An Unpleasant Plank
Q: I was working for a demolition contractor. Somebody had removed a sidewalk and laid a piece of plywood on the ground. Now, I was pushing a cart of concrete across the plywood. It flexed, causing me and the cart to fall into a hole or trench that was three-feet wide and three-feet deep – part of which was underneath the plywood, and part adjacent.
Q: I was working for a demolition contractor. Somebody had removed a sidewalk and laid a piece of plywood on the ground. Now, I was pushing a cart of concrete across the plywood. It flexed, causing me and the cart to fall into a hole or trench that was three-feet wide and three-feet deep – part of which was underneath the plywood, and part adjacent.
A: First, section 240(1) of the Labor Law, more commonly known as the scaffold law, might be of use. Your attorney may wish to argue (a) that the plywood was, under the circumstances, the functional equivalent of a scaffold, meant to prevent you from falling into this hole, (b) that the three-foot difference between the surface of the plywood and the bottom of the hole was ‘physically significant’, and (c) that your injuries were the direct consequence of the defendants’ failure adequately to protect you against the three-foot difference in elevation.
Second, section 241(6) of the Labor Law provides that all areas 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. Your attorney will need to show a violation of a specific safety regulation promulgated by the Commissioner of the Department of Labor – such as 12 NYCRR 23-1.22(b), which concerns structural runways, ramps, and platforms.
Third, section 200 of the Labor Law is a codification of the common-law duty to provide workers with a safe work environment. Here, your attorney will seek to show that the operator of the premises and the general contractor each had (a) the authority to supervise or control the performance of your work and (b) some kind of ‘notice’ of the dangerous flexing condition of the plywood, e.g. arising from its having been in place for an appreciable amount of time.
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
An Unsound Sonogram
Q: The technician and I were alone in the examination room. The sonogram began: the technician inserted a sonogram probe and aimed-in sound waves, and they bounced off my walls giving a picture. Then I realized that he was doing something else.
Q: The technician and I were alone in the examination room. The sonogram began: the technician inserted a sonogram probe and aimed-in sound waves, and they bounced off my walls giving a picture. Then I realized that he was doing something else.
In retrospect, I think that the hospital should have required the presence of a female staff member during this procedure, as an examiner or chaperone.
A: In this general kind of case, it is helpful to have the opinion of a qualified expert that your injuries were caused by a deviation from relevant industry standards. However, if the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion loses force as proof.
An expert has to do more than cite the guidelines of some professional organization. Even if he or she cites something called ‘rules’, the expert must provide a factual basis for any conclusion that these rules establish or are reflective of a generally-accepted standard or practice in hospital settings.
Precisely because your case is (one hopes) unusual, it may be that a chaperone is generally not the practice. You may well have an excellent case based on other theories, such as negligent hiring, but the chaperone theory itself is problematic.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
An Unstable Ladder
Q: One day, I got a call from Barry, offering me work. We arrived at the premises, a one-story building that appeared to contain a car repair business. Engines, car parts and pallets were strewn all over the floor.
Q: One day, I got a call from Barry, offering me work. We arrived at the premises, a one-story building that appeared to contain a car repair business. Engines, car parts and pallets were strewn all over the floor.
Barry instructed me to remove old pipes and other items hanging from the ceiling. He gave me an A-frame ladder. The presence of the pallets and engines prevented me from placing the ladder squarely on the cement floor, so I put part on the cement floor and the other part on a pallet. No one held the ladder steady.
After less than five minutes, I tumbled off. Barry took me in a van to the hospital, screaming out in pain as the vehicle hit bumps.
A: An owner of commercial property is liable for a violation of Section 240(1) that proximately causes injury to a worker, even though a tenant of the building contracted for the work without the owner's knowledge. Section 240(1) of the Labor Law imposes a non-delegable duty on the commercial owner – even when the job is performed by a contractor the owner did not hire and of which it was unaware, and therefore over which it exercised no supervision or control.
Failure properly to secure a ladder to insure that it remains steady and erect constitutes a violation of section 240(1). So long as a violation of the section proximately results in injury, the owner's lack of notice or control over the work is not conclusive. There is strict liability in this context.
On the other hand, unless the owner had actual or constructive notice of this dangerous condition, or either directed or controlled your work, you cannot prevail against it on a claim of common-law negligence or 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 © 2014-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878
An Unwelcome Mat
Q: While exiting a public school, after voting there, I tripped and fell over a rolled up mat. It was positioned several feet in front of the door inside the school. The power had failed. Only a few emergency lights were working. An incident report prepared shortly after my accident commented that the area where I fell was ‘dark’ due to the power loss.
Q: While exiting a public school, after voting there, I tripped and fell over a rolled up mat. It was positioned several feet in front of the door inside the school. The power had failed. Only a few emergency lights were working. An incident report prepared shortly after my accident commented that the area where I fell was ‘dark’ due to the power loss.
A: A defendant has constructive notice of a defect when the defect is visible and apparent and has existed for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it. The school may wish to argue that the power outage furnishes an excuse from liability, but I doubt that the school can muster sufficient evidence to support that argument.
A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim. The notice of claim must set forth information including the nature of the claim, and the time, place, and manner in which the claim arose. The notice of claim must include information sufficient to enable the municipality to investigate the claim.
There are time limits to a notice of claim, so be sure to see an attorney right away. Indeed, that is my advice with regard to any potential lawsuit, not just against a municipality.
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
Anchors Away
Q: One day, I tripped over a metal traffic object protruding four inches above the sidewalk. Originally, the purpose of the object had been to anchor a temporary sign post. Both post and anchor had been installed by the state, as part of a reconstruction project. Afterwards, the state had removed the post, but not the anchor.
Q: One day, I tripped over a metal traffic object protruding four inches above the sidewalk. Originally, the purpose of the object had been to anchor a temporary sign post. Both post and anchor had been installed by the state, as part of a reconstruction project. Afterwards, the state had removed the post, but not the anchor.
Together with my husband, I have filed a notice of claim against the city, alleging that its negligent maintenance of the sidewalk caused this very hazardous condition. The city is saying that we can do nothing, since it did not have prior written notice of this defect or obstruction.
A: With exceptions that do not appear to apply, a prior written notice statute limits a city's duty of care over municipal streets and sidewalks, by imposing liability only for those defects or hazardous conditions as to which its officials have actually received written notice. This comports with the reality that a city cannot be expected to be aware of every pothole and other dangerous condition on its streets and public walkways.
In many places, lawyers’ organizations have formed corporations whose sole purpose is to check for sidewalk, curb and crosswalk defects and then provide the written notice, in advance. In this way, their brethren will be able to go forward with cases, once they occur. One lawyer writes a statute, and another finds a way to live with it. My thought is that perhaps you can do better in suing the state.
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
Another Left Turn
Q: My car was traveling eastbound on a highway and attempted to make a left turn across the westbound lanes in order to enter a shopping center. Instead, my car collided with a truck, which was traveling westbound. I later pleaded guilty to a violation of Vehicle and Traffic law § 1141, for failing to yield the right-of-way.
Q: My car was traveling eastbound on a highway and attempted to make a left turn across the westbound lanes in order to enter a shopping center. Instead, my car collided with a truck, which was traveling westbound. I later pleaded guilty to a violation of Vehicle and Traffic law § 1141, for failing to yield the right-of-way.
I was stopped for approximately two minutes in the turning lane while waiting for cars to exit the shopping center and saw no oncoming traffic – before I initiated the left turn, with my signal light activated. The truck was traveling about 60 mph. Roughly five seconds elapsed between the time I observed the truck and the impact.
The truck driver says that he was traveling at the posted speed limit of 55 mph, but that he slowed down to 50 mph and took his foot off the accelerator when, approximately 500 feet away, he observed a line of vehicles exiting from the shopping center. He claims to have observed my vehicle stopped in the left-turn-only lane facing him and then roll forward at approximately 2 to 3 mph without a turn signal on. According to the truck driver, when he was about 100 feet from me, I abruptly entered his lane, giving him only 1.5 seconds in which to brake and steer to the right.
A: Although your plea of guilty to failure to yield is evidence of your negligence, it does not preclude a finding that the truck driver, perhaps even more, was at fault. Your attorney will hope to show that the truck was traveling at an excessive speed. Possibly, the skid mark left by the truck driver’s vehicle indicates that, in fact, he did not slow down when he saw or approached the traffic at the intersection. With the right evidence, you may well be able to convince a jury that the truck driver should have been able to stop within the amount of time it took you to cross his lane of travel.
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
Arbitrating With The Advisor
Q: On an investment fund recommended by my dealer, I suffered losses. I commenced an arbitration proceeding. There, I assert claims against my dealer and a sister company that served as investment adviser for the fund, but with which I have no agreement to arbitrate. The advisor is seeking to be dropped from this arbitration.
Q: On an investment fund recommended by my dealer, I suffered losses. I commenced an arbitration proceeding. There, I assert claims against my dealer and a sister company that served as investment adviser for the fund, but with which I have no agreement to arbitrate. The advisor is seeking to be dropped from this arbitration.
I say that the advisor is bound to arbitrate. The pre-investment arbitration agreement between the dealer and me makes reference to affiliates of the dealer. Surely, the advisor is affiliated! They were marketing themselves as coordinated entities. Can’t we say that the dealer was acting as agent of the advisor?
A: There is a distinction between signatories who are willing to arbitrate and non-signatories who are not. Arbitration is a matter of contract. No one can be required to submit a dispute to arbitration, unless he or she is already bound by some contract. To succeed, you will need to offer specific evidence tending to show that, when the arbitration agreement was signed, this dealer was acting on behalf of the advisor.
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
Arbitration Anguish
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: In a two-car collision, I injured my shoulder. My insurer denied my claim for no-fault benefits. After the hearing in our arbitration proceeding, but before the decision, I settled my lawsuit against the other driver, for his policy limit, and now was able to make a second claim with my own insurer – for supplementary uninsured/underinsured motorist (SUM) benefits. The insurer denied that, too, and I commenced a second arbitration proceeding, on the SUM claim.
Before the hearing in the SUM arbitration, the no-fault arbitrator found in my favor. Although I introduced his decision, the second arbitrator refused to be bound by it. Instead, the SUM arbitrator issued an award in favor of the insurer. In a finding diametrically opposite to that of the no-fault arbitrator, the SUM arbitrator concluded that my injury was not even caused by the accident.
A: Unfortunately, the fact that a second arbitration decision is not consistent with the first one is not a ground for vacating the second decision. It was within the SUM arbitrator's sole discretion to determine whether the no-fault decision made it impossible for you to lose now. The SUM arbitrator was not even required to state that he had considered your impossibility argument.
Unlike a trial court's rulings, an arbitrator's are largely not reviewable. The question as to whether a prior award constitutes a bar to the relief sought is within the exclusive province of the arbitrator. If a court makes an error and fails properly to rule on such an issue, the ruling can be reviewed and corrected on appeal. By contrast, even if an arbitrator errs, the general limitation on judicial review of arbitral awards bars a court from disturbing the decision unless the resulting arbitral award violates a strong public policy, is irrational or clearly exceeds a specifically-enumerated limitation on the arbitrator's power.
Unless the SUM arbitration award was patently irrational or so egregious as to violate public policy (which from these facts seems unlikely) that award is beyond the review powers of a court.
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
Arthur’s Night Out
Q: At about midnight, the rear of my automobile was involved in an accident. I was not in it. The car was occupied by my friend and part-time driver, Arthur, and by a woman named Theresa, who was driving.
Q: At about midnight, the rear of my automobile was involved in an accident. I was not in it. The car was occupied by my friend and part-time driver, Arthur, and by a woman named Theresa, who was driving.
Earlier in the evening, I had been at a race track, and Arthur had driven me home. I pay him from time to time to do this. After I got out, I told Arthur to take my daughter-in-law home, and then to take her boyfriend home. I told Arthur nothing else than to do that.
I do not know Theresa, and neither had Arthur. He says that he saw her smiling at him. He thought he knew her, and stopped the car, and let her in. She asked him to take her home. First, Arthur drove the car. Then his new friend wanted to drive it. She said she was an expert, and he allowed her.
A: Arthur was supposed to be working for you. Your attorney will contend that Arthur was not engaged in your business at the time of the accident. Whether an employee or merely a friend, he had never received any general permission to use the car, and you had never given Arthur permission to entrust any one else with the driving or management of the vehicle. His duty was to return at once.
It appears that Arthur’s flirtation with a chance passer-by led him to invite her to enter the car. He then departed entirely from his responsibilities and any scope of your permission, and was engaged on an expedition for his own purposes and pleasure, when the accident occurred under the guidance of his new friend.
Your attorney will argue that, under these circumstances, you cannot be held liable. However, your attorney must then fend off a number of serious counter-questions: such as, had Arthur ever done this before?
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
Bad Bananas
Q: Delivering groceries, I walked up the stairway and left it for at most five minutes. Going up, I had observed no banana peel. Going down, I slipped and fell on one. Do I have a case?
Q: Delivering groceries, I walked up the stairway and left it for at most five minutes. Going up, I had observed no banana peel. Going down, I slipped and fell on one. Do I have a case?
A: You have the burden of proof: photos are always of use. Liability may be imposed if the owner had actual notice of this banana peel or that time-after-time the stairway was littered. Liability may also be imposed if the banana peel was visible and had been there for a sufficient length of time prior to your accident to permit the owner's employees to discover and remove it. No court will permit a jury to find that five minutes suffices to prove this constructive notice.
Perhaps you believe that you first saw no banana peel merely because the lighting was poor. If the theory is constructive notice, poor lighting does not excuse you from proving how long the peel had been there. A stronger theory might then be the owner’s negligence in lighting-up the stairs. You still have to bring proof of this darkness, too. Even if you do, the owner is sure to argue that you contributed to the negligence by assuming the risk of using those stairs.
There is also a question as to precisely why you believe that a banana peel was the cause. Suppose that, after the fall, a strip of banana skin was found adhering to your shoe. Suppose further that, just before entering the building, you had walked past a produce stand. The owner is sure to look for an expert witness who will give an opinion that you picked up the banana peel there.
In this or any other negligence case, your attorney’s job is to marshall all the evidence and to develop all the theories that you need to win. Your case may well be worth the effort.
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
Balcony Without a Railing
Q: At a house, I was performing demolition work. The owner had directed us to throw nothing out of the windows. Instead, we were to throw all debris from a balcony. It had no railing. I needed to toss out a door. As I did so, a piece of the door caught my clothing. This caused the weight of the door to pull me over the ledge of the balcony. I fell 14 feet, onto the ground below.
Q: At a house, I was performing demolition work. The owner had directed us to throw nothing out of the windows. Instead, we were to throw all debris from a balcony. It had no railing. I needed to toss out a door. As I did so, a piece of the door caught my clothing. This caused the weight of the door to pull me over the ledge of the balcony. I fell 14 feet, onto the ground below.
A: An initial question that your lawyer must decide is whether to argue that the homeowner is liable under sections 240 and 241 of the Labor Law. These sections provide an exemption for owners of single and two-family houses. However, the exception does not apply where the homeowner ‘directs or controls’ the work being performed. This depends upon the degree to which the owner supervised the method and manner of your work. It seems to me that this owner indeed exercised sufficient direction and control.
Your attorney also is likely to argue that the homeowner is liable under section 200 of the Labor Law. Section 200 is the statutory equivalent of the common-law duty of landowners and general contractors to provide workers with a reasonably safe place to work.
If we say that you were injured as a result of a dangerous condition, the owner’s liability under section 200 rests upon whether he or she created the condition, or had actual or constructive notice of it and a reasonable amount of time within which to correct the condition.
If we say that you were injured as a result of dangerous equipment, the owner’s liability under section 200 rests upon whether he or she had the authority to supervise or control the means and methods of the work.
A balcony without a railing was certainly a dangerous condition and arguably dangerous equipment. Either way, you appear to have ample proof. This owner both (1) knew or should have known of the dangerous condition and (2) had the authority to require you to use some safety equipment.
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
Batter Up
Q: I was only 16. During an elective softball class, as a warm-up exercise, I was hitting ground balls to a fielder. A new student named Juliet approached me and asked if she could hit a few. I handed the bat to Juliet and told her, “This is just a practice drill, and don’t take full swings.” However, Juliet immediately threw the ball in the air and took a full swing before I had time to get out of the way.
Q: I was only 16. During an elective softball class, as a warm-up exercise, I was hitting ground balls to a fielder. A new student named Juliet approached me and asked if she could hit a few. I handed the bat to Juliet and told her, “This is just a practice drill, and don’t take full swings.” However, Juliet immediately threw the ball in the air and took a full swing before I had time to get out of the way.
A: The school will argue that you assumed the risk that resulted in your injury: that a participant in an athletic activity is deemed to have assumed those commonly appreciated risks which are inherent in the sport and flow from your participation. Its attorneys will contend that the danger of one person’s swinging a bat into another’s face while warming up for the game is inherent. Despite your tender age, if you were an experienced softball player, then there is a substantial likelihood that you will be found to have taken this risk upon yourself. Your attorney will need to dig deep. Perhaps, in truth, the accident resulted from some unassumed, concealed or increased risk from which your teacher should have been protected you. Perhaps the school knew or should have known what you did not – for example, that Juliet had severe behavioral problems. Even if you can clear the hurdle of assumption of the risk, your attorneys will still need to build a case that the school engaged in negligent supervision. Only a few seconds elapsed between your giving the bat to Juliet and this tragedy. Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, the court may hold that lack of supervision cannot be the proximate cause of the accident. On this case more than many, your attorney must work very hard.
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