Q: With two other workers, I was working to replace an advertisement on a billboard.  It was elevated sixty feet from the ground.  The billboard was composed of a two-sided metal frame, set on a metal tube embedded in the ground.  Like the new advertisement, the old one had been printed on pieces of vinyl.

In order to install the new advertisement, we needed to attach some additions, called extensions, to the existing frame.  An extension is a plywood cutout shaped to accommodate the advertisement's artwork, when it exceeds the boundaries of the billboard's frame.  The extension is attached directly to the frame with nails, nuts and bolts.

At one point, in order to get around one of my co-workers, I detached my lanyard (rope) from the catwalk's safety cable.  Before I was able to reattach the lanyard, a strong wind gust caused a loose piece of the old advertisement to strike me in the chest, knocking me to the ground.

A: From these facts, it appears that you have a viable claim under at least three sections of the Labor Law.

Under section 240(2), that catwalk should have been surrounded by a safety railing.  Apparently, the catwalk was not.

Under section 240(1), a property owner can be liable for failing to provide sufficient safety devices to protect a worker, who is engaged in “altering” a structure, from elevation-related risks.  Installing extensions that change the physical shape of a billboard amounts to altering it.  It should not matter that you were not doing so at the actual moment of the accident.

Similarly, under section 241(6), all areas in which “construction” work is being performed must be so equipped as to provide reasonable and adequate protection and safety to the workers.  Construction includes alteration.

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

Q: One summer day, another kid and I went to the playground, just as we had many times in the past. We were throwing a football back-and-forth. Next to the playground was a concrete sidewalk. The edge of it was raised, cracked and uneven; it had been that way for years. While running, I tripped at this edge. Between two slabs, there was a gap of at least an inch.

A: It sounds like you ought to have been well aware of the obvious risk of playing next to this sidewalk, and were also familiar with the risks inherent in the sport of football in general, such as the risk of falling while running to catch a ball. Under our law, there is no duty upon the city to post guards at the park to channel the forms of play. In a world of limited tax revenue, where conditions are less than ideal, a city are not forbidden from having a playground along a cracked sidewalk. The courts have reasoned that the alternatives are even worse. Like it or not, the legal thinking is that parents in the neighborhood are, or should be, well aware of the conditions under which their children play. If the parents permit the children to play there, then so be it. The city has not undertaken to keep the children safe; it has merely given them permission to use at the park as they find it, to play in it as they would play anywhere else by themselves. Unless your lawyer can uncover a detail you haven’t mentioned, the court is likely to rule that the risk was not such that the city can be held liable: it was a natural risk that was required to be borne by 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 © 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

Q: Many of my patients are celebrities.  Some of them say that I have over-prescribed medications.  Some time ago, the Medical Board began proceedings to revoke my license for gross negligence.  Immediately, my license controversy was a matter of public knowledge.

A year ago, the local tabloid said that my license has already been pulled – which I guess is slang for revoked.  Three months later, they published a retraction, admitting that no revocation had as yet taken place.

A: You are what is called, in defamation law, a public figure.  You have to convince the jury that the paper’s inaccurate statements were published with ‘actual malice’.  Failure to employ fact-checkers, and failure to verify the status of your license prior to publication, are not enough.  The law is that proof of mere negligence does not suffice to establish ‘actual malice’ – unless the failure to investigate is so gross as to be willful avoidance of knowledge.

Yes, the tabloid could have consulted accurate articles and cannot explain how its error occurred.  One can even find a so-called ‘journalism expert’, who for a price will give his opinion that no rational journalist could have made the same mistake.  But this cannot dislodge the First Amendment.  It enshrines this country’s commitment to the principle that debate on public issues should be uninhibited, wide-open, and robust.

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

Q: As I was sleeping, a portion of the bedroom ceiling fell on my head.  I had been residing at this apartment for more than a year.  The landlord had always advised me to inform the super of any complaints about my apartment.  I had previously complained to the super that the ceiling was damaged and water-stained, and that I feared it might fall on me.

A: A landowner has a duty to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.  In order for a landowner to be liable in tort to a plaintiff who is injured as a result of a defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence.

Your landlord is likely to argue: (1) that she maintained the premises in a reasonably safe condition; and (2) that she neither created the dangerous condition nor had actual or constructive notice of its existence.

Suppose that the super testifies that he had not received any prior complaint about this area of the ceiling.  His testimony merely raises an issue of credibility, and the jury is always free to believe you rather than him.  Suppose that the landlord testifies that the super was merely a tenant in the building who lacked any authority to receive and address your complaints.  Once again, it appears that the jury is free to believe otherwise.

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

Q: Some time ago, I was found guilty of a kind of abuse.  Just as I was about to be released from federal prison, the government sought ‘civil commitment’ for me – saying that I suffer from a mental illness.  It causes me to have serious difficulty in refraining from that kind of conduct.  I would pose a very high danger to the public if released.  Is this constitutional?

A: Yes.  The Constitution permits, and a statute allows, the federal government, as the custodian of its prisoners, to protect nearby and other communities from the danger that a mentally ill, sexually dangerous person may pose.  Of course, the government must prove its claims at a hearing.  You will be represented by counsel and will have an opportunity to subpoena witnesses, to testify, to present evidence and to confront and cross-examine witnesses.  The government must prove its claims by evidence that is ‘clear and convincing’.

Confinement in the federal facility will last until either (1) your mental condition improves to the point where you are no longer dangerous, in which case you will be released; or (2) some State assumes responsibility for your custody, care, and treatment, in which case you will be transferred to the State that takes this burden.  There will be a regimen of ongoing psychiatric and judicial review, including judicial hearings at your request at six-month intervals.

If you were infected with a communicable disease that threatened others, surely it would be necessary and proper for the government to refuse to release you among the general public, where you might infect others.  The law is that this holds true for mental illness, too.

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

Q: I was employed by the owner of a residential condominium building, responsible for such things as vacuuming and dusting the hallways, and cleaning garbage rooms and stairwells.  One day, to obtain a replacement light bulb, I entered an internal staircase and walked down to a landing.  It was covered with construction dust.  The hallways were being renovated, and I tripped over a tool bag belonging to the general contractor, which I understand was responsible for cleaning up after its own work.

A rep of the management company was overseeing the project.  The rep would interact with the contractor on a day-to-day basis, make decisions regarding the work and get materials moved around so that there was clear access to apartments and stairways.

A: Presumably, you have been receiving workers’ compensation, and so may not sue your employer, the building owner.  However, you appear to have a strong case against both the contractor and the management company, which appears to have served as an agent of the owner.

You will seek to prove such facts as that the rep oversaw the quality of the work, told the construction workers when he was displeased, made decisions about the work, was authorized to shut down the job if there was an unsafe condition, and had spoken with the workers about not leaving tools and construction dust in the common areas.  In this way you can hope to establish that the management company exercised general control, and so is liable.

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

Q: While climbing over a railing of a permanent platform at a power plant, I fell.  The plant was under construction.  My employer had been hired to install electric heat tracing for this large construction project.  I had been assigned to work on the permanent platform, which was three or four stories above the ground, but had not received any instructions on how to access it.

The only route I knew required me to navigate the maze-like temporary scaffolding.  I needed to (1) climb up a scaffolding ladder near the platform, (2) step onto a scaffolding gate, and then (3) climb from the gate onto and over the three-and-a-half-foot railing of the permanent platform.  Unfortunately, no one had ever bothered to modify the gate to provide direct access to the platform.

Many of us construction workers climbed the scaffolding and climbed over railings to access the platform, rather than using a permanent ladder that was 30 feet from the scaffolding ladder.  No one ever instructed us that we were expected to use the distant permanent ladder rather than the scaffolding.  Although I wore a harness with two six-foot lanyards (ropes), the lanyards did not stop my fall.

A: Section 240(1) of the Labor Law imposes absolute liability on owners, contractors, and their agents when they fail to provide proper protection to workers employed on a construction site and this failure proximately causes injury to a worker – so long the risk against which you were not protected arose from a physically significant elevation differential.

Even though you fell ‘only’ from the railing to the platform, section 240(1) appears to apply to the facts of this case.  The defendants failed to provide you with an adequate safety device, and that failure was a proximate cause of your injuries.

The defendants also appear to be liable under section 200 of the Labor Law, which is a codification of the common-law duty to provide workers with a safe place to work.  They also appear to have violated section 241(6) of the Labor Law by failing to comply with 12 NYCRR 23-1.7(f), which requires that stairways, ramps, runways, ladders or other safe means of access be provided as the means of access to working levels above or below ground.

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

Q: I am a journeyman plumber.  I was working at the construction site for a complex of medical suites.  My employer was the plumbing subcontractor.

My job was to install pipe hanger systems.  In order to perform this work, I would cut rods of pipe to the desired length, mount a six-foot wooden stepladder to screw the rods into clamps and tighten the clamps.  Afterwards, I would hang pipes from the rods.

At first, I was working in a hallway.  Then I came to an office suite.  The ceiling was higher.  I had to stand on the top cap of my ladder – using a wrench to tighten a clamp with my right hand and holding onto a rod with my left hand.  The wrench slipped.  I lost my balance.  The ladder moved.

A: Your employer will say that you knew that you needed a taller ladder, say eight-foot, in order to screw the rods into the clamps.  Were there eight-foot ladders on the job site?  Did you know this?  Did you know where they were stored?  Were you permitted to help yourself to tools without asking the foreman?

Suppose that all the eight-foot ladders were in use at the time of your accident.  Had your foreman directed you to finish the piping in the office suite before undertaking other tasks?  Was there sufficient other work to occupy you for the rest of the workday?

If there were adequate safety devices available for your use, or you had other work, then your case is tough.  Talk to a lawyer about this – perhaps you have the right answers to these questions – and heal quickly.

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

Q: At an intersection, an automobile collided with my bike.  There was a stop sign in each direction.  I have to admit that I slowed my bike but did not come to a complete stop.  The car was approaching the intersection and slowing down.  Seeing that it was slowing down, I entered the intersection and looked straight ahead.  When I was more than halfway across the intersection, I was T-boned by the car.

The driver says that I should have stopped and yielded the right-of-way.  He says that that his car came to a stop, he looked both ways and, not seeing any approaching vehicles, he drove into the intersection.  According to the driver, he did not see me until our collision, when he was halfway across the intersection.

A: In general, a person riding a bicycle on a roadway is granted the rights, and is subject to the duties, applicable to a car driver.  A driver who has the right-of-way is entitled to anticipate you will obey traffic laws requiring you to yield.

On the other hand, a driver is negligent when failing to see what she or he should have seen through proper use of her or his senses.  That is: a driver traveling with the right of way may be found to have contributed to the happening of a collision if she or he did not use reasonable care to avoid it; there can be more than one proximate cause of a collision.  Definitely, consult with an attorney.

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

Q: My vehicle was hit head-on by a truck.  The truck driver was driving to a job site in a company vehicle.  His blood alcohol content was 0.14%.  In connection with the accident, he was arrested for driving while intoxicated and for vehicular assault.

A: New York State has a ‘permissive use’ statute, Vehicle and Traffic Law § 388(1).  It provides that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.”

If the driver exceeded restrictions as to time, place and purpose, then the owner may escape liability.  If the driver merely violated limiting instructions that relate to the manner of operation – such as speeding or ‘careless pilotage’ – then it is not so easy for the owner to escape.  Even if the owner had a requirement to drive sober, your attorney will argue that it related merely to the manner of operating the vehicle, and not to when and where.

There is also the doctrine of respondeat superior: if the driving was taking place in furtherance of the employer’s business and within the scope of employment, then the employer can be vicariously liable.  Even where the employee was using the vehicle in going to or from work, it is possible that the employer was deriving some special benefit – and so a finding that the employee was acting within the scope of his employment would be justified.

Suppose that (a) the truck contained a tool box for work tools, (b) the truck advertised the business by displaying the company name and logo, (c) the employee used the truck to transport supplies to job sites from home improvement stores, and (d) he worked at construction job sites rather than a main office, so permitting him to take the vehicle home saved him from having to use work time to pick the company truck up and drop it off at a central location each day.  If so, your attorney will argue that, despite any intoxication, respondeat superior applies, because the employer was deriving a benefit from the employee’s ability to take the vehicle home.

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

Q: The other day, I went to an outdoor concert to distribute pamphlets.  While in the parking area, I was attacked.  Those guys were drunk, red eyes, bottles in their hand, smelling.  When the attack occurred, officers were stationed at SOME parts of the parking fields, but I don’t think any were in the parking area.

A: A landowner owes people on his property a duty of reasonable care under the circumstances to maintain the property in a safe condition.  However, she is not an insurer of a visitor's safety.  Her duty is defined by past experience and the likelihood of conduct on the part of third persons that is likely to endanger the safety of a visitor.

In your case, it might be that this brutal attack was not foreseeable: that the types of crimes committed at past concerts were less serious than a criminal assault, and would not lead the City or the producer to predict it.  Certainly, one hopes that a random criminal attack of this nature is not a predictable result, in our society, of the gathering of a large group of people.

A court will ask what measures could have been undertaken to prevent your injury.  To have had a security officer posted at the precise location where the incident took place, or wherever pedestrians were gathered, would seem an unreasonable burden.

Be this as it may, take this case to a lawyer: there may well be a winning detail that you have overlooked.

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

Q: I was a park maintenance worker. In the course of my employment, I attempted to move a garbage barrel. When I attempted to pull the trash can from its location in the park, in order to move it to the front entrance for pick up by the sanitation department, I was unable to do so and felt a tear in my shoulder. My co-worker says that when she looked in the garbage barrel that day, she saw chunks of concrete that could only have come from the construction workers who were fixing the park.

A: The subcontractor’s attorney is likely to argue that the hazard of a very heavy trash can filled with concrete was ordinary and obvious, and therefore you are not entitled to recovery. The idea is that – when a worker confronts the ordinary and obvious hazards of her employment, and has at her disposal the time and other resources to enable her to proceed safely – she may not hold others responsible if she elects to perform her job so incautiously as to injure herself. Nevertheless, the courts tend to hold that only a jury can decide whether a hazard is ordinary and obvious. It is my impression that it would have been unusual and abnormal for there to be concrete in the garbage can. Even if your co-worker says that the garbage barrel was very full of the concrete chunks, perhaps they were at the bottom, and the garbage barrels were very wide. Perhaps there was garbage on top of the concrete and you couldn’t see the chunks. The subcontractor’s attorney is likely to argue that the hazard, even if not vis- ible, was otherwise obvious because you could have hefted the can in order to test its weight before attempting to pull it. Still, it appears that only a jury can decide whether you should have known that the can was very heavy due to the presence of concrete, or that attempting to move it on your own would cause injury

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