The Tower
Q: One day, at a century-old building, I was going down the exterior stairs leading to the basement. There I would punch-in at the office of my employer. I had just stepped down from the top step, which was still wet from rain, and I started to fall. The handrail did not begin until the third step down. I reached for it in order to stop my fall, but the handrail was out of reach. So I fell down five or six steps.
Q: One day, at a century-old building, I was going down the exterior stairs leading to the basement. There I would punch-in at the office of my employer. I had just stepped down from the top step, which was still wet from rain, and I started to fall. The handrail did not begin until the third step down. I reached for it in order to stop my fall, but the handrail was out of reach. So I fell down five or six steps.
A: The violation of a regulation, such as a provision of the building code, does not constitute negligence per se, but it often constitutes evidence of negligence. As to whether you have such evidence, most likely, under the current applicable building code, a handrail must extend to the top of a staircase.
All the same, the owner may contend that the building is exempt from such a requirement on the grounds of a ‘preexisting use’ – that the handrail was an original feature of the building. The owner would seek to put forth testimony (a) that its limited records do not indicate that the stairs or handrail had been replaced or substantially modified in recent decades and (b) that its employees have no recollection of any such activities. Nevertheless, this is not the same as proving that the handrail was an original element of the building.
Moreover, even if the handrail was an original element, and so current building-code standards do not apply, that does not dispose of your common-law negligence claim: generally, compliance with regulations, or a building code, is not dispositive on the issue of negligence. Your attorney is likely to argue that a handrail starting at the third step is inherently a dangerous condition.
Please note that, even if your fall was precipitated by a misstep, given your testimony that you reached out, there is an issue of fact as to whether the absence of a handrail at the top of the stairs was a proximate cause of your injury. Likewise, the fact that presumably you had used these stairs in the past and so may have been aware of the defective condition does not defeat your claim. Rather, these circumstances may be considered by a jury in assessing comparative 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 © 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 Town is Cheating
Q: A police car collided with my vehicle. Within days of the accident, my attorney submitted a written request that both vehicles be preserved in their immediate post-accident condition. Despite this, the town towed the police vehicle to a remote, outdoor site in another part of the city. There, the vehicle was vandalized: the lights and siren were removed, and the wires were cut, precluding a meaningful examination of its immediate post-accident condition.
Q: A police car collided with my vehicle. Within days of the accident, my attorney submitted a written request that both vehicles be preserved in their immediate post-accident condition. Despite this, the town towed the police vehicle to a remote, outdoor site in another part of the city. There, the vehicle was vandalized: the lights and siren were removed, and the wires were cut, precluding a meaningful examination of its immediate post-accident condition.
Meanwhile, I was charged with and pleaded not guilty to two traffic violations related to the accident, disputing that the officer's sirens or lights were activated at the time of the accident. I went to trial on the traffic violations and was convicted on one of them.
A: In appropriate situations, an issue decided in a criminal proceeding may be given preclusive effect in a subsequent civil action. However, petty infractions below the grade of a misdemeanor, such as traffic violations, are not held conclusive in later cases. The brisk and informal way in which these matters are tried, as well as the relative insignificance of the outcome, afford you neither opportunity nor incentive to litigate as thoroughly as you might if more were at stake.
While the disposition of a traffic ticket may be admissible in a subsequent civil case for limited purposes, a determination concerning a traffic violation is not deemed conclusive in a subsequent negligence action.
In addition, you may well be entitled to an ‘adverse inference’ jury charge as a penalty for the town’s negligent spoliation of evidence. This charge instructs the jury to determine whether the town has given a reasonable explanation for the destruction of evidence and, if not, whether an inference adverse to the town may be drawn in the wake of its destruction.
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 Treadmill
Q: Four times a week, if not more, I would exercise at the club. Every time, I would use a treadmill. One day, I had been standing in line beside a treadmill for almost two minutes, talking with another patron. Finally, I got my turn. The treadmill had not been turned off. Stepping on, I lost my balance and fell.
Q: Four times a week, if not more, I would exercise at the club. Every time, I would use a treadmill. One day, I had been standing in line beside a treadmill for almost two minutes, talking with another patron. Finally, I got my turn. The treadmill had not been turned off. Stepping on, I lost my balance and fell.
A: The club’s attorney will argue that you assumed – voluntarily took on – the risk that was inherent in using this running treadmill. You would have a very uphill battle to try to show that the club created or had notice of a dangerous condition. Although it would help your case if other health clubs have treadmills that automatically turn off, when the previous patron steps off, I have never heard that they do.
The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity 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.
It seems that the risks of using this treadmill were obvious and apparent. You consented to them. By making the conditions as safe as they appeared to be, the club had discharged its duty of care. Unless there is something you have not told me, you are likely to be barred from recovery – because of the doctrine of primary assumption of risk. But see an attorney, to be sure.
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 Truck that Backed
Q: My employer has a contract with the electric company, to clear trees and shrubbery. One morning, our crew blocked off a portion of one lane of the highway with traffic cones. I went about cutting trees and limbs in the work zone with my chainsaw.
Q: My employer has a contract with the electric company, to clear trees and shrubbery. One morning, our crew blocked off a portion of one lane of the highway with traffic cones. I went about cutting trees and limbs in the work zone with my chainsaw.
After a while, my chainsaw came apart, and so I walked toward one of the parked trucks to retrieve tools to fix it. Meanwhile, a foreman had directed one of my coworkers to back up a bucket truck and position it behind the chipper.
The coworker's view out the rear window was completely obstructed by a dump box mounted on the chassis. The truck was not equipped with a backup alarm, nor did anyone assist the coworker. He struck me from behind.
The electric company must have had a work permit, and the permit must have given the utility a duty to comply with federal and state worker safety regulations. Does this make the utility ‘vicariously liable’ for my employer's negligence?
A: A tiny clause buried in a contract does not always make the difference for the victim of an accident. In this case, a court will probably say that the utility had a right to ‘delegate’ this duty to your employer.
Utilities annually obtain highway work permits covering extensive geographical areas. For practical reasons, they routinely hire independent contractors to carry out their construction and maintenance tasks.
The utility did not supervise or control this project. Moreover, the law requires utilities to obtain permits, and they do not have the ability to bargain for terms and conditions. Unless you have failed to tell me something, the utility is not a plausible defendant.
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 Vanished Tape
Q: I was riding my bicycle on a sidewalk that was next to a large condominium complex. A month or two before, the City had excavated a portion of the sidewalk and backfilled it with a temporary patch, cordoning off the area with safety barrels and yellow caution tape. By the time of my accident, the safety barrels and yellow tape had disappeared.
Q: I was riding my bicycle on a sidewalk that was next to a large condominium complex. A month or two before, the City had excavated a portion of the sidewalk and backfilled it with a temporary patch, cordoning off the area with safety barrels and yellow caution tape. By the time of my accident, the safety barrels and yellow tape had disappeared.
A: At common law, liability for injuries sustained as a result of a dangerous condition on a public sidewalk generally is placed on the municipality – and not on the owner of the abutting land. Nevertheless, the landowner can be liable when it actually created the dangerous condition, made negligent repairs that caused the condition, or created the dangerous condition through a special use of the sidewalk.
In addition, many cities, such as New York, have a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk.
Many cities, such as New York, also have a ‘prior written notice’ law, under which the city may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless the city has received prior written notice of the alleged defect or dangerous condition, or an exception applies. There are two recognized exceptions: where the municipality affirmatively created the defect through an act of negligence or where a special use resulted in a special benefit to the locality.
Your attorney is likely to argue that the City affirmatively created the dangerous condition that caused your accident – that the City’s work on the sidewalk immediately left it in a condition that was dangerous to pedestrians and bicyclists.
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 Victim Who Cannot Remember
Q: My husband has no memory of his accident: his head injuries plunged him into a coma and resulted in post-traumatic amnesia. The police say that a truck in the left lane became disabled. Its driver got the truck to the far right lane, but then came to a full stop there, even though the truck had sufficient momentum to get onto the shoulder. The driver also failed to set off flares and place reflective triangles.
Q: My husband has no memory of his accident: his head injuries plunged him into a coma and resulted in post-traumatic amnesia. The police say that a truck in the left lane became disabled. Its driver got the truck to the far right lane, but then came to a full stop there, even though the truck had sufficient momentum to get onto the shoulder. The driver also failed to set off flares and place reflective triangles.
Had these devices been properly placed at the appropriate distances, my husband would have had time to avoid the stalled truck and be warned of its presence, significantly increasing his ability to react and maneuver his car so as to avoid the truck. Trucks are not permitted in the left lane in the area where the accident occurred. If the truck driver had been traveling in the right lane, he surely would have been able to stop on the shoulder. The roadway was straight and level, making it very difficult to judge the separation distance and leaving my husband with virtually no perceptual cues.
A: When an accident victim passes away or suffers from amnesia, the courts are more open than ever to the kind of evidence that you have described. Note that you will be suing, not only the truck driver and his employer, but also any outside entity that has been responsible for maintenance and repairs of the truck. These negligent repair people helped to launch a ‘dangerous instrumentality’.
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 © 2016-2020 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 Weak Flooring
Q: During some demolition work, I was assigned to spray the site with water from a water truck, in order to control the dust. The truck was filled with 5,000 gallons of water. I was driving the truck over the concrete flooring of the existing structure. Under the weight of my truck, the flooring gave way, and we plummeted to the basement level.
Q: During some demolition work, I was assigned to spray the site with water from a water truck, in order to control the dust. The truck was filled with 5,000 gallons of water. I was driving the truck over the concrete flooring of the existing structure. Under the weight of my truck, the flooring gave way, and we plummeted to the basement level.
A: Under both principles of common-law negligence and Labor Law § 200(1), both the owner and general contractor are obliged to provide you with a safe place to work.
Your attorney is likely to argue that the owner and the construction manager, among others, supervised, controlled and directed the work performed. However, the defendants are likely to respond that – no – they only had general supervisory authority for the purpose of overseeing the progress of the work and inspecting the work product.
What seems to be even better: your attorney is likely also to argue that the owner and construction manager both created the dangerous condition of the flooring and had actual or constructive notice of it. It appears that the concrete slab was not sufficiently demarcated from the surrounding areas and therefore constituted a trap. Surely, these defendants were part of its creation, and they very well knew about it.
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 © 2016-2020 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 Wet Mopping
Q: On Friday afternoon, the lobby of our building was wet mopped. In the course of this process, the maintenance workers were supposed first to remove the floor mats, and afterwards to mop the floor dry and put the mats back in place.
Q: On Friday afternoon, the lobby of our building was wet mopped. In the course of this process, the maintenance workers were supposed first to remove the floor mats, and afterwards to mop the floor dry and put the mats back in place.
On the next Monday, a new tenant was moving its furniture into the building. When one of the movers displaced a floor mat, he exposed some water. While exiting the lobby, I slipped on this water – which I observed immediately after I fell.
A: As an initial point, it may be that the building owner will not be the only defendant in your case, as oftentimes the maintenance of a building is entrusted to a separate management company, and both should be sued.
A landowner has a duty to maintain his or her premises in a reasonably safe condition. To impose liability on a defendant for a slip and fall on an alleged dangerous condition on a floor, there must be evidence that the dangerous condition existed, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time.
From what you tell me, it seems that the accumulation of water on which you slipped was created by the maintenance personnel. However, your attorney will not take this theory, of what happened, for granted. Rather, he or she will want to engage in discovery, involving documents and deposing witnesses – either to make sure that your theory stands up in court or to find a better theory.
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 Wicked Stepladder
Q: A wolf had damaged our chimney. Could we repair it ourselves? Should we hire a contractor? My stepmother did not know. When I returned from work, she asked me to inspect the chimney, gave me her tape measure and told me what to look for. Finding a spot among the tree roots, plants, garbage, rocks and gopher holes, she put up a ladder – which we had had for years, although no one had ever used it – and stood nearby. While climbing to the roof, I fell.
Q: A wolf had damaged our chimney. Could we repair it ourselves? Should we hire a contractor? My stepmother did not know. When I returned from work, she asked me to inspect the chimney, gave me her tape measure and told me what to look for. Finding a spot among the tree roots, plants, garbage, rocks and gopher holes, she put up a ladder – which we had had for years, although no one had ever used it – and stood nearby. While climbing to the roof, I fell.
My stepmother had often asked me to plow snow, repair mailboxes and perform other services for friends and neighbors, without expecting payment. She was not planning to pay me for determining what repairs were needed, although I think she would have given me something, if I had carried out the ultimate repair.
A: Your stepmother directed you on what to do when you inspected the chimney, and would have paid you if you had carried out the repairs. So, your attorney is empowered to argue that you were an employee within the meaning of the Labor Law and the Industrial Code.
Although the Labor Law generally does not protect a mere investigator and inspector, both of you anticipated that you personally would carry out the repair if your inspection revealed that this would be feasible. You have a decent argument that the chimney inspection was not a separate phase easily distinguishable from the actual repair, so that this accident was covered.
Focusing on Labor Law § 200, it is a codification of the common-law duty of a landowner to provide workers with a reasonably safe place to work. Apparently, your stepmother both (a) exercised supervisory control over the manner and methods by which you performed your work and (b) knew of the unsafe manner in which it was being performed. Thus, your attorney is able to argue that she is liable, in particular, under section 200.
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 © 2019-2020 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 Withering Examination
Q: On a rainy night, while I was a passenger, my friend backed his car out of a driveway and into the path of another car.
Q: On a rainy night, while I was a passenger, my friend backed his car out of a driveway and into the path of another car.
A: The operator of a car with the right-of-way is entitled to anticipate that your car will obey the traffic laws that require your friend to yield. So the other driver will try to establish that your car suddenly entered his lane and that there was nothing that he could have done to avoid the collision. You will counter that the other driver had a duty to see what – through the proper use of his senses – he should have seen.
At deposition, your attorney will ask the other driver a variety of questions. “Were you using your windshield wipers? Had you had any drinks on that night? How many? What medications had you been prescribed at that time?”
Your attorney will have follow-up questions. “Did you feel impaired by the alcohol? Why did you tell the police at the accident scene that you had consumed no alcohol at all? Why were you in process of switching seats with the owner of the car when the police arrived?”
The withering examination will continue. “Do you recall where you were looking prior to the accident? Why did you not even attempt to avoid colliding with the car in which the plaintiff was seated?”
These questions are mere samples, and each case is different. Your attorney will strive aggressively to establish that the other driver (a) failed to drive in a lawful and prudent manner immediately before the accident and (b) failed to engage in a reasonable response once your car appeared in the lane.
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 Wrong Habit
Q: While walking on ice and snow, in my line-of-duty as a New York City police officer, I fell. I applied for accident disability retirement – based on constant pain, and loss of range of motion, in my right shoulder and neck, and pain radiating into my arm. Injuries like that prevent an officer from performing his duties. My application was granted.
Q: While walking on ice and snow, in my line-of-duty as a New York City police officer, I fell. I applied for accident disability retirement – based on constant pain, and loss of range of motion, in my right shoulder and neck, and pain radiating into my arm. Injuries like that prevent an officer from performing his duties. My application was granted.
A year later, a police department investigator reported that I was picking up siding, passing it to others, lifting it over my head and nailing materials above my head with both arms extended. The pension fund's medical board concluded that my condition had improved dramatically, and the board of trustees voted that I should return to some kind of city service.
But a week later, I was disqualified from returning to work: they found cocaine in my hair sample. Despite that, am I entitled to keep my disability pension?
A: Section 13–254 of the New York City Administrative Code provides that a disability pensioner found able to work is put on a civil service list. His pension is reduced based upon outside earnings and upon the amount earnable in any city job that is offered. Although you were put on a civil service list, apparently you cannot be given a job because of your cocaine use.
Unfortunately, the statute in its most recent form does not specifically address this situation. Until the statute is revised, it is possible that a court will let you ‘benefit’ from using cocaine, keeping your benefits without working, but don’t bank on that.
You have not told me that the board of trustees has already reduced or terminated your benefits. If it has not, then perhaps now is the time to reconsider your fondness for cocaine. Perhaps you will get a second test, be found eligible and have better hopes of continuing to have a source of income – whether from benefits or from actual city earnings.
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 Wrong Party
Q: My car was struck by a tractor-trailer. I sued the driver and his employer – the owner of the tractor (the cab). The defendants never showed up. We obtained a default judgment.
Q: My car was struck by a tractor-trailer. I sued the driver and his employer – the owner of the tractor (the cab). The defendants never showed up. We obtained a default judgment.
We hadn’t realized that the owner of the trailer was not the same company. We learned this in the course of litigation. We forwarded the default judgment to their insurer. The new insurer immediately disclaimed coverage on the ground that it had not received timely notice.
A: It always is best to identify the correct owners from the start. Nevertheless, you still have a good shot at winning.
Presumably, we are talking about a motor carrier that transports goods in interstate commerce. Attached to the liability policy, there is required to be a federally-mandated policy endorsement, known as ‘MCS’. Your lawyer should argue that the MCS endorsement displaces the notice provision in the policy.
An excellent argument is that the default judgment amounts to the final judgment that triggers the protection of the MCS endorsement. Under this endorsement, the insurer is obligated to pay any final judgment recovered against the insured, and for your purposes this overrides the notice condition.
A skilled attorney will emphasize that this accident occurred in the course of the trailer owner’s business and was, therefore, precisely the type of risk the insurer agreed to cover when it issued the liability policy. Based upon the negligence of the driver and the tractor owner, you could surely have obtained a judgment against the trailer owner. To require the insurer to pay is fair.
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