Batter Up, Pitcher Down
Q: My daughter was injured while participating in junior-varsity softball-team batting practice for her high school, under the direct supervision of her coach, on the school's grounds. The coach had instructed all pitchers, like my Petunia, to be closer to home plate, than to the pitching mound – in order to throw a quick succession of pitches.
Q: My daughter was injured while participating in junior-varsity softball-team batting practice for her high school, under the direct supervision of her coach, on the school's grounds. The coach had instructed all pitchers, like my Petunia, to be closer to home plate, than to the pitching mound – in order to throw a quick succession of pitches.
Although the team was using a protective pitching screen, it was not freestanding. Rather, the screen was propped up between two benches and had fallen down several times during the batting practice. Near the end of batting practice, the screen fell again while Petunia was pitching. The coach directed no one to put it back up. “Leave it on the ground.” After consulting with the coach, Petunia threw another pitch. It was hit back at Petunia and struck her in the face.
A: Pursuant to the doctrine of ‘primary assumption of risk’, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in, and arise out of, the nature of the sport generally and flow from such participation. Under this doctrine, if the risks of the activity are fully comprehended or perfectly obvious, then it is held that the plaintiff has consented to them.
However, the primary assumption of risk doctrine does not serve as a bar to liability if the risk is un-assumed, concealed or unreasonably increased. Awareness of risk is not to be determined in a vacuum. Rather, it is to be assessed against the background of the skill and experience of the particular plaintiff.
Your attorney will argue, convincingly, that there is no way that the faulty equipment provided by the school and the decreased distance between Petunia and the batter, from which she was pitching at the direction of the coach without the benefit of the screen, represent risks that are inherent in the sport of softball.
Under the circumstances of this case, the doctrine of primary assumption of risk certainly is not applicable and does not operate to bar recovery. Petunia had been specifically instructed by her coach to pitch, without the benefit of the screen, closer to home plate than is the standard distance for pitching in the sport of softball. She cannot be said to have assumed the tragic risk of being hit in the face by this line drive.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2013-2020 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
Beads
Q: After swimming, I walked down the matted corridor toward the locker room. At the end of the corridor, the matting ended. Before stepping off the matting, I looked down but saw no water. When I stepped onto the tiles, I slipped and fell. While on the floor, I saw beads of water on the tile. In the area of my fall, there were no wet floor warning signs.
Q: After swimming, I walked down the matted corridor toward the locker room. At the end of the corridor, the matting ended. Before stepping off the matting, I looked down but saw no water. When I stepped onto the tiles, I slipped and fell. While on the floor, I saw beads of water on the tile. In the area of my fall, there were no wet floor warning signs.
Near to that area, there was a drain in the floor, and towels were often used to sop up excess water. I believe that the maintenance staff would mop the locker room every 15 to 20 minutes.
A: Your attorney will argue that, because you were neither in the pool area nor in the shower area, water was not ‘necessarily incidental’ to the intended use of the area where you fell. What is more, the need for towels suggests that there was a defective condition and that staff failed to mop up water with sufficient frequency.
The pool’s attorney may well take aim at your use of the word ‘beads’, arguing that mere beads, on the floor of a locker room serving a swimming pool – and containing showers, sinks, a steam room, and a sauna – was necessarily incidental to the locker room’s intended use and cannot possibly support a cause of action for negligence.
When had the area last been mopped? Is there a written schedule? A written confirmation? Can a worker remember? If not, your case gets stronger. Your objective is to show that your injury was caused by a hazardous condition of which the defendant had actual or constructive notice.
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
Better to Proceed than to Pause
Q: On a clear, sunny morning, I was driving my motorcycle downtown. Along my route, a police officer in pursuit of a robber had come to a stop at a red light at an intersection – with his lights and siren on. A bus was approaching the intersection, with the green light in its favor. The bus driver stopped, his eyes met those of the officer, and the bus driver signaled that the officer could proceed, waving the officer through the intersection. After the officer drove his police car into the intersection, he waited there for about 15 seconds, and turned off his siren, in case the robber would run into view. After this pause, the officer proceeded forward, still against the light, and without reactivating his siren or checking for oncoming traffic, such as me.
Q: On a clear, sunny morning, I was driving my motorcycle downtown. Along my route, a police officer in pursuit of a robber had come to a stop at a red light at an intersection – with his lights and siren on. A bus was approaching the intersection, with the green light in its favor. The bus driver stopped, his eyes met those of the officer, and the bus driver signaled that the officer could proceed, waving the officer through the intersection. After the officer drove his police car into the intersection, he waited there for about 15 seconds, and turned off his siren, in case the robber would run into view. After this pause, the officer proceeded forward, still against the light, and without reactivating his siren or checking for oncoming traffic, such as me.
A: Certainly, you have a case against the City based on the conduct of the police officer. The only question is whether you have a claim against the Transit Authority based on the conduct of the bus driver. In appropriate circumstances, a driver may incur a duty to another by gesturing that it is safe to cross the road, with liability extending to all those reasonably within the ambit of potential injury, even third parties. However, the bus driver’s gesture was not a proximate cause of your accident. The officer did not rely on the gesture in deciding to proceed into the portion of the roadway where he collided with you. Rather, the officer relied on the gesture only to the extent of proceeding into the area directly in front of the bus, where he paused and looked around. He did not and could not reasonably rely on the gesture to presume that, after pausing, it was still safe to proceed.
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
Between a Rock and a Pebble
Q: I was attending a party. Smokers were required to go out to the back yard. The yard was very dark, and strewn with pebbles, sticks and rocks. Something which I could not see got caught between my heel and the rest of my shoe. I fell.
Q: I was attending a party. Smokers were required to go out to the back yard. The yard was very dark, and strewn with pebbles, sticks and rocks. Something which I could not see got caught between my heel and the rest of my shoe. I fell.
A: Your host will probably contend that his yard was not at all hazardous, and that, even if it was, he neither created whatever condition caused your fall nor had notice of it. In addition, he will protest that you have failed to be precise about the cause.
Your attorney will look for evidence that, although you could not see the cause beforehand, perhaps you or someone else did afterwards. Indeed, contemporaneous sight is not the only way of identifying the cause. For example, perhaps you felt a particular feeling under your foot immediately prior to falling, and an expert can connect that feeling to an object that was at the spot.
While you are not permitted to speculate as to the cause of your accident, causation may nevertheless be established by circumstantial evidence. For a case based on circumstantial evidence, you need not positively exclude every other possible cause. Rather, you need only render other causes sufficiently unlikely to enable the jury to reach its verdict based upon the logical inferences to be drawn from the evidence.
If the cause was indeed a pebble or rock, then your host will have a hard time establishing that he lacked notice. Moreover, having directed guests to use the back yard as a smoking area, your host had a duty to provide adequate illumination, which apparently he did not.
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
Beware Thanksgiving Shoppers
Q: A week before Thanksgiving, our local supermarket was giving away small samples of pumpkin pie topped with whipped cream. The samples had been set on a tray; they were given to customers. My wife and I were shopping there. I slipped and fell on one of these pieces of pie – in an aisle seven feet away from the trays of samples. I was injured. My friend had been there earlier, and even then he saw pie and cream on the floor. Do I have a case?
Q: A week before Thanksgiving, our local supermarket was giving away small samples of pumpkin pie topped with whipped cream. The samples had been set on a tray; they were given to customers. My wife and I were shopping there. I slipped and fell on one of these pieces of pie – in an aisle seven feet away from the trays of samples. I was injured. My friend had been there earlier, and even then he saw pie and cream on the floor. Do I have a case?
A: We are talking the law of a ‘foreign substance’. If an outsider had brought the piece of pie into the store, then the law would give the store some time. Jury and judge would ask whether the problem had existed for such time and manner that, in due care, the store should have known about the piece of pie, and should have cleaned it up. In this case, however, it appears that the problem was created by the store itself, and so the focus is less upon time. As you may well know, a store is required to exercise due care and prudence for the safety of its customers. The law makes inquiries from the standpoint of foresight and not hindsight. The basic question is, “Should a store be expected to take further precautions to avoid injury to its customers?”
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
Black Ice
Q: One Saturday morning, on my way to work, I slipped and fell in a parking lot owned by the village. On Friday morning, the village had inspected and salted the lot. But the village employs no work crew on weekends, and in the meantime the air temperature had risen above freezing for a few hours and then dropped.
Q: One Saturday morning, on my way to work, I slipped and fell in a parking lot owned by the village. On Friday morning, the village had inspected and salted the lot. But the village employs no work crew on weekends, and in the meantime the air temperature had risen above freezing for a few hours and then dropped.
By Friday, the village had plowed snow into a row of meters adjacent to the parking spaces. I fell on a patch of black ice. It must have been caused by the melting and refreezing of a pile. Did the village have any business in plowing the snow so near the parking spaces – if it wasn’t going to check on weekends, too?
A: Your attorney will argue that the village’s negligence in the maintenance of a municipally-owned parking facility foreseeably triggered the development of black ice. However cost-saving and pragmatic the piling of plowed snow may be, it certainly presents the known, foreseeable risk of melting and refreezing.
A pothole would be different. There, a patch of pavement gradually and unpredictably deteriorates, and statutes generally require that the city first receive written notice of the problem. Here, local temperature data is fully available to the city, and it needs no additional notice of the possible danger – arising from its very own method.
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
Blade Roller
Q: While rollerblading in my residential neighborhood, I tripped and fell. Moments before the accident, I had been traveling on the street. Then, I noticed a truck blocking my path. So I skated onto a driveway in order to travel for a bit on the sidewalk. I skated by several houses and then attempted to reenter the street using a second driveway. As I neared the end of the second driveway, I checked for oncoming traffic but did not stop. All of a sudden, one of my skates struck a two-inch height differential – where the edge of that driveway met a drainage culvert that ran the length of the street.
Q: While rollerblading in my residential neighborhood, I tripped and fell. Moments before the accident, I had been traveling on the street. Then, I noticed a truck blocking my path. So I skated onto a driveway in order to travel for a bit on the sidewalk. I skated by several houses and then attempted to reenter the street using a second driveway. As I neared the end of the second driveway, I checked for oncoming traffic but did not stop. All of a sudden, one of my skates struck a two-inch height differential – where the edge of that driveway met a drainage culvert that ran the length of the street.
A: In general, a landowner has a duty to maintain his or her premises in a reasonably safe condition. Your attorney will contend that the defendants’ duty to make their premises reasonably safe included a duty to alter the height differential at the base of their driveway to accommodate even rollerbladers – not just pedestrians, joggers and bicyclists.
The defendants may argue that you were aware of the risks, had an appreciation of the nature of the risks and voluntarily assumed the risks, but the defendants will not succeed with this argument. In New York it works only for sporting events, sponsored athletic and recreational activities, and athletic or recreational pursuits that take place at designated venues.
Our courts have held that acceptance of an ‘assumption of the risk’ argument in cases involving someone traversing a street or sidewalk would whittle away too much at the general duty of landowners to maintain their premises in a reasonably safe condition. Although you may well have been contributorily negligent, our courts will not say you assumed a risk.
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 © 2013-2020 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
Blocking Sled
Q: I was 15-years old and a member of my high school’s junior varsity football team. After the school day had ended, I changed into my practice gear in the locker room. Then I went to the field with other members of my team to wait for practice to begin. We were unsupervised while we waited; there were no coaches present on the field.
Q: I was 15-years old and a member of my high school’s junior varsity football team. After the school day had ended, I changed into my practice gear in the locker room. Then I went to the field with other members of my team to wait for practice to begin. We were unsupervised while we waited; there were no coaches present on the field.
I and other members of the team began taking turns using a piece of equipment called a ‘blocking sled’ to catapult each other into the air. Two other members of the team were propelled into the air, before I took my turn. I was propelled about 10 or 15 feet into the air. When I landed, I fractured both of my wrists. About 20 minutes passed between the time we first went over to the blocking sled and the time that I was injured.
A: In assuming physical custody and control over its students, a school effectively takes the place of parents and guardians. Accordingly, a school must take such care of its students as a parent of ordinary prudence would in comparable circumstances. The school will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The mere fact that the accident occurred following the formal end of classes for the day is without legal significance.
Possibly, the school will contend that your lawsuit is barred by the theory of ‘primary assumption of risk’. This theory can place the risk of participation in an athletic activity on the participant, in order to facilitate free and vigorous participation. Your attorney will argue that the theory is not applicable here. The use of a blocking sled to catapult others into the air is not the sort of socially valuable voluntary activity that the theory seeks to encourage.
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
Broadsided
Q: Immediately prior to the accident I was driving my car on a one-way street, with my daughter as a front-seat passenger and a third person as a rear-seat passenger. I came to a full stop at a stop sign at an intersection. The cross street had no traffic control device.
Q: Immediately prior to the accident I was driving my car on a one-way street, with my daughter as a front-seat passenger and a third person as a rear-seat passenger. I came to a full stop at a stop sign at an intersection. The cross street had no traffic control device.
While stopped, I looked to the right and to the left and observed no cars approaching the intersection. After making sure it was safe to continue, I proceeded. As I crossed the halfway point, my daughter cried that a car was approaching ‘mad fast’. It struck my passenger side with a very heavy impact.
I estimate that the car had been traveling at about 40 miles per hour. The driver told the police: (1) no, he was traveling at less than 15 miles per hour; and (2) what’s more, he was looking straight ahead and observed no cars.
A: No doubt the driver will argue that you were negligent, for failing to yield the right-of-way in violation of Vehicle and Traffic law § 1140. However, our courts have repeatedly held that it cannot be said that your conduct was the sole proximate cause of the accident simply because your approach into the intersection was regulated by a stop sign whereas no traffic control devices regulated the other driver’s approach.
In other words, it is far from clear that the other driver had the right-of-way. Your attorney will argue that – because you stopped at the stop sign and there were no cars near the intersection, because you lawfully arrived at and proceeded through the intersection first – the other driver lacked the right-of-way.
Moreover, even if the other driver indeed had the right-of-way, he might still be guilty of comparative negligence. Under that doctrine, a driver who lawfully enters an intersection may still be found partially at fault for an accident if he fails to use reasonable care to avoid a collision with another car in the intersection. It is for the jury to decide whether the driver exercised that care.
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
Bus Blues
Q: In a series of interactions, a bus monitor employed by the school district has physically and mentally abused my child, and she has failed to give him the supervision he needs. I think I can show this from the surveillance video recording. What is the law here?
Q: In a series of interactions, a bus monitor employed by the school district has physically and mentally abused my child, and she has failed to give him the supervision he needs. I think I can show this from the surveillance video recording. What is the law here?
A: Schools have a duty adequately to supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The standard for determining whether the school has breached its duty is to compare the school's supervision and protection to that of a parent of ordinary prudence placed in the same situation and armed with the same information.
To the extent that you are talking about the monitor's intentional acts, you generally must demonstrate that the school knew or should have known of the monitor's propensity to engage in such conduct, such that the monitor's acts could be anticipated or were foreseeable. One way to do this is to show that the school district had received prior complaints of the monitor's misbehavior.
For assault, there must be proof of physical conduct placing your child in imminent apprehension of harmful contact. For battery, there must be proof of intentional bodily contact that is offensive in nature.
To the extent that you are talking about the monitor's negligence, generally, where a monitor is acting within the scope of her employment, your claim against the school district proceeds under a theory of respondeat superior – vicarious liability. If she was acting outside the scope of her employment, your claim against the district is for negligence in supervising and training the monitor.
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
Busy Boulevard
Q: While driving northbound on a two-way street, I was hit by a car traveling eastbound on a two-way boulevard. My street was governed by a stop sign, but the boulevard was governed by nothing. I had stopped at the stop sign and looked both ways multiple times, before proceeding into the intersection. I have been told that I violated section 1142 of the Vehicle and Traffic Law, by failing to yield the right-of-way.
Q: While driving northbound on a two-way street, I was hit by a car traveling eastbound on a two-way boulevard. My street was governed by a stop sign, but the boulevard was governed by nothing. I had stopped at the stop sign and looked both ways multiple times, before proceeding into the intersection. I have been told that I violated section 1142 of the Vehicle and Traffic Law, by failing to yield the right-of-way.
A: Even though the other driver apparently had the right-of-way, he may be found to have contributed to the happening of the accident if he did not use reasonable care to avoid the accident or failed to see what was there to be seen through the proper use of his senses. There can be more than one cause of an accident, and generally, it is for the jury to determine the issue of causation.
Your attorney is likely to inquire as to whether the other driver observed your vehicle prior to the happening of the accident, or attempted to take any evasive action to avoid the impact, and as to where he struck your vehicle – in order to build a case that the other driver failed to take reasonable care to avoid the collision.
The objective is to establish that the other driver indeed was somewhat at fault, as by speeding – that, even if you technically failed to yield the right-of-way, any violation on your part was not the ‘sole proximate cause’ of this 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 © 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
Careful with my Broom
Q: I am employed by a roofing contractor. As a preliminary to applying the roofing felt and the shingles, I must identify the rotted areas and patch them. For a patch, the homeowner told me to use her own plywood. After I had done this on one side of the roof, the plywood ran out. The owner wanted to pay for no more. She told me to use pieces of the old roof-decking material, instead. After I had applied the roofing felt, but before I could begin the shingling, it began to snow. “Finish it right away,” said the owner, “or I won’t be paying you!” She gave me a broom, for sweeping away the snow. “Be careful, it means a lot to me!” I went back up and was doing my best to sweep away the snow. Eventually, I stepped on a piece of the old wood decking. It gave way, causing me to fall. Permit me to add that, before I began the actual roof work, the owner took me aside and asked me to seal her gutters, first. “Don’t worry. I’ll take care of you.” She was insistent, so I did.
Q: I am employed by a roofing contractor. As a preliminary to applying the roofing felt and the shingles, I must identify the rotted areas and patch them. For a patch, the homeowner told me to use her own plywood. After I had done this on one side of the roof, the plywood ran out. The owner wanted to pay for no more. She told me to use pieces of the old roof-decking material, instead. After I had applied the roofing felt, but before I could begin the shingling, it began to snow. “Finish it right away,” said the owner, “or I won’t be paying you!” She gave me a broom, for sweeping away the snow. “Be careful, it means a lot to me!” I went back up and was doing my best to sweep away the snow. Eventually, I stepped on a piece of the old wood decking. It gave way, causing me to fall. Permit me to add that, before I began the actual roof work, the owner took me aside and asked me to seal her gutters, first. “Don’t worry. I’ll take care of you.” She was insistent, so I did.
A: In a roofing accident, although the Labor Law makes many owners liable for your damages, it grants an exception for owners of one- and two-family dwellings who do not direct or control the work. In your case, the homeowner’s activities went well beyond those of a normal interested homeowner. She did far more than simply present ideas, make mild observations and casually inspect the work. The owner’s direction to reuse her old planking rather than install new plywood was a material contributing factor in your injury. In general, she interfered with the manner of your performance. The owner’s intermeddling constituted direction and control that is sufficient to remove the homeowner’s exemption that otherwise exists under 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