The Spit Wad
Q: During lunch period in the high school cafeteria, another student threw a foul-smelling spit wad at me. I went over to his table, and he challenged me to a fight. Instead, I returned to my table. At the end of lunch period, in order to go to my next class, I went out to the stairwell. With three friends, he blocked my access and proceeded to punch and kick me for half a minute.
Q: During lunch period in the high school cafeteria, another student threw a foul-smelling spit wad at me. I went over to his table, and he challenged me to a fight. Instead, I returned to my table. At the end of lunch period, in order to go to my next class, I went out to the stairwell. With three friends, he blocked my access and proceeded to punch and kick me for half a minute.
A: In assuming physical custody and control over its students, a school effectively takes the place of parents and guardians and is liable for foreseeable injuries proximately related to the absence of adequate supervision. Generally, notice to the school of prior similar conduct is required: an injury caused by the impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence.
Perhaps the school district had specific knowledge of your assailants’ dangerous propensities, such as a disciplinary history. Perhaps the general security measures at the school were inadequate, with too few safety officers in the vicinity of the cafeteria and stairwell, balanced against the frequency of violence between class periods and after lunch.
Seemingly, there was an absence of security in the stairwell precisely when it would be expected that a large number of students would be exiting the cafeteria and using that stairwell, and adequate supervision would have prevented this catastrophe.
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 © 2018-2020 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
The Staging Area
Q: My employer was engaged in rehabilitating several bridges that were located on a public roadway. For use as a staging area, my employer leased a parking lot. We were setting-up some lighting equipment for use in this project. While I was attempting to get the equipment to my pickup truck, I tripped on debris. My accident occurred in that parking lot, next to the roadway where the bridges were located.
Q: My employer was engaged in rehabilitating several bridges that were located on a public roadway. For use as a staging area, my employer leased a parking lot. We were setting-up some lighting equipment for use in this project. While I was attempting to get the equipment to my pickup truck, I tripped on debris. My accident occurred in that parking lot, next to the roadway where the bridges were located.
A: Your attorney is likely to argue that, under section 241(6) of the Labor Law, the parking-lot owner was obliged to comply with the various safety rules made by the Commissioner of Labor. One such rule is 12 NYCRR 23-2.1(b): “Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.” The owner is likely to raise at least two objections.
First, that your injury did not occur on a construction site. Your attorney will rebut that the protections of section 241(6) extend even to areas where materials or equipment are being readied for use at a construction site. This lighting equipment was being prepared in the staging area for imminent use in an ongoing construction project.
Second, that the owner was ‘out of possession’. Your attorney will need to look at the lease agreement between the owner and your employer. Even if the lease describes an out-of-possession situation, perhaps the actual conduct of the parties is not consistent with that.
In addition, to the extent that your injuries stemmed from the debris, if the owner retained control over the parking lot, and the debris was visible and apparent, and it had existed for a significant length of time, then the owner may also be liable under section 200 of the Labor Law.
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 © 2017-2020 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
The Stranger
Q: Yesterday, I arrived home from work. Interestingly, the building's front doors and interior security doors were open. I walked up to my floor and saw a stranger on the staircase leading to the next floor. As I entered my apartment, the stranger pushed me in, grabbed me around the throat and dragged me into the bedroom.
Q: Yesterday, I arrived home from work. Interestingly, the building's front doors and interior security doors were open. I walked up to my floor and saw a stranger on the staircase leading to the next floor. As I entered my apartment, the stranger pushed me in, grabbed me around the throat and dragged me into the bedroom.
He pinned me to the bed, forcibly removed me jewelry and tied my hands behind my back. As he left the bedroom to rummage through the apartment, I freed myself and shouted for a neighbor, causing the stranger to flee. He was later apprehended and convicted of a series of crimes, including this awful attack.
A: If you sue the stranger, and he talks, then perhaps he will claim that he found the building doors locked and gained entrance by ringing buzzers until someone let him in. Your case against the landlord is stronger if the stranger had entered the building through an open door.
Had tenants complained about the front doors’ being left open? Had there previously been assaults or burglaries in the building? Such evidence will help your lawyer establish that the landlord had actual notice of a particular recurring safety issue that was reasonably within its power to correct. This is sufficient to establish constructive notice of what regrettably happened to 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 © 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
The Strip Mall
Q: My coworker and I got to the parking lot. It had been plowed, but we needed to remove some leftover snow in order to open the gate to our customer’s dumpster. After we had emptied and pushed it back, we started walking out. After a couple of steps, I slipped and fell on black ice, in the area that we had just shoveled.
Q: My coworker and I got to the parking lot. It had been plowed, but we needed to remove some leftover snow in order to open the gate to our customer’s dumpster. After we had emptied and pushed it back, we started walking out. After a couple of steps, I slipped and fell on black ice, in the area that we had just shoveled.
This was at 11:00 p.m. There had been no precipitation since 4 a.m. The property has two tenants. The other one has a separate dumpster area next to our customer’s, with a common divider fence, but two separate gates. Our customer would have its own contractor do the snow plowing.
A: It seems that the hazardous condition had been present for at least nineteen hours. If the snow and ice would have been completely removed and the parking lot surface would have been salted, the snow and ice condition would not have been present.
Your attorney will argue that the landlord had a nondelegable duty to provide the public with reasonably safe premises and a safe means of ingress and egress. Your attorney also will argue that, like the owner, your customer had a duty to keep the property in a reasonably safe condition: that a tenant has a duty to remove dangerous or defective conditions, even though the landlord may have explicitly agreed in the lease to maintain the premises and keep them in good repair.
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 © 2017-2020 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
The Swimming Pool : Part 1
Q: Last summer, I hurt myself at the bottom of my friend’s swimming pool. I remember walking toward it across the deck – but nothing afterwards until I awoke, four weeks later, in the hospital.
Q: Last summer, I hurt myself at the bottom of my friend’s swimming pool. I remember walking toward it across the deck – but nothing afterwards until I awoke, four weeks later, in the hospital.
My friend says that I got to her pool taking three large steps on the tips of my feet. Six inches from the edge, my left foot slid forward, sort of tripping me into the pool. Although the deck was wet from rain and from people splashing in the pool, no one else had slipped.
I had been in this pool many times before the day of my accident and had never before had any trouble walking on the deck. A month before, my friend’s parents had applied Wood Pecker’s Wood Protector to their deck. What happens if I sue the company and say the ‘protector’ made the deck more slippery? Or sue the hospital for malpractice?
A: It is your burden to show that a defect in the product was a ‘substantial factor’ in causing your injury. You need evidence of a causal relationship between the wood protector and your fall into the pool. In a case like this, it generally is necessary to have an ‘expert witness’. Hiring one can be costly and problematic, depending on the types of testing and formulas involved.
It is not enough for an expert to base his or her opinion on ‘well-known facts’: for example, that oil can rise above water and can become slippery. A court is likely to disregard a ‘can’ opinion as ‘speculative’ and ‘conclusory’.
As for the hospital, an expert's opinion merely that it departed from ‘good and accepted medical practice’ by prescribing a particular medicine might be dismissed as conclusory and speculative. A mere opinion that the treatment ‘delayed’ your recovery is likely to be considered inadequate.
The expert’s opinion must be based upon accurate statements of the evidence. It must contain factual assertions that are well-supported. The opinion must display a detailed train of reasoning.
These are among the many things that you may hear when you take this case to 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 © 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
The Swimming Pool : Part 2
Q: Last summer, I slipped and fell in the locker room of the pool at the County Park. My son had slipped off a bench. I went to grab him and fell against a corner of the bench, hitting my thigh.
Q: Last summer, I slipped and fell in the locker room of the pool at the County Park. My son had slipped off a bench. I went to grab him and fell against a corner of the bench, hitting my thigh.
When we got home, I called the County to complain. I let them know that the benches are too high. The lady said that she was filling out an accident report.
I am sure that an excessive amount of water had accumulated. This must have caused a slick and slippery condition, and that is why I fell.
After some time, I experienced back and leg pains and even underwent surgery for removal of a herniated disc. Now, I would like to sue.
A: Under New York General Municipal Law § 50-e, with limited exceptions, a person who contemplates suing a public corporation is required to serve a ‘notice of claim’ within ninety days after the claim arises. Since you do not say that you filed a notice of claim, permit me to infer that you did not.
Under the statute, upon application, a court has discretion to extend the time to serve a notice of claim, generally by no more than a year. In determining whether to grant an extension, the court must consider whether the public corporation nevertheless had “acquired actual knowledge of the essential facts constituting the claim” within the ninety days that you let pass. The court should determine “whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.”
When you called the County, on the first of the ninety days, apparently you emphasized the height of the benches, from a child’s perspective. Your conversation is memorialized in an accident report. This report is one of the first things your attorney will want to see.
However, if that is all you told the County, then the County will argue that you did not alert them to the excessive amount of water that you now contend had caused your fall. The County could not send a photographer before the water would have dried up – to photograph what the County believes was a dry-enough floor. The County will say that it was substantially prejudiced in maintaining its defense.
In between an imperfect accident report and the lengthy delay in initiating court proceedings, your attorney will have a challenge. But lawyers, like all of us, surmount challenges every day. Good luck.
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
The Swimming Pool : Part 3
Q: Our seven-year old went to the park. The playground is right next to a swimming pool. Upon the playground there was a set of steel bars called the ‘monkey bars’. It looks somewhat like a collection of ladders.
Q: Our seven-year old went to the park. The playground is right next to a swimming pool. Upon the playground there was a set of steel bars called the ‘monkey bars’. It looks somewhat like a collection of ladders.
In hindsight, these monkey bars had become wet from their use by children emerging from the pool. Although there was a life guard at the pool, no one was supervising the playground.
Our daughter was climbing upon the bars. Her hands slipped on a moist one. She fell to the ground. Can we sue in negligence?
A: In a case like this, the owner of the playground likes to claim that it breached no duty. The owner will say that your child ‘assumed the risk’. The owner will claim that it had no particular duty of supervision. Generally, a court will rule that these questions are for the jury to determine.
Our legal system is far more likely to find ‘assumption of the risk’ when the victim is an adult. For example, suppose a professional baseball player goes upon a wet and muddy field. He injures his knee, and his career is ended.
The baseball player is likely to be found to have ‘assumed the risk’. He probably had enough time, and even a duty, to become aware of the wet and muddy condition. Players in such a situation are likely to call the attention of groundskeepers to fact that there are puddles and also to make comments to the manager.
The legal considerations are different for a child, and it sounds like your case is a strong one.
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
The Swinging Load
Q: At a six-story construction site, I was unloading some air-conditioner condensers from a delivery truck, and positioning them on pallets. One of these pallets became stuck under a side rail of the truck. The truck driver and the crane operator asked me to help place a jack under the stuck pallet. The driver would use a steel bar to pry back the side rail. The crane operator would use her crane to put tension on the pallet.
Q: At a six-story construction site, I was unloading some air-conditioner condensers from a delivery truck, and positioning them on pallets. One of these pallets became stuck under a side rail of the truck. The truck driver and the crane operator asked me to help place a jack under the stuck pallet. The driver would use a steel bar to pry back the side rail. The crane operator would use her crane to put tension on the pallet.
When the plan was put into action, the pallet and the jack suddenly moved toward me and knocked me off the back of the truck.
A: Under section 241(6) of the Labor Law, any area 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.
It may well be that your best bet is to allege a violation of section 241(6) and predicate it upon section 23-8.2(c)(3) of title 12 of the New York Codes, Rules and Regulations (NYCRR). Sub-subsection 23-8.2(c)(3) provides rules for when a mobile crane is lifting (i.e., hoisting) a load. So as to avoid swinging or rotation, the load must be raised vertically, and a tag or restraint line must often be used.
Sub-subsection 23-8.2(c)(3) is designed to protect a worker from the hazards created by the possible horizontal movement of a load being hoisted by a crane. This statute may well be applicable to the facts of your case. If so, your attorney will search for proof that it has been violated.
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
The Thin Skull
Q: The deliveryman knocked. Would I please open the basement door to receive a tank of gas? I did; it tumbled and caused me to fall. I suffer from osteoporosis. This was a disaster.
Q: The deliveryman knocked. Would I please open the basement door to receive a tank of gas? I did; it tumbled and caused me to fall. I suffer from osteoporosis. This was a disaster.
On an uneven surface, the deliveryman had left the tank unattended in a hand truck. The truck was missing the chain normally used to secure the tank, which weighed about 90 pounds.
A: Your attorney will argue that osteoporosis is abnormal or unsound only when tested by a standard of perfection. Common speech does not call it a disease or infirmity. Osteoporosis is at worst a predisposing tendency, remote in its potential mischief.
A sufferer from hernia, with a predisposition to rupture, can still recover. So can one whose bones have become brittle with the departure of the first years of youth. Suppose that someone with an abnormally thin skull is struck a blow which would not seriously injure a normal person, but which brings about death. The cause of death is not the thinness of the skull, but the receipt of the blow.
Seemingly, your case is a prime candidate for summary judgment: the deliveryman’s negligent conduct was the sole proximate cause of your injuries; the defendants cannot even begin to raise a triable issue of fact.
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
The Too-social Host : Part 1
Q: I was in high school, and now I am in the hospital. I went to a party at my friend’s house. Her parents were away. She had given kids permission to bring alcohol, even kegs of beer. I think she was even supposed to get a cut of the money. During a brawl on the street, I was punched in the face.
Q: I was in high school, and now I am in the hospital. I went to a party at my friend’s house. Her parents were away. She had given kids permission to bring alcohol, even kegs of beer. I think she was even supposed to get a cut of the money. During a brawl on the street, I was punched in the face.
A: This is appalling. Your attorney will certainly tell the court that your friend deliberately planned to provide, supply and give alcohol to underage people. She was more than an unknowing bystander or an innocent dupe whose premises were used by other minors seeking to drink. She was more than a passive participant who merely knew of the underage drinking and did nothing else to encourage it. She played an indispensable role in a deplorable scheme to make alcohol available to underage guests.
The law fully understands that a person consuming excess alcohol at a social event has the same propensity harm the traveling public as one who has received alcohol in a retail establishment. In New York, we even have a statute called General Obligations Law § 11-100. Its purpose is to employ civil penalties as a deterrent against underage drinking. Every parent, and every child, should know better than to facilitate what happened here, and this statute is available in the event of a lawsuit.
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
The Too-social Host : Part 2
Q: My daughter was a passenger in a car. Her friend failed to negotiate a sharp curve. The car went into a ditch and down an embankment. It flipped over onto the roof. Her friend also passed away. I know that, earlier that day, he had first been at the local bar and then been at a house party.
Q: My daughter was a passenger in a car. Her friend failed to negotiate a sharp curve. The car went into a ditch and down an embankment. It flipped over onto the roof. Her friend also passed away. I know that, earlier that day, he had first been at the local bar and then been at a house party.
A: In this tragic kind of lawsuit, one generally sues both the bar and the host, among others. The plaintiff alleges that alcoholic beverages caused the driver to become intoxicated and to drive in a negligent and reckless manner. Sooner or later, the attorneys come to cite New York General Obligations Law § 11-100. This statute governs compensation for injury or damage caused by the intoxication of a person under the age of twenty-one years.
The house party, in particular, is likely to present a number of questions of evidence. Who was the owner of the house? Who was its tenant? Was she present? Who was the host? Was he well known to the tenant? Who helped with the party preparations? Was money collected? Did anyone see the friend drink? How close to the party did the accident occur?
In any negligence trial, the jury has to determine whether the victim had exercised due care to mitigate any injury that she would likely sustain. Perhaps the defendants can demonstrate that non-use of an available seat belt played a part. Then non-use is a factor which the jury may consider.
When such a tragedy occurs, then legal remedies should be pursued and cannot be disregarded. Nevertheless, any competent attorney or other decent person has only one piece of advice, first and foremost. “If you drink, don’t drive.”
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
The Top of Heaven
Q: On the sixth floor, my co-worker and I entered the elevator. We pushed the button for the lobby. The elevator moved up and down. It shook and stopped. We were trapped! Over the intercom, the building's fire-safety director told us to stay calm. “Mechanics are on the way.” We sat on the floor of the elevator, and waited.
Q: On the sixth floor, my co-worker and I entered the elevator. We pushed the button for the lobby. The elevator moved up and down. It shook and stopped. We were trapped! Over the intercom, the building's fire-safety director told us to stay calm. “Mechanics are on the way.” We sat on the floor of the elevator, and waited.
Sometimes, I do not remember things too well. The other day, I went to a movie called “The Runaway Elevator.” In the movie, the elevator made an upward movement and then continued moving up and down the elevator shaftway at twice its normal speed for approximately one hour before stopping. The occupants were really shook up, and they recovered millions. My son-in-law says maybe that’s what happened with me.
A: From what you do remember, it does not appear that you suffered physical injuries. Moreover, it does not appear that the conduct of management was so outrageous in character, and extreme in degree, as to go beyond all possible bounds of decency; thus, you cannot prevail on a claim of negligent infliction of emotional distress. In addition, it does not appear that management had exhibited malice or a wanton disregard for public safety; so, you cannot obtain punitive damages.
As for the ‘movie’ version, bear in mind that 99% of the time that scenario is mechanically, scientifically and physically impossible – because of multiple redundant safety features that will stop the elevator instantly in case of excessive speed.
You should always tell your attorney the whole truth, and nothing but the truth. Your movie has nothing to do with this. Even if you go to the bottom of the barrel, and find an attorney who does not care about the truth, count on your opponents to go to the top of heaven – in order to expose you both.
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