, filed separate tax returns, and had different workers’ compensation policies. Moreover, the owner’s name was on the cabin doors of the owner’s trucks, one of the owner’s employees oversaw the purchase and maintenance of the trucks, and the owner billed your employer for its services. In this way, you may have a strong case that the exclusivity defense of the Workers’ Compensation Law in fact does not bar a suit against the owner.

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

Altercation

Q: During the school year, in the second grade, the other boys had been teasing me.  My mother had complained to the principal that they were bullying me, although she never gave names.

Q: During the school year, in the second grade, the other boys had been teasing me.  My mother had complained to the principal that they were bullying me, although she never gave names.

One morning, I told my teacher that Billy was picking on me and calling me names.  At the end of the school day, when we were lining up to go home, Billy and I exchanged words, and he pushed me into a desk.  I pushed back, and Billy pushed me again, causing me to fall back into a bookcase and strike my head against it.

The school principal says that she had never received any complaints that Billy had acted violently or had been involved in physical altercations or engaged in improper touching or hitting – and that no prior incidents involving Billy can be found in the Department of Education's database.

A: Schools have a duty to adequately supervise their students, and are held liable for foreseeable injuries proximately related to the absence of adequate supervision.  Nevertheless, unanticipated third-party acts causing injury upon a fellow student generally do not give rise to a school's liability in negligence – absent actual or constructive notice of prior similar conduct.

To succeed, you need evidence of notice that Billy had a proclivity to engage in physically aggressive conduct.  Mere evidence of complaints that Billy was calling you names, and reports that unidentified boys were picking on you, shows no more than that the school knew that Billy had been picking on you verbally.  However, knowledge of such taunting does not give the school sufficiently specific knowledge of similar prior conduct.

Moreover, schools are not insurers of safety and cannot reasonably be expected to continuously supervise and control all movements and activities of students.  To succeed, you will also need to show proximate causation – that a reasonable greater level of supervision would have prevented this sudden and spontaneous altercation.

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

An Officer’s Failure To Signal

Q: I am a police officer and was driving my marked police vehicle north on a two-lane road. A southbound vehicle moved into my lane and then back into its own. I slowed my vehicle, pulled to the right shoulder and activated my emergency lights. I started to make a U-turn, in order to pursue the lane switcher, but my car was hit by a northbound car behind me. I had failed to activate my directional signal.

Q: I am a police officer and was driving my marked police vehicle north on a two-lane road.  A southbound vehicle moved into my lane and then back into its own.  I slowed my vehicle, pulled to the right shoulder and activated my emergency lights.  I started to make a U-turn, in order to pursue the lane switcher, but my car was hit by a northbound car behind me.  I had failed to activate my directional signal.

A: The northbound driver cannot have been following you too closely, as no one at all was following you – once you pulled off the roadway onto the shoulder.  She also did not fail to yield to an emergency vehicle, because you gave her no time to yield.  Even if she believed that you intended to turn your vehicle around and pursue the southbound driver, a reasonable person in her position would have thought that you were planning to turn around after the traffic cleared.  It sounds like your sudden and unannounced U-turn into the flow of traffic need not have been anticipated.

Your case, if any, is against the southbound driver, but only under General Municipal Law § 205-e.  In a section 205-e action, and assuming that the southbound driver was violating a provision of law, even though the connection between your accident and this violation is indirect, he is liable to pay you not less than one thousand dollars.  Your comparative fault is not an obstacle.

However, you appear to lack a common-law negligence claim against the southbound driver.  Your accident and his reckless driving, if any, do not have a proximate connection.  Seemingly, the appearance of the northbound vehicle, along with your failure to signal your intention and your failure to notice the new vehicle constitute intervening, superseding events, severing the ties that are necessary for proximate causation.

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