Was it for Valentine’s Day?

Q: My fiancé gave me a ring. Afterwards, he called it a Valentine's Day gift. I prepared for the wedding, and he signed over half his house. Then he strolled by to say that it was all over. I became upset, he called the police and a squad of emergency medical personnel took me away. I responded to this unexpected change of scenery by calming down. The engagement has remained terminated. Is the ring mine, half his house? What about my deposit with the caterer?

Q: My fiancé gave me a ring. Afterwards, he called it a Valentine's Day gift. I prepared for the wedding, and he signed over half his house. Then he strolled by to say that it was all over. I became upset, he called the police and a squad of emergency medical personnel took me away. I responded to this unexpected change of scenery by calming down. The engagement has remained terminated. Is the ring mine, half his house? What about my deposit with the caterer?

A: In New York, anyone is entitled to recover property given in contemplation of a marriage, when it does not occur, and the courts are not interested in fault. No one can resist the return of an engagement gift by blaming the donor for the breakup. Gifts given in contemplation of the marriage are required to be returned.

Even though your former fiancé called the ring a Valentine’s Day present, don’t be too hopeful that the court will make an exception. There would be a number of evidentiary hurdles. For example, if the ring was expensive, was it insured? Who paid the premiums?

It is basically straightforward that your former fiancé gets back the ring and the whole of his house. Unfortunately, the law is far less settled as to restoring your outlay for the canceled wedding. Although the right approach might be to split this loss fifty-fifty, there are cases awarding more and cases giving less.

It is unfortunate that this chain of events led to your confinement for observation, but a claim of intentional infliction of emotional distress is always problematic. From your description, it does not come across that your former fiancé had a goal of getting you wrongfully confined. If one party feels that an engagement is not sound, then the courts do not want to intimidate him or her from communicating this to the other.

Last but perhaps not least, in these situations, a client often finds that the best approach is to find someone else to be his or her Valentine. However, a discussion of how to do so is far beyond the scope of this column.

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

Was it my Shoelaces?

Q: In front of the store, there was an area to walk around. While running toward the ice cream truck, I slipped and fell. My father says that I slipped on some loose and broken pieces of asphalt.

Was it Really a Rock?

Q: Two coworkers and I were carrying a metal pipe on our shoulders across a muddy surface. I tripped on an object that felt like a rock and lost my ability to support the pipe. This caused my coworkers to drop it. The pipe then jumped and hit me – on my left ear, neck and shoulder.

Was it the Oil?

Q: While bowling, I slipped and fell. I had seen beads of oil on my bowling ball before I fell, and fell in the area in which I released my bowling ball. The bowling-alley manager has admitted that beads of oil should not accumulate on the ball, and that their existence might indicate excessive oiling of the lanes. He has further admitted that the lanes had recently been oiled, and that sometimes the oiling machine would drip oil on the approach to the lane – so much that the oil needed to be wiped up with a rag. The accident report, which was prepared by the manager within 20 minutes of the accident, recites that I slipped on oil.

Q: While bowling, I slipped and fell. I had seen beads of oil on my bowling ball before I fell, and fell in the area in which I released my bowling ball. The bowling-alley manager has admitted that beads of oil should not accumulate on the ball, and that their existence might indicate excessive oiling of the lanes. He has further admitted that the lanes had recently been oiled, and that sometimes the oiling machine would drip oil on the approach to the lane – so much that the oil needed to be wiped up with a rag. The accident report, which was prepared by the manager within 20 minutes of the accident, recites that I slipped on oil.

A: Sometimes a defendant will prevail by submitting evidence that you cannot identify the cause of his or her fall without engaging in speculation. That does not seem likely here.

As you tell it, the only possible cause of your accident is the excessive amount of oil. You are not required to offer evidence which positively excludes every other possible cause of the accident. You need not eliminate every other possible cause. It is enough that you show facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.

In other words, the existence of remote possibilities that factors other than the oil may have caused the accident does not require that the defendant prevail. True, where there are two possible causes, and it is just as reasonable and probable that the injury was the result of the non-defendant cause, you cannot have a recovery. But that does not appear to be the case.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

Copyright © 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

Was It Trivial?

Q: In New York City, the right heel of my shoe became stuck in a crack on the sidewalk. I tripped and fell. Within minutes, my friend took photographs.

Washing His Clothes

Q: My husband is a blue-collar worker. His company issues five uniforms to a worker and offers a laundry service. If the soiled uniform is placed in the right cabinet at work, then it is cleaned.

Q: My husband is a blue-collar worker. His company issues five uniforms to a worker and offers a laundry service. If the soiled uniform is placed in the right cabinet at work, then it is cleaned.

About half of the time, my husband chose to come home in his dirty clothes. This was for reasons of convenience and also because there were no showers available at work. At home, you can guess who washed them.

Eventually, we learned that my husband was handling products that contain asbestos. Today, my doctor had some news.

A: Meritorious as your claim appears to me, the most recent case in New York goes squarely against it. The courts are concerned about limitless liability.

Traditionally, the law requires a direct relationship between the wrongdoer and the victim. Here, there exists no direct relationship between the employer and you. I accept your tragic story as true, but courts cannot always be so accepting. If the wife of an employee can sue, what about a good friend, or a casual one, or a laundry worker?

As courts like to see it, the specter of ‘limitless liability’ is banished only when the class of potential plaintiffs is circumscribed by the relationship. Here, there is no direct relationship, and that is where the courts have traditionally drawn the line.

Asbestos-related disease caused by secondhand exposure may be relatively uncommon. However, the courts are obliged to be concerned about an enormous number of fake claims, overwhelming the system. To the extent that lawsuits should be permitted for secondhand exposure, the courts have asked that the green light come from Congress or the legislature.

Nevertheless, take this case to a lawyer. Your situation cries out for justice. Perhaps, there is a detail that you have omitted from telling me – e.g., a favorable contract negotiated by a union.

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

Watch Your Step

Q: With my grandson, I went to a restaurant for lunch. The hostess placed us in a booth that was elevated on a platform. The platform is six inches higher than the floor level. We reached it by a step. The two of us stayed in the booth for an hour, eating and talking. As we left, I had forgotten about the step, and I fell.

Q: With my grandson, I went to a restaurant for lunch. The hostess placed us in a booth that was elevated on a platform. The platform is six inches higher than the floor level. We reached it by a step. The two of us stayed in the booth for an hour, eating and talking. As we left, I had forgotten about the step, and I fell.

A: If you sue, your attorney is likely to allege that the restaurant was negligent in failing to remove an unreasonably dangerous condition, i.e., the raised seating booth, and negligent in seating you in it. The point will be made that the restaurant was aware of that unsafe condition and breached a duty to warn you. The restaurant will respond that your injury resulted from a condition that was open and obvious.

The law calls you a “business invitee”. The restaurant owed you a duty of ordinary care – maintaining its premises in a reasonably safe condition, so that you would be free from dangers that are unreasonable. A business is not an insurer of your safety, though it should warn customers about dangers that are hidden (which this apparently was not). The restaurant has no duty to protect you from dangers that are so obvious and apparent that you may reasonably be expected to discover them.

In a slip and fall, the ‘attendant circumstances’ create an issue as to whether the danger was open and obvious. Attendant circumstances include any distraction that would divert your attention. In short, attendant circumstances are all facts relating to a situation, such as time, place, surroundings, and other conditions that increase the risk.

Your attorney will argue that the ‘attendant circumstances’ included being in this booth for over an hour and forgetting about the step. But please understand that cases like this have a very hard time in succeeding. No one should count on victory. The best advice is: always try very hard to remember the step that you saw an hour ago.

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

Water on My Boat

Q: On the swim platform of my boat, while it was docked at a marina, I slipped on some funny-colored water. It turned out to be overflow water from an artesian well system. The water had been discharged by a pipe, right onto my boat. I suppose I should sue the owner of the marina. Should I also sue the contractor that constructed the artesian well system? What about the subcontractor that installed the pipe?

Q: On the swim platform of my boat, while it was docked at a marina, I slipped on some funny-colored water. It turned out to be overflow water from an artesian well system. The water had been discharged by a pipe, right onto my boat. I suppose I should sue the owner of the marina. Should I also sue the contractor that constructed the artesian well system? What about the subcontractor that installed the pipe?

A: The contractor will argue, “Don’t sue us. Sue the subcontractor.” The contractor will contend that it did not control the subcontractor's work. One who employs an independent contractor has no right to control the manner in which the work is to be done. The risk of loss is more sensibly placed on the independent contractor. Control is the critical factor.

The owner of the marina will argue that the condition of the water flowing from the pipe was not inherently dangerous. Indeed, it was open and obvious. Granted, the owner had a duty to maintain the marina in a reasonably safe condition. Nevertheless, it had no duty to protect or warn against an open and obvious condition, which as a matter of law was not inherently dangerous. The owner may also argue that you had assumed a risk inherent in the recreational activity of boating.

Whether the slippery water was open and obvious cannot be divorced from the surrounding circumstances. Was the condition in any way obscured? For some acceptable reason, were you distracted? The owner may call this water a condition that was ordinarily apparent to a person making reasonable use of his senses. In the hands of your attorney, let us hope the jury will call the water a trap for the unwary.

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

Water, Water Everywhere

Q: One afternoon, while going down the stairs in the building where I live, I slipped and fell. From the traffic over the generations, every stairway step has a depression in it, capable of holding water. Because the steps are made of marble, any liquid is difficult to see.

We Can Help You

Q: My cousin reported me to family members, and my mother took us to a hospital, where the police were called. Then we were taken to a child advocacy center, where a detective brought my mother and me to a juvenile interview room. She explained the allegations and read Miranda warnings to me in English and to my mother in Spanish, according to our preferences.

Q: My cousin reported me to family members, and my mother took us to a hospital, where the police were called. Then we were taken to a child advocacy center, where a detective brought my mother and me to a juvenile interview room. She explained the allegations and read Miranda warnings to me in English and to my mother in Spanish, according to our preferences.

Each time one of the rights was stated, I responded, without hesitation, that I understood the right; the same was true of my mother. She also reread the warnings herself, and we both signed the Miranda waivers. After I consented to talk with the detective alone, my mother agreed and left the room. I admitted to my cousin’s allegations.

The detective told me that, if I was truthful and told everything that had happened, I could receive psychiatric help or counseling. Then she left the room. In a handwritten statement, which I composed while alone, I admitted to a series of these contacts with my cousin. My mother and I were reunited, and I read my confession to her. I was then arrested.

A: The Family Court Act does not give a child under 16 years the absolute right to the presence of a parent during interrogation. In fact, the Act expressly contemplates the possibility that the police may be unable to contact the parent of a child in custody, despite every reasonable effort, or that a notified parent may be unable or unwilling to be present at the location of custody.

From what you have told me, it seems likely that your confession will be upheld as voluntary. The detective’s promising help does not mean she was offering an incentive to lie. After all, there should be no attraction in making a false confession and receiving psychiatric assistance relating to a crime that you never committed.

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

We Didn’t Buy

Q: My husband and I were attending an open house. While the owners greeted other potential buyers, we went upstairs to take a second look at the small bedroom adjacent to the deck. We went out onto the deck through the sliding glass door. Although the wood looked weathered, I did not observe anything rotting or decaying or deteriorating or unstable.

Q: My husband and I were attending an open house. While the owners greeted other potential buyers, we went upstairs to take a second look at the small bedroom adjacent to the deck. We went out onto the deck through the sliding glass door. Although the wood looked weathered, I did not observe anything rotting or decaying or deteriorating or unstable.

After a couple of minutes, I heard a lot of creaking and crackling, and saw the deck separating from the house. Then, the deck collapsed, along with me. As I fell, I observed my husband dangling, although he himself did not fall.

After the accident, a fire marshal prepared an incident report. He stated that the deck was secured only by 12 large framing nails that were nailed into the deck and were secured into the side of the dwelling through the house’s vinyl siding, and added that the improperly installed deck was the single factor that contributed to the collapse.

It turns out that, while the architectural drawings required four vertical posts to be placed at each corner of the deck, embedded in a concrete footing, there were none. The owners say that they were not involved in the construction work. And, because of the way that contractor had covered the underside of the deck, they could not know how the deck was attached to the house.

A: If the defect in the deck was latent, not readily observable, and could not be discovered by the owners upon a reasonable inspection, then they could not have constructive notice of the defect, and seemingly would not be liable. However, the contractor can certainly be held liable to you if it negligently created a dangerous condition by launching an ‘instrument of harm’. Your attorney will argue that the contractor launched an instrument of harm by negligently constructing this deck.

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

What is Hearsay?

Q: Iron bars came loose at an amusement park, while I was bending over to board a ride. They fell upon my head, back and shoulder. With the help of my husband, I walked away to the first aid station. We stopped two employees and told them what had happened. They went off to take a look.

Q: Iron bars came loose at an amusement park, while I was bending over to board a ride. They fell upon my head, back and shoulder. With the help of my husband, I walked away to the first aid station. We stopped two employees and told them what had happened. They went off to take a look.

A few minutes later, the two came over to the station. One of them reported that a screw had broken. The other said, “We tried to fix it yesterday, but that darn thing must have broken again.” I say this proves the park was at fault. My friend says it doesn’t matter what the employees said.

A: Bring these employees to the trial. Give the jury a chance to decide for itself why they said what they said. Generally, you are not permitted merely to quote their statements. After all, perhaps the employees merely had a grudge against the park. Our legal system is very very careful when it comes to hearsay.

One might ask whether each statement is a ‘spontaneous declaration’ – admissible as an exception to the hearsay rule. However, the speaker of a spontaneous declaration must be under the stress of excitement. This might be the case, for example, if an employee had seen your accident and shrieked out right away. In your case, too much time had passed.

Even if these employees have vanished, all is not lost. Your attorney can probably get equivalent evidence a better way: he or she can obtain the maintenance records, depose the management of the park and hire an expert to inspect the scene. If need be, the attorney can even manage to locate and subpoena these employees. Either way, you deserve to win, and the loss of a bit of hearsay is not likely to stop 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 © 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

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