Trip to the Store
Q: Twenty feet from the supermarket, I tripped in the shopping center’s parking lot. As I lay on the ground, I noticed many crevices in that area – although I cannot specifically say precisely which crevice caused me to fall.
Q: Twenty feet from the supermarket, I tripped in the shopping center’s parking lot. As I lay on the ground, I noticed many crevices in that area – although I cannot specifically say precisely which crevice caused me to fall.
A: Real property must be maintained in a reasonably sale condition by its owner, or by a tenant in possession. The determinative factor is one of possession or control. Your lawyer will want to see the lease between the shopping center and the supermarket, to determine who is contractually responsible for the maintenance and repair of the parking lot. Even if the lease points to the shopping center, perhaps it is the practice of the supermarket to take responsibility – by inspecting the parking lot and calling its internal maintenance department with any complaints. After that, perhaps the maintenance department has a variable record as to whether it will then (a) notify the shopping center of the problem or (b) assign its own contractor to perform necessary repairs. Generally, both the shopping center and the supermarket will be named as defendants.
The defendants are likely to argue that your inability to identify which crevice prevents you from being able to prove that your accident was proximately caused by a defect for which they are responsible. Your attorney will reply that your recollection is sufficient to demonstrate a causal connection between the parking lot and your fall, and that you are not required to prove precisely which particular crevice caused your fall.
As always, it is best to have photographs showing the area of the accident, taken close enough in time that is unlikely that much has changed. Often the victim has no ability or mood to take photos, but a perceptive bystander will do so, or a wise friend or relative will come by soon. Photographs which accurately depict the area can help convince the jury that you know what you are talking about and that the defendants should have known about the defects.
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
Tripping in a Tree Well
Q: One day in New York City, my right foot got caught in a raised brick. The brick was part of a curbside tree well. I lost my balance and fell.
Q: One day in New York City, my right foot got caught in a raised brick. The brick was part of a curbside tree well. I lost my balance and fell.
A: Under section 7-210 of the NYC Administrative Code, the owner of real property abutting any sidewalk is obliged to maintain the sidewalk in a reasonably safe condition. However, for the purposes of section 7-210, a tree well is not considered part of the sidewalk. Thus, section 7-210 does not impose liability on the adjacent property owner.
Occasionally, the adjacent property owner owns the tree well or otherwise has assumed a duty to maintain it. Perhaps there is evidence of such a duty. Then, principles of negligence can impose liability.
In other words, so long as the tree well was the proximate cause of your fall, and no condition concerning the sidewalk was a possible factor in the happening of this accident, the adjacent property owner is not liable. However, perhaps you were in the tree well because there was a hazard on the sidewalk that you were trying to avoid. In that case, the adjacent property owner might indeed be liable.
As for the City, it has adopted a 'prior written notice law' and so cannot be held liable for a defect within the scope of the law absent prior written notice, unless an exception applies. Under this law, a civil action generally may not be maintained unless written notice of the defect previously was given to the commissioner of transportation or some other authorized person or department.
There are two exceptions: (1) where the City created the defect or hazard through an affirmative act of negligence; and (2) where a special use confers a special benefit upon the City. The first exception is limited to work by the City that immediately results in the existence of a dangerous condition. Perhaps you will have the good fortune that these exceptions apply.
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
Tripping on the Sidewalk
Q: In New York City, in an area of the sidewalk near a fire hydrant, my foot became caught. I tripped and fell. This area is a rectangular depression with an irregular asphalt surface, the size of a sidewalk flag. In it, close to one edge, next to the curb, is this fire hydrant. In the past, the City had repaired the hydrant, and refilled the excavation with blacktop, but the sidewalk was never really smooth after that.
Q: In New York City, in an area of the sidewalk near a fire hydrant, my foot became caught. I tripped and fell. This area is a rectangular depression with an irregular asphalt surface, the size of a sidewalk flag. In it, close to one edge, next to the curb, is this fire hydrant. In the past, the City had repaired the hydrant, and refilled the excavation with blacktop, but the sidewalk was never really smooth after that.
A: In New York City, a statute shifts tort liability from the City to a commercial property owner for personal injuries proximately caused by the owner's failure to maintain a sidewalk abutting its premises in a reasonably safe condition. That statute seems to apply to the area at issue here, lying between the curb line and the property line and intended for the use of pedestrians.
At first glance, this defect in the sidewalk squarely falls within the definition of a substantial defect which is the property owner's duty to repair. However, the statute does not impose strict liability upon a property owner, and you have the obligation to prove the elements of negligence to demonstrate that the owner is liable.
Moreover, the owner will doubtless contend that, notwithstanding its duty to maintain the sidewalk in a reasonably safe condition, the statute does not shift tort liability where the sole proximate cause of the injury is a defect created by the City's affirmative act of negligence.
From all this, it appears that both the owner and the City will remain as defendants, well past the summary judgment stage.
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 © 2012-2019 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
Trouble on the Train
Q: One morning I my way to work, I was sitting in the commuter train. Suddenly, there was a loud noise, and a ceiling panel swung open. It struck me on the head. The next thing I remember is being on my knees with people all around me yelling.
Q: One morning I my way to work, I was sitting in the commuter train. Suddenly, there was a loud noise, and a ceiling panel swung open. It struck me on the head. The next thing I remember is being on my knees with people all around me yelling.
The other passengers have reported that the panel seemed to pop loose, came down on its hinge, swung down rapidly on the hinge and struck me in the head. It fell from the ceiling of the train and hit me directly on the head.
A: This case cries for application of the doctrine of res ipsa loquitur. That doctrine has three requirements. First, the accident must be of a kind that ordinarily does not occur in the absence of someone's negligence. Second, the event must be caused by something within the exclusive control of the defendant. Third, the accident must not have been due to any voluntary action or contribution on your part.
To rely on the doctrine of res ipsa loquitur, you need not eliminate the possibility of all other causes of the accident. It is enough that the evidence affords a rational basis for concluding that it is more likely than not that the injury was caused by defendant's negligence. When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident.
Possibly, the railroad will take aim at the second requirement: exclusive control, contending that the ceiling panel was in a publicly accessible area. In the event of this strained contention, your attorney will counter-attack that sole physical access is not necessary.
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 © 2014-2019 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
Tumbling Trays
Q: I was working as a tractor-trailer driver for a transportation company, transporting bread products among a bakery’s facilities. The bakery’s employees would place the bread on interlocking plastic trays, stack the trays 15-high on wheeled dollies, and load them onto our trailers. One day, I picked up a trailer of bread. Upon arriving at my destination, I opened the trailer door, removed the bar holding the dollies in place, and began unloading. All of a sudden, from the rack I was pulling, several trays fell and struck me.
Q: I was working as a tractor-trailer driver for a transportation company, transporting bread products among a bakery’s facilities. The bakery’s employees would place the bread on interlocking plastic trays, stack the trays 15-high on wheeled dollies, and load them onto our trailers. One day, I picked up a trailer of bread. Upon arriving at my destination, I opened the trailer door, removed the bar holding the dollies in place, and began unloading. All of a sudden, from the rack I was pulling, several trays fell and struck me.
Unlike trays that are held secure by a metal rod, these ones did not truly interlock with one another. The photos even show mismatched trays, of different colors – trays from different manufacturers with slightly different physical characteristics and dimensions, which would cause them not to nest properly within one another. All in all, I think that the trays had been improperly stacked by the bakery’s employees, so the trays were unstable. I have heard that other drivers had complained to the bakery about how the trays were stacked.
A: You appear to have a strong case both (a) that the bakery’s employees created the hazardous condition that caused your accident and (b) that the bakery had notice of a recurrent, dangerous condition with respect to the bread trays. Even if you cannot identify exactly what caused the trays to fall, that should not matter. Proximate cause may be inferred from the facts and circumstances. You are not required to exclude every other possible cause, but need only offer evidence from which proximate cause may be reasonably inferred. From what you tell me, it fairly appears that the bread trays fell from the dolly because the stack was unstable, and that the bakery is at 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 © 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
Un-helmeted on a Dirt Bike
Q: My dirt bike was designed for a single passenger and only for off-road usage. Still, one evening, my friend and I were riding it on a county road. Neither of us was wearing a helmet. This was noticed by a state trooper. As he pursued us in his marked vehicle, I accelerated down route.
Q: My dirt bike was designed for a single passenger and only for off-road usage. Still, one evening, my friend and I were riding it on a county road. Neither of us was wearing a helmet. This was noticed by a state trooper. As he pursued us in his marked vehicle, I accelerated down route.
Ultimately, the trooper caught up with us. He pulled parallel, with his lights and sirens activated, again gestured for me to pull over and then slowly repositioned his vehicle behind my bike. In response, I drove completely off route into an adjacent field to the right of the road. Soon, the trooper’s vehicle collided with both my dirt bike and my friend's ejected body.
A: The trooper's conduct in pursuing you may not form the basis of civil liability unless the trooper acted in reckless disregard for the safety of others. This standard requires the conscious or intentional doing of an unreasonable act in disregard of a known or obvious risk, so great as to make it highly probable that harm will follow, with conscious indifference to the outcome. I am skeptical that the trooper's conduct, particularly when gauged as of the time and under the circumstances in which he acted, was reckless.
Where a police officer perceives a vehicle and traffic law violation, that officer has the lawful authority to stop the individual to investigate. Your un-helmeted operation of the dirt bike was a threat to the safety of the public. The trooper had an obligation to follow you and remove your dirt bike from the highway. From what you have told me, it appears that the proximate cause of your friend’s demise was your operation of the dirt bike – not the manner in which the trooper may have conducted this pursuit.
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
Use of His Senses
Q: While riding my motorcycle, I was involved in a collision with a truck, at an intersection in the City. The witnesses agree that I had been traveling northbound, and he had been traveling eastbound. One says that I had stopped at the stop sign and looked both ways multiple times before proceeding into the intersection. Personally, I have no recollection. For traffic traveling on my street, the intersection was controlled by a stop sign. On his street, by nothing.
Q: While riding my motorcycle, I was involved in a collision with a truck, at an intersection in the City. The witnesses agree that I had been traveling northbound, and he had been traveling eastbound. One says that I had stopped at the stop sign and looked both ways multiple times before proceeding into the intersection. Personally, I have no recollection. For traffic traveling on my street, the intersection was controlled by a stop sign. On his street, by nothing.
Although the truck driver says that he never saw my motorcycle prior to the impact, the evidence shows that the front of his truck struck the center of my cycle.
A: The truck driver is likely to contend that you failed to yield the right-of-way, in violation of Vehicle and Traffic Law § 1142(a). Even if this is so, there can be more than one proximate cause of an accident.
A driver traveling with the right-of-way may be found to have contributed to the happening of the accident. Your attorney will seek evidence that the truck driver did not use reasonable care to avoid this tragedy – such as evidence of alcohol, cell phone usage or other driver distraction, or of speeding. He failed to see what was there to be seen through the proper use of his senses.
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
Use the Peephole
Q: My apartment is situated in a large complex. The doorbell rang. Thinking it was a friend, I opened the door without first looking through the peephole or asking who it was. A stranger forced his way in and dragged me to the bedroom. He took out his knife.
Q: My apartment is situated in a large complex. The doorbell rang. Thinking it was a friend, I opened the door without first looking through the peephole or asking who it was. A stranger forced his way in and dragged me to the bedroom. He took out his knife.
A: Although your opening the door without looking through the peephole, or inquiring, may indicate some contributory negligence, it is highly unlikely that this will be deemed an ‘independent intervening act’ that absolves the landlord entirely.
Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a stranger. A landlord has a duty to minimize the foreseeable danger from criminal acts when past experience alerts it to the likelihood of such criminal conduct.
Does knowledge of criminal activities occurring within a housing complex make injury in any one of the buildings foreseeable? As you realize, this depends on the location, nature and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.
Your attorney will need to show that the landlord negligently failed to exclude the stranger. Had the stranger been involved in other criminal acts in the complex? Had he previously been arrested on the premises? Did the landlord already have an arrest photo of him? Much discovery is needed to determine how foreseeable a risk this stranger was and what measures the landlord had in place to deal with creatures like him.
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
Violent Propensities
Q: In my store, there are several vending machines. The other day, someone appeared who I knew to be a truck driver’s helper for one of the vending companies. When he attempted to service the company’s machine, I questioned his authority to do so. The helper’s response was to strike me several times with a metal bar. The company says that my assailant had stolen the keys to the machine and has validated my hunch that he never was authorized to service it. I have learned that this was not the helper’s first crime. Twenty five years ago, he was convicted of some kind of felony, out of state. A few years ago, he was arrested here, on a misdemeanor drug possession charge. Of course, he is broke. But his company has what you attorneys call ‘deep pockets’. How’s my case against the company?
Q: In my store, there are several vending machines. The other day, someone appeared who I knew to be a truck driver’s helper for one of the vending companies. When he attempted to service the company’s machine, I questioned his authority to do so. The helper’s response was to strike me several times with a metal bar. The company says that my assailant had stolen the keys to the machine and has validated my hunch that he never was authorized to service it. I have learned that this was not the helper’s first crime. Twenty five years ago, he was convicted of some kind of felony, out of state. A few years ago, he was arrested here, on a misdemeanor drug possession charge. Of course, he is broke. But his company has what you attorneys call ‘deep pockets’. How’s my case against the company?
A: The company can be held liable vicariously only if the assault was somehow condoned, instigated or authorized by it. From what you tell me, there is no evidence to support this theory. In general, it is very difficult to prove that a violent attack, bad for business as well as for the victim, was somehow condoned by the employer. With regard to negligent hiring and supervision, our courts generally have held that an employer is under no particular duty to inquire as to whether a hiring prospect has been convicted of crimes in the past. In addition, even if the company had checked the helper’s background, hiring him despite it is not necessarily negligence. Your case with regard to negligent supervision may well turn out to be stronger. Perhaps interviews with other customers and other employers, and a look at the personnel file, will show that this is far from the first time that the helper has flashed his true colors in an ongoing arena. The company can be held directly liable if it knew or should have known of his violent propensities.
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
Visibly Intoxicated
Q: Late one Friday night, I began a visit to a tavern. A patron had left his liquor on the bar. He had taken his shirt off and was swaggering around. I felt that the guy must be intoxicated, and probably on drugs, too.
Q: Late one Friday night, I began a visit to a tavern. A patron had left his liquor on the bar. He had taken his shirt off and was swaggering around. I felt that the guy must be intoxicated, and probably on drugs, too.
My friends have told me that the bartender knew very well that this customer had been in jail and was always in trouble. He had a reputation for fighting in the street and at home. She knew that he had a temper that he puts into action. She knew that the guy lacked a tolerance for liquor.
All the same, the bartender poured him another shot of whiskey. Then the guy looked at me. He said, “whatcha you lookin’ at” and began to beat me.
A: Such behavior by a patron before an extra shot, and such knowledge on the part of a bartender, can establish that your assailant was served alcohol while he was ‘visibly intoxicated’. What is more, from what you say, it appears that a reasonable connection exists between the extra serving and the beating you suffered.
By ‘visibly intoxicated’, a lawyer means that the bartender should have known that your assailant would lack the tolerance for the second shot – that it would push him over the brink.
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
Visiting the Sick
Q: While visiting my friend at the hospital, I was asked by an X-ray technician to leave the room temporarily. I began to stand up from my chair. However, the armrest was loose, and also a footrest came out unexpectedly. I tripped and fell. Even a couple days later, visitors observed problems with that armrest and footrest.
Q: While visiting my friend at the hospital, I was asked by an X-ray technician to leave the room temporarily. I began to stand up from my chair. However, the armrest was loose, and also a footrest came out unexpectedly. I tripped and fell. Even a couple days later, visitors observed problems with that armrest and footrest.
A: Most likely, the hospital will contend that it did not have constructive notice of the defective chair: that the defects were not visible or apparent and had not existed long enough for the hospital’s employees to discover and remedy them. In this connection, the hospital will probably try to prove that its inspection practices were reasonable.
If the hospital has an employee testify, perhaps the employee was not a member of the department responsible for cleaning the patient rooms. Suppose the employee testifies that workers clean the rooms and inspect the chairs, and are supposed to make a report if they notice a problem with a chair. Your attorney will do his or her best to poke holes in this testimony: that it is vague, unsupported by other evidence, contradictory to the records and so forth.
Your attorney will also put great emphasis on the cardinal principle that evidence as to the hospital’s general policies does not amount to evidence that the policies had actually been followed at the time just prior to your accident.
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
Walking the Plank
Q: At a construction site, I was working in the area of an exterior parking lot. The concrete subcontractor had graded the ground and reinforced it with rebar in preparation for pouring concrete. I was walking across some worn wooden planks that were weak and sagged down. They were lined up end-to-end, but not connected, and had been there for at least three weeks preceding my accident. All of a sudden, one of them broke underneath me, entirely across.
Q: At a construction site, I was working in the area of an exterior parking lot. The concrete subcontractor had graded the ground and reinforced it with rebar in preparation for pouring concrete. I was walking across some worn wooden planks that were weak and sagged down. They were lined up end-to-end, but not connected, and had been there for at least three weeks preceding my accident. All of a sudden, one of them broke underneath me, entirely across.
The job superintendent and the site safety manager have denied that the general contractor placed the planks there, but they have admitted that the planks were thoroughly wet and rotten. They have said that they saw nothing dangerous before the accident, even though they both conducted regular inspections of the whole site. The site safety manager had inspected the area about an hour before I fell.
A: For you to succeed with a claim under section 241(6) of the Labor Law, your attorney will need to identify a violation of the Industrial Code. True, the Industrial Code states that the lumber used in the construction of equipment or temporary structures shall be sound and not contain any defects which may impair the strength of such lumber for the purpose for which it is to be used. However, the lumber here was not joined together: a court may well hold that nothing had been constructed from the planks so as to come within the ambit of the Code.
For you to succeed with a claim of common-law negligence, the defendants must have either created or had actual or constructive notice of the dangerous condition that caused your injuries. A defendant has constructive notice of a defect when (as seems to be the case here) it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected.
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 Scott Baron & Associates, P.C. All rights reserved. 159-45 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Avenue, Yonkers, NY 10710 (718) 738-9800, (914) 337-9800, 1-866-927-4878