Lincoln, Mandela and Gandhi walk into a courtroom

By Evan M. Goldberg

New York Workplace Accidents – Wrongful Death and Personal Injury Lawsuits

By Evan M. Goldberg

Workplace accidents in New York are events that result in injury, illness, or death while a person is performing job-related activities. These accidents can occur in various industries and workplaces, ranging from construction sites and manufacturing plants to offices and retail establishments. Several factors contribute to workplace accidents, including unsafe working conditions, lack of proper training, human error, equipment malfunction, and inadequate safety measures. The most common reasons for New York workplace accidents include negligence in failing to provide the worker with personal protective equipment, safe working conditions, fall protection, protection from falling objects, guarding, warnings, safe gear and proper evacuation in case of fire, smoke or building collapse. Some common circumstances of New York workplace accidents include slips, trips, falls; contact with objects and equipment; exposure to harmful substances; transportation accidents, machinery and tool accidents.  Construction, transportation, and agriculture are among the industries with higher risks of workplace accidents.

Occupational Safety and Health Administration (OSHA)

OSHA is a federal agency responsible for ensuring safe and healthy working conditions for employees. OSHA sets and enforces safety and health standards and provides guidelines for employers to follow. Employers are required to report serious workplace injuries and fatalities to OSHA. Workplace accidents can have legal implications for employers. Failure to comply with OSHA regulations may result in fines and penalties. Owners, contractors and employers may also face lawsuits from injured workers seeking compensation. 

Workers who suffer from injury and disability are entitled to file New York workplace accident personal injury claims. In the case of a fatal workplace accident, workers’ survivors may be entitled to file New York workplace wrongful death lawsuits. 

Employers and other companies or entities involved in the work are required to keep records of workplace injuries and illnesses and report serious incidents to OSHA. This information helps OSHA identify trends, assess the effectiveness of safety programs, and develop targeted interventions. Responsible parties must implement safety programs, provide adequate training, use proper safety equipment, and regularly inspect and maintain machinery and facilities. Employees also play a crucial role in maintaining a safe workplace by following safety guidelines and reporting any hazards or concerns.

New York workplace accidents consequences and injuries

Workplace accidents can lead to a variety of injuries, depending on the industry and job-specific hazards. Common injuries include fractures, dismemberment, head trauma, and traumatic brain injury. Machinery and heavy equipment pose particular hazards of impact and dismemberment.  Work performed at heights pose risks of falling and being struck by falling objects.  Workers in manufacturing, construction, and food service may also be at risk of burns, while those in industries with electrical hazards may face the danger of electrical shocks.

Eye injuries can occur from flying debris or exposure to bright lights, and respiratory issues may develop in workers exposed to harmful substances. Traumatic brain injuries can result from falls or being struck by objects, especially in industries like construction, transportation and manufacturing. Repetitive strain injuries may affect office workers and assembly line workers, while those in outdoor environments may be susceptible to heat-related illnesses. Employers and responsible parties can mitigate these risks by implementing safety programs, providing proper training, and ensuring compliance with regulations, ultimately fostering a culture of safety in the workplace. 

No matter how severe the injury is, injured employees should consult an experienced NY workplace accident personal injury attorney to learn if they have a case. If they suspect or know that the accident resulted from negligence or wrongdoings, or unsafe work conditions, they should consult a NY workplace accident attorney immediately after the accident!

Some consequences may be treatable and reversible while others are permanent and life-altering. Some of the injuries are fatal.  When injuries result in death, New York workplace accident lawyers help the deceased worker’s survivors to hold liable parties liable and seek compensation. New York wrongful death compensation may cover both financial losses and loss of support or parental care, as well as pain and suffering experienced by the decedent. 

New York workplace accidents statistics

According to the Bureau of Labor Statistics (BLS), in recent years, there have been thousands of work-related fatalities and millions of nonfatal injuries reported annually. There were 5,486 fatal work injuries recorded in the United States in 2022, a 5.7-percent increase from 5,190 in 2021. The fatal work injury rate was 3.7 fatalities per 100,000 full-time equivalent (FTE) workers, up from 3.6 per 100,000 FTE in 2021. Although there is increased safety awareness, New York workplace accidents still occur too often and leave several people injured, disabled or dead. New York personal injury and wrongful death lawyers are here to help. 

Workplace Safety Culture: Establishing a strong safety culture within an organization is essential for preventing accidents. This involves promoting safety awareness, encouraging open communication about safety concerns, and fostering a commitment to continuous improvement in safety practices. Efforts are continually being made to improve workplace safety, but challenges persist. Owners, contractors, employers, regulatory agencies and other responsible parties all play critical roles in creating and maintaining safe working environments. If a New York workplace accident occurs, learn what requirements you have to meet to be able to file a NY wrongful death lawsuit or NYC workplace accident personal injury claim.

New York workplace accident personal injury claim – Who is entitled to file the claim? How to hold the employer or supervisor liable for the accident?

Who is entitled to file a New York workplace accident lawsuit? It depends on the type of the lawsuit. In case of a New York personal injury accident, the injured worker may file the lawsuit and seek compensation from the liable party. If the person died due to a fatal New York workplace accident, then the deceased’s survivors may be entitled to sue the defendant. Typically, the deceased’s spouse, children, or parents file the lawsuit and seek compensation for their losses such as funeral costs, hospital bills or loss of wages.  Loss of guidance and pain and suffering experienced by the decedent are also appropriate elements of damages.

New York workplace accidents may occur to anyone; even office employees are at risk of dangerous accidents such as property defects, trip hazards, failure in evacuation or fire. Some industries and occupations involve greater risk of sustaining severe injury or dying at the workplace. 

What occupations are at the highest risk of New York workplace accidents?

Certain occupations carry a higher risk of New York workplace accidents, wrongful death or personal injury due to the nature of the work involved. The level of risk varies based on factors such as the type of industry, the work environment, and the tasks performed. Some occupations that are commonly associated with a higher risk of workplace accidents include:

• Construction Workers: Construction sites are known for their inherent dangers, including falls from heights, machinery accidents, electrical hazards, and exposure to heavy equipment.
• Roofers: Roofing work involves working at heights, posing risks of falls, slips, and trips. Additionally, roofers may face hazards from tools and materials.
• Iron and Steel Workers: Those involved in the construction and maintenance of metal structures may encounter risks like falls, injuries from heavy equipment, and exposure to hazardous materials.
• Electrical Power Line Installers and Repairers: Working with electricity poses risks of electrical shocks, falls from heights, and injuries from working with power lines.
• Waste Collection and Recycling Workers: Jobs involving waste collection and recycling may expose workers to heavy machinery, hazardous materials, and physical strain.
• Firefighters and Emergency Responders: While protecting public safety, these professionals face risks such as exposure to dangerous conditions on property, hazardous materials, burns, and traumatic injuries during emergency situations.
• Fishermen and Fishery Workers: Those working in the commercial fishing industry face risks such as drowning, equipment malfunctions, and harsh weather conditions.
• Agricultural Workers: Farmers and agricultural workers are exposed to risks such as machinery accidents, chemical exposures, and incidents involving large animals.
• Logging Workers: Logging operations involve working with heavy machinery and cutting down trees, presenting risks of equipment accidents, falling objects, and exposure to difficult terrain.
• Truck Drivers and Delivery Workers: Transportation-related occupations, including truck driving and delivery services, come with risks such as vehicle accidents, injuries from loading and unloading cargo, and long hours on the road.
• Oil and Gas Extraction Workers: Workers in the oil and gas industry face hazards such as explosions, fires, exposure to toxic substances, and machinery-related incidents.
• Healthcare Workers: While not commonly associated with accidents, healthcare workers face risks of needlesticks, exposure to infectious diseases, and workplace violence.

It’s important to note that within any occupation, safety measures, training programs, and the use of personal protective equipment can significantly reduce the risk of workplace accidents. Responsible parties are encouraged to implement comprehensive safety protocols to protect their workers and create a culture of safety within the workplace. Additionally, occupational safety regulations and guidelines set by agencies like the Occupational Safety and Health Administration (OSHA) play an important role in minimizing workplace risks across various industries. However, many companies, contractors, manufacturers, employers and supervisors still act negligently and continue to cause New York wrongful deaths and personal injuries.  If you or your loved one had suffered from injury, disability or trauma because of a third party’s negligence or recklessness, you may file a lawsuit against the liable party. It is highly recommended to hire a New York workplace accident attorney. 

What does the New York workplace accident lawyer do? What are the key benefits of hiring the New York personal injury attorney or NYC wrongful death lawyer?

A NY workplace accident lawyer, also known as a personal injury lawyer specializing in workplace injuries, provides legal representation and assistance to individuals who have been injured or suffered harm in a workplace accident. Here are some of the key tasks and services that a workplace accident lawyer typically performs for their clients:

Legal Consultation:

The New York workplace accidents lawyer will offer an initial consultation to assess the details of the case. During this meeting, they gather information about the accident, the extent of injuries, and potential liability factors.

Case Evaluation:

The NYC workplace accidents attorney will evaluate the merits of the case, considering factors such as negligence, liability, and the client’s damages. They will determine if there is a legal basis for pursuing a claim.

Investigation:

Conduct a thorough investigation into the circumstances surrounding the workplace accident. This may involve collecting evidence, reviewing accident reports, interviewing witnesses, and consulting with experts in relevant fields.

Legal Advice:

Provide legal advice to the client regarding their rights, potential legal options, and the likelihood of success in pursuing a claim. The New York workplace accident lawyer may also offer guidance on the best course of action to maximize compensation.

Communication with Insurance Companies:

Communicate with the involved insurance companies on behalf of the client. This includes negotiating settlements and advocating for fair compensation for medical expenses, lost wages, pain and suffering, and other damages.

Filing Legal Documents:

Prepare and file the necessary legal documents to initiate a lawsuit if a settlement cannot be reached through negotiation. This includes drafting complaints, motions, and other legal pleadings.

Court Representation:

Represent the client in court if the case proceeds to litigation. This involves presenting the case before a judge and/or jury, cross-examining witnesses, and arguing legal points on behalf of the injured party.

Negotiation:

Engage in settlement negotiations with the opposing party’s legal representatives. The NY workplace lawyer works to secure a fair and just settlement that compensates the client for their injuries and losses.

Legal Advocacy:

Advocate for the client’s rights and interests throughout the legal process. This includes challenging any defenses raised by the opposing party and presenting a compelling case to support the client’s claims.

Client Support:

Provide ongoing support and guidance to the client, keeping them informed about the progress of the case, addressing their concerns, and answering any questions they may have. Victims of the New York workplace accident may be devastated and suffer mental distress or chronic pain due to prolonged recovery and disabilities. Experienced and compassionate NY workplace accident personal injury attorney will be extremely helpful to manage emotions and stressful situations. 

Expert Consultation:

Consult with experts, such as medical professionals or other specialists, to strengthen the client’s case by obtaining professional opinions and testimony. Knowledgeable and experienced New York personal injury attorney knows exactly how to support the claim with strong evidence of the liable party’s negligence. 

In essence, a New York workplace accident lawyer works to protect the rights of individuals who have been injured on the job, seeking compensation for their medical expenses, lost wages, pain and suffering, and other damages resulting from the workplace accident. The goal is to help the injured party navigate the legal process and achieve a fair resolution. Do not wait; contact our New York workplace accident attorney as soon as possible to consult on your case. Remember, we work in your best interest and the consultation is free!

What does New York wrongful death mean?

How do you know if your loved one’s death was a wrongful death

By Evan M. Goldberg

New York wrongful death is a legal term that describes where an individual’s death is caused by the negligent, reckless, or intentional actions of another party. In such cases, surviving family members or the estate of the deceased may pursue a wrongful death lawsuit seeking compensation for the losses they have suffered due to the untimely death of their loved one. New York wrongful death accidents may be caused by various reasons and under various circumstances. There is no legal requirement to hire a New York wrongful death lawyer, but statistically, individuals who seek help from an attorney receive higher compensation than those who did not ask for legal guidance. New York wrongful death laws aim to provide a legal avenue for compensation to those left behind when someone dies due to the actions or negligence of another. These cases can be complex, requiring a thorough investigation, legal expertise, and evidence to establish liability and determine the extent of damages. Experienced New York wrongful death attorneys can provide emotional support during mourning and grief, while they provide their expertise and guidance throughout the complex lawsuit. 

Who is entitled to seek New York wrongful death compensation?

The individuals entitled to seek compensation in a New York wrongful death claim typically include close family members and, in some cases, certain dependents or individuals who have suffered financial losses due to the death. The specific rules regarding who is entitled to file a New York wrongful death claim can vary by jurisdiction, but common categories of eligible plaintiffs often include:

Immediate Family Members:

• Spouse: A surviving spouse is commonly eligible to file a wrongful death claim. This includes husbands and wives.
• Children: Children, including biological, adopted, or stepchildren, are often eligible to file a claim for the wrongful death of a parent.
• Parents: parents may be entitled to seek compensation for the wrongful death of their child.
• Any surviving family members, depending on the circumstances.

Dependents:

• Individuals who were financially dependent on the deceased may be eligible to file a New York wrongful death claim. This can include individuals such as domestic partners or other family members who relied on the deceased for financial support.

Personal Representatives or Executors:

• In cases where the immediate family members or dependents do not file a claim, the personal representative or executor of the deceased person’s estate may have the right to bring a wrongful death lawsuit on behalf of the estate and its beneficiaries.

 

Government:

      

In the absence of a qualifying family member or dependent, the government will appoint a representative, often with cooperation from interested parties, to ensure that justice is done.

What types of evidence may be brought to support the New York wrongful death lawsuit?

Experienced New York wrongful death attorneys know the type of evidence most likely to bring about success in the the lawsuit, but in general, there are some key elements of proving the responsible party’s liability. Documents such as police reports, medical reports, witness’ testimony, photographs from the scene, videos and voice recordings from the accident can be persuasive evidence to support the New York wrongful death lawsuit. 

What are the key elements of New York Wrongful Death Lawsuit?

To establish a successful New York wrongful death claim, certain key elements must generally be present. While these elements can vary by jurisdiction, common components include:

Death of a Person:

The New York wrongful death lawsuit must involve the death of an individual. This can result from various circumstances, such as accidents, negligence, or intentional acts.

Negligence or Wrongful Act:

The plaintiff, through his or her attorney, needs to show that the death resulted from the negligent or wrongful actions of the defendant. This could involve actions such as negligent or  reckless driving, improper safety procedures on construction sites, dangerous maintenance of property, medical malpractice, or product defects.

Causation:

There must be a direct link between the actions or negligence of the defendant and the death of the individual. The plaintiff must demonstrate that the defendant’s conduct was a substantial factor in causing the fatal injuries.

Breach of Duty:

In many cases, the plaintiff must establish that the defendant owed a duty of care to the deceased person and that this duty was breached.  For instance, a driver has a duty to operate a vehicle safely and responsibly; property owners and managers have a duty to have and maintain safe property; construction contractors have an obligation to provide a safe work site, and the list goes on.

Establishment of Liability:

The plaintiff must prove that the defendant is legally liable for the death. Liability may be based on actions, omissions, or a failure to fulfill a duty of care.

Surviving Family Members:

The individuals bringing the lawsuit must have legal standing. This typically includes immediate family members, such as spouses, children, or parents, and may extend to other dependents or individuals who have suffered financial losses due to the death.

Quantifiable Damages:

The plaintiff must demonstrate specific damages resulting from the death, which can include medical expenses, funeral and burial costs, loss of financial support, loss of guidance, and pain and suffering.

Expert Testimony (if required):

In some cases, expert testimony may be necessary to support the claim. For example, medical experts may provide opinions on the cause of death or the standard of care in medical malpractice cases.

It’s important to consult with a qualified New York personal injury attorney to understand the specific requirements for a wrongful death claim in a particular jurisdiction and to navigate the complexities of these cases. Legal professionals can provide guidance based on the circumstances surrounding the death and applicable laws.

The duty of care, breaching the duty of care and causation of the death may occur in various ways. There are the most common situations leading to the wrongful death lawsuits.

The most common causes of New York Wrongful Death Lawsuits

Wrongful deaths can occur in various circumstances, and some of the most common causes include:

New York Wrongful Death Road Accidents:

• Car Accidents: Motor vehicle collisions, involving cars, trucks, motorcycles, bicycles, or pedestrians, are a leading cause of wrongful deaths. Factors such as speeding, reckless driving, distracted driving, and impaired driving contribute to fatal accidents.
• Truck Accidents: Collisions involving large trucks can lead to catastrophic injuries and fatalities. Factors like driver fatigue, inadequate training, or mechanical failures may contribute to truck accidents.

New York Medical Malpractice:

• Negligence by healthcare professionals, including doctors, nurses, and other medical staff, can result in wrongful deaths. Examples include surgical errors, misdiagnosis, medication errors, and inadequate patient care.

New York Wrongful Death Workplace Accidents:

• Fatalities in the workplace can result from construction accidents, industrial incidents, falls, exposure to hazardous substances, and equipment malfunctions. Owners, contractors and employers are responsible for providing a safe work environment and adequate training to prevent such accidents.

Premises Liability:

• Property owners or occupiers can be held liable for wrongful deaths occurring on their premises. This may involve incidents such as slip or trip and falls, inadequate security leading to criminal acts, or dangerous conditions causing fatal accidents.

Product Liability:

• Defective products or products with inadequate warnings can lead to fatal injuries. This category includes defective vehicles, pharmaceuticals, hand tools, machinery, medical devices, and other consumer goods.

Intentional Acts:

• Wrongful deaths can result from intentional acts such as assault, homicide, or acts of violence. In such cases, both criminal charges and wrongful death claims may be pursued against the responsible party.

Dangerous Drugs and Pharmaceuticals:

• Defective or dangerous drugs can lead to fatal consequences. Pharmaceutical companies may be held liable for inadequate testing, failure to warn of potential risks, or manufacturing defects.

Nursing Home Negligence:

• Neglect or abuse in nursing homes can result in fatalities, especially among vulnerable elderly residents. Common issues include inadequate care, medication errors, or physical and emotional abuse.

Criminal Acts:

• Wrongful deaths can occur due to criminal acts, including assault, robbery, or other violent crimes. Property owners may be held liable if inadequate security measures contribute to criminal acts on their premises.

It’s important to note that the circumstances surrounding wrongful deaths are diverse, and each case is unique. Establishing liability requires a thorough investigation, and legal action may involve complex considerations. If you believe you have a wrongful death case, consulting with an experienced personal injury attorney is crucial to understand your legal options and whether you are able to pursue justice on behalf of your loved one. 

What does the New York Wrongful Death Attorney do? What are crucial benefits of hiring the NY Wrongful Death Lawyer?

A New York wrongful death lawyer plays a crucial role in helping clients navigate the legal process and seek compensation for the loss of a loved one. Here are some of the key ways in which a wrongful death lawyer assists their clients:

Legal Consultation:

Provides an initial consultation to understand the details of the case, explain legal rights, and assess the potential for a wrongful death claim.

Case Evaluation:

Evaluates the merits of the case by examining the circumstances surrounding the death, determining liability, and assessing the damages suffered by the surviving family members.

Investigation:

Conducts a thorough investigation into the events leading to the death, gathering evidence, interviewing witnesses, and consulting experts if needed to build a strong case.

Legal Advice:

Provides legal advice to the surviving family members on the best course of action, including whether to pursue a wrongful death lawsuit, negotiate a settlement, or explore alternative dispute resolution methods.

Filing Legal Documents:

Prepares and files the necessary legal documents to initiate a wrongful death lawsuit, ensuring compliance with court procedures and deadlines.

Representation in Court:

Represents the clients in court if the case proceeds to litigation, presenting the case before a judge and/or jury, cross-examining witnesses, and arguing legal points on behalf of the surviving family members.

Settlement Negotiations:

Engages in settlement negotiations with the opposing party’s legal representatives, striving to reach a fair and just settlement that adequately compensates the surviving family members for their losses.

Calculation of Damages:

Assists in calculating and quantifying damages, including medical expenses, funeral costs, loss of income and financial support, loss of guidance, and pain and suffering.

Expert Consultation:

Consults with experts to strengthen the case by obtaining professional opinions and testimony.

New York Wrongful Death Statute of Limitations Compliance:

Ensures that the lawsuit is filed within the applicable statute of limitations, preventing the case from being dismissed due to the expiration of the legal time frame.

Client Support:

Provides ongoing support and guidance to the clients, keeping them informed about the progress of the case, addressing their concerns, and answering any questions they may have.

Alternative Dispute Resolution (ADR):

Advises on and facilitates alternative dispute resolution methods, such as mediation or arbitration, if appropriate for the case.

Overall, a NY wrongful death lawyer works to protect the rights of the surviving family members, seeking justice and compensation on their behalf. The New York wrongful death attorney’s expertise in navigating complex legal procedures and building a compelling case is essential for achieving a favorable outcome in wrongful death claims.

Sore Losers Law in Practice

By Evan M. Goldberg

Recently a defendant acted maliciously with respect to a settlement and was properly called out.  The company’s bizarre reaction to the Colorado court’s verdict was to purposely inconvenience the plaintiff by paying  $23,500 paid in assorted coins. The defendant was fined for disrespectful action. 

No one likes being sued. But the Court system is available to pursue justice. Indeed, it is the responsibility of a fair government to provide such access. Unfortunately, even when a lawsuit is over, some just don’t get it. By paying a voluntary settlement in tons of coins, as opposed to a check, the defendant demonstrated immaturity and was rightfully admonished and penalized by the Judge. By agreeing to the settlement, the defendant must have accepted the plaintiff’s claim as valid. There are always sore losers. 

In supporting penalties for defendant’s actions, the Judge noted that the company had sent the money as loose coins, totaling 3 tons (2.7 metric tonnes), and delivered it in a custom-made metal box. This massive coin-filled container was so heavy that it couldn’t be transported in the freight elevator at the offices of Fired Up Fabrications’ lawyers, and even a forklift couldn’t handle it, as stated in court documents.

As a result of this misconduct, Judge Findley ordered JMF Enterprises to use a more conventional payment method, such as a check. Additionally, he ruled that JMF would have to provide an increased settlement amount, covering an estimated $8,092 in legal fees resulting from the dispute over the legitimacy of the coin payment.

One of the subcontractor’s attorneys, Danielle Beem, described the coin payment as a “symbolic middle finger” to their client. The lawsuit is widely discussed in the media. JMF’s attorneys did not agree with the fines imposed.  Their lawyers argued that the settlement agreement did not specify the payment method and claimed that they had no intention of causing any distress to Fired Up Fabrications, emphasizing their prior close friendship. They contended that the coin payment was a reference to their shared career field, meant to fulfill the settlement, albeit in an unconventional manner. 

However, Judge Findley pointed out that photographic evidence indicated that JMF had gone to the extent of sorting the coins into boxes by denomination and then “carelessly and haphazardly” dumping them into the container. He noted that the time and expense required to rectify this payment attempt would substantially reduce the net settlement amount received by the plaintiff due to costs and inconvenience. The Judge and plaintiffs’ attorneys had no doubts the liable company had done it on purpose and showed immaturity and disrespect toward the plaintiffs. 

There have been other cases when defendants tried to pay their fines in pennies.

JMF is one of many parties trying to pay claims or charges in coins. Previous cases involved bringing pennies in wheelbarrows and buckets compared to the company that brought them in a metal cage. Almost all of the cases ended badly for the responsible party. 

In May 2016, a resident of Frisco, Texas, expressed his disbelief at receiving a speeding ticket for going nine miles over the speed limit. His frustration deepened when a jury upheld the ticket. When the city authorities ordered him to pay $212 in fines, he decided to make the payment as inconvenient as possible. His unconventional choice was to settle the debt by using over 22,000 pennies, which he carried in two buckets. He had obtained these coins from a local bank, and he even went as far as painting the buckets with the words “Extortion payment.” He then proceeded to the Frisco Municipal Court and emptied the pennies onto the counter. The entire episode was recorded and later posted on YouTube.

While the city of Frisco refrained from providing a specific comment on the incident, a spokesperson informed the media that the pennies had been counted using two coin-cashing machines, which took approximately three hours to complete. According to Frisco’s spokesperson, the original fine amounted to $79.90, with court costs totaling $132.10, resulting in a payment of $212.00. Notably, there was an overpayment of $7.81, the man stated the city could keep.

A judge  ordered the owner of an auto repair shop to pay nearly 4 million more cents to resolve a legal dispute. In June 2023, Miles Walker, the proprietor of A-OK Walker Autoworks in Peachtree City, Georgia, was required by a federal judge to pay $39,934 in unpaid overtime and damages to nine employees. This settlement came as a result of a civil lawsuit filed by the U.S. Labor Department, accusing Walker of retaliation against his former employee, Andreas Flaten, in 2021.

After Andreas Flaten reported to the agency that Walker owed him a final paycheck of $915, the employer retaliated by delivering the amount in pennies coated with oil to Flaten’s driveway. A pay stub with an offensive message accompanied this pile of loose change.

Why is it inappropriate to pay fines in coins? Is it prohibited to pay tickets or claims in coins? 

In the U.S. there is no legal requirement for any business or government agency to use any particular payment type. Most businesses and government agencies accept cash, but they do not have to get 40,000 pennies for your $400 fine. There is no law in the U.S. that makes any person, business, or government agency accept all forms of legal payment. Yes, it says: “This note is a Legal Tender For All Debts, Public and Private” on U.S. paper currency. It means that you can use cash to pay debts and penalties, not that someone has to accept it, no matter the form of particular payment. It takes time and employees’ effort to count pennies. 

If you are paying a fine and they do not accept your pennies, and you run out of time to get back with an acceptable payment method, then you will pay an additional late fee, even though you were there on time to pay with your pennies. You may face extra financial charges for the inconvenient and unreasonable action of bringing thousands of coins instead of a common and acceptable payment form. 

So the bottom line is, don’t be a sore loser.

Justice Quotes for Labor Day

By Evan M. Goldberg

In honor of Labor Day, we decided to share some of Evan’s favorite quotes:

“At his best, man is the noblest of all animals; separated from law and justice he is the worst.” -Aristotle

“All the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope.” -Churchill

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.” -Gandhi

“Justice is sweet and musical; but injustice is harsh and discordant.” -Thoreau

“The dead cannot cry out for justice. It is a duty of the living to do so for them” -Bujold

“It is impossible to struggle for civil rights, equal rights for blacks, without including whites. Because equal rights, fair play, justice, are all like the air: we all have it, or none of us has it. That is the truth of it.” -Angelou

“Fairness is what justice really is.” -Potter Stewart

“Justice consists in doing no injury to men; decency in giving them no offense.” -Cicero

“I think the first duty of society is justice.” -Hamilton

“A society that has more justice is a society that needs less charity.” -Nader

“True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others.” -Sacks

“The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be.” -Raymond Chandler

“Exlusion is never the way forward on our shared paths to freedom and justice.” -Tutu

“The sad duty of politics is to establish justice in a sinful world.” -Nieburhr

”Justice will not come to Athens until those who are not injured are as indignant as those who are injured” -Thucydides.

Availability of Doctors or Hospitals Willing to Perform VBACs in New York

By Evan M. Goldberg

Letter to Editor of Journal News

The article about the claimed unavailability of doctors or hospitals willing to perform VBACs (vaginal birth after cesarian section) due to a fear of lawsuits relies upon faulty premises and proven contradictions. First, the article itself states that there are hospital which perform VBACs but, as if it were a bad thing, the hospitals require the contemporaneous use of a fetal monitor. This life saving device simply monitors the fetal heart rate for the known complication of uterine rupture, and it is not the least bit invasive.

So where’s the problem?

The truth is that proving a malpractice case is dependent upon a doctor violating the standards his/her own profession has promulgated. The American College of Obstetricians & Gynecologists has definitively stated that attempting a VBAC is entirely proper and, accordingly, standing by itself, allowing the procedure cannot be evidence of malpractice. Rather, it is the failure to properly monitor the high risk attempt that leads to liability, which is necessarily established by in-court testimony of a fellow physician. So if obstetricians are squeamish about potential liability, perhaps they should be more squeamish about the permanent, irreversible brain damage infants experience due to established negligence throughout this country, which has been scrutinized by juries as well as trial and appellate courts.

Indeed, despite the of deaths per year from medical errors, costs associated with the medical malpractice civil justice system account for less than one half of one percent of the nations health care costs. The insurance industry has admitted before Congress that placing caps on damages will not have the effect of lowering malpractice premiums, and it has been established that the recent increase in premiums is due to poor investment practices by the insurance industry, as well as artificially frozen premiums for over a decade.

In April, 2003, just three months before your article first appeared, Westchester residents assembled to perform the noble task of jury duty and decided that a local obstetrician had negligently caused permanent brain damage to a little boy now living in Yonkers. I was the attorney for this boy. Your newspaper covered the $14.7 million dollar verdict, which was stated to be especially significant in this day and age, when movement is afoot to limit such awards. The power of the jury to decide justice in medical malpractice lawsuits must not be taken away, and if the medical industry is squeamish about performing procedures it knows is being carried out negligently, the victims with cerebral palsey, brain damage and misshaped bodies cry out, “physicians, heal thyselves.”

How to Select Jury Members – Jury Selection

By Evan M. Goldberg

Selecting a Good Jury Takes Time 1 – Even the most accomplished trial lawyer approaches jury selection with trepidation. With considerable time and expense invested in a case, not to mention a client’s rights being at stake, so much depends on a system which is utterly random and rigged with obstacles. It starts with citizens getting summonses in the mail. Before appearing in court, they often bemoan their plight while reading inflammatory headlines containing propaganda on issues of the day. Then, once in court, they are subjected to questioning by attorneys who are not satisfied with an assurance of fairness, but want to actually explore the factors which might bear on their decision making. “What a waste of time,” groans the captive juror. After all, from what’s already been said, it’s clear who should win the case, he thinks. Even so, “I can still listen to the evidence and be fair.”

Relief then comes for the inconvenienced citizen with an announcement that each side will have fifteen minutes per round to question the panel of thirty jurors and that the case will be starting at 2 o’clock. Good! Now there won’t be any time to dig into deeply seeded biases and reservations which, to the jurors, are synonymous with their truth.

As preposterous as this appears, trial lawyers have frequently dealt with such a scenario, but hopefully no longer. Indeed, arbitrarily imposed time limits coupled with perceptions resulting from either personal experiences or a media driven nation serve to cripple the legitimacy of the process. We therefore applaud the actions of the Office of Court Administration in releasing their new booklet Implementing New York’s Civil Voir Dire Law and Rules (available on OCA’s website) and in creating a hotline to deal with questions of interpretation or for the reporting of non-compliance.

While the full text of the booklet is beyond the scope of this article, the OCA includes an admonition on time limits, with the suggested practice being an initial two to three hour voir dire, with discretionary status reports suggested thereafter. To the extent that more time is required, the Trial Lawyers Section unequivocally states that any practice impeding thoughtful and unfettered questioning of a potential juror’s viewpoints is anathema and must not be countenanced. And if jury selection takes longer than what a citizen thinks is appropriate, we submit that the trial bar knows better and that securing a fair trial for litigants is time well spent.

Voir Dire is both an art and a process and, indisputably, an important part of a trial. A detailed, time consuming approach is often essential. While no one is desirous of never-ending jury selection, the checks inherent in the adversarial system serve as a sufficient safeguard to ensure good faith practices.

Detailed exploration of biases would serve little purpose if a successful challenge for cause could not be brought when appropriate and placed on the record at the time requested when the situation can be properly explored and the remedy fashioned. To allow an attorney to make a record at a later time, in the assigned trial part, renders the remedy illusory. Once assigned to a trial part is no remedy at all, as opposed to later in a trial part when the remedies afforded from “making a record,” especially in civil cases, are illusory. Moreover, to rehabilitate a tainted juror with a catch all inquiry as to whether they could be fair and follow the law is contrary to the goal of having civic-minded, impartial jurors. Most are reluctant to admit that they can’t be fair and won’t follow the law. The pertinent inquiry runs deeper, with nothing less than justice as the sought outcome.

* By Evan Goldberg, Esq., Chair, NYSBA Trial Lawyers Section

Wrongful Death – Grieving Families Bill

By Evan M. Goldberg

The current law is unfair

Hasn’t changed since established in 1847; in fact, NY was the first in the country to establish a wrongful death law, consistent with its progressive nature and its place as a leader in our country; but many other states have gone far beyond that, so that we have now been left in the dust when it comes to leadership and fairness.

The wrongful death statute is not fair. No one can dispute it. It allows negligent persons and companies to kill the elderly, the unemployed and children and not be liable for the consequences. When there’s no pain and suffering, cases for children and the elderly are worth nothing, because they’re not wage earners and have no dependents. Try telling that to the grieving mother of a child just killed by a negligent driver on the way to school.

People are worth a lot more than the paycheck they bring home.

The country feels the same way. Many states all over the nation recognize that they need to compensate grieving families if justice is to be accomplished. In establishing the victims compensation fund after the 9/11 attacks, express authority was given to compensate the families for grief. At the time, Governor Pataki and the Attorney General both publicly applauded that decision because of the inability of the current law to properly compensate the tragically affected families.

Sometimes it bothers me personally that when there’s a high profile tragedy, everyone comes out of the woodwork to offer help, money and support but no such empathy is generated for individual tragedies. Earthquakes, tsunamis, terrorist attacks, murdered children in schools, all those victims and their families routinely get the support they need, emotionally and monetarily and that’s how it should be. But I also represent people whose deaths aren’t newsworthy, aren’t interesting. A person crossing in a crosswalk was mowed down by a driver looking at his cell phone. Happens all the time (in queens last night) but those things don’t always make the news and don’t get the public involved the way they get involved when there are a number of victims.

But what difference is it to the family? Are the parents of little Jimmy, killed when going to school, less grief stricken than the parents of James, who was killed when working for Goldman Sacks in the Twin Towers?

The tort system should treat all victims of negligence equally. The law doesn’t make any sense and, more than that, it’s dehumanizing and demeaning. I’ve had the misfortune of explaining the law to more than one grieving family in my career and there’s just no way of looking these people in the eye and pretending the law makes sense, because it doesn’t.

They ask how the law could be the way it is, and I tell them that, unfortunately, no one knows about the law or cares about the law until they need it, and then it’s too late. That’s the real problem facing personal injury lawyers when we come up here in Albany for a lot of our issues. We know that the public needs the law changed, but only those families on the other side of grief know why.

Process of Premises Liability Cases Slip and Fall Accidents

By Evan M. Goldberg

Overview of Premises Liability Cases

INVESTIGATION

INITIAL INTERVIEW WITH CLIENT

The importance of the initial interview with the client cannot be stressed enough.  A clear understanding of the applicable law is not possible without a thorough understanding of the facts and circumstances  of  a particular case.  Moreover, from the first meeting with the client, we need to be able to look forward and envision the day this case comes to trial-we must anticipate what we will be able to prove and what are the problems that we may encounter.  The following is a list of some information that must be ascertained at the time of the initial interview.

*What was the date and time of the incident?

*Where exactly did the incident occur?

i.e.,  At 100 Smith Street, in Stairway  “A”,  on the third stepdown from the 2nd story landing, between the second and first floors.

*What caused your client to become injured?

-Slipped on foreign matter located on a step

-Slipped on water coming from a leaking pipe in the bathroom

-Tripped on a pothole in a walkway

-Developed lead poisoning from ingestion of peeling paint

*Thorough and detailed description of the defective condition including measurement, shape, color, etc.

*What did your client see and feel immediately before the incident?  What were your client’s observations immediately after the incident?

*What were the surrounding conditions?

-Weather

-Lighting

*Where there any witnesses and/or people present in the immediate area?

*Who, if anyone, came to your client’s aid?  Were written reports made out regarding the incident?

*Who are the potential responsible parties?

-Landlord/superintendent

-Owner

-Repair company/elevator maintenance company

-Management company

*How long did the defective condition exist prior to the incident?

*Were complaints made about the defective condition prior to the incident? Who were they made to? Were they written or oral? Where and under what circumstances were the complaints made?

*Were attempts made to repair the defective condition prior to the incident?

*Were any photographs of the defective condition taken?

*Did your client have any discussions with any of the responsible parties regarding the incident?  If so, what exactly was discussed?

*Where and when did your client seek medical attention?  What did your client tell medical personnel was the cause of his or her injuries? What were his or her physical complaints?

*What has the course of medical treatment been?  What is the prognosis for the future?

TYPE OF PREMISES CASES

Once a thorough  client interview has been completed, it must now be determined as to what type of premises liability case exists.  Although all premises cases share similar elements of proof, the applicable law may vary depending on the exact type of case.  Moreover, we will need to do somewhat different investigation depending upon  the nature of the case.  The following is a list of some type of premises cases that may fit the facts of your incident.

*Slip and fall on foreign matter

*Slip and fall on  ice

*Trip and fall on a defective condition i.e., broken stair, pothole, broken floor tile

*Fall due to inadequate lighting or broken handrail

*Fire /explosion cases

*Failure to have smoke alarms or defective fire escapes

*Defective or tipping stoves

*Elevator cases including elevator misleveling and defective doors

*Burn cases including those due to scalding water; defective boilers and

defective or improperly placed radiators/pipes

*Lead poisoning cases

*Premises security cases

*Injury due to defective windows/doors

*Failure to properly remove garbage

*Failure to repair a leaking condition

*Defective basement doors

*Defective revolving doors

*Falling objects from buildings

*Defective skylights

*Ceiling collapse

*Special use

*Failure to have functioning window guards

ESTABLISHING THE ELEMENTS OF PROOF

RESPONSIBLE PARTIES

Once we determine the type of premises case that is applicable to your facts, we must undertake to determine who the responsible parties are.

1. Determine the owner of the building

*Request a records abstract search:  This will provide information as to who the last  owner of record is. (If the owner is a corporation, request the status of the corporation  from the Secretary of State – Corporation Division.)

*Who does the client send their rent checks to? Who is listed as the owner on the lease?

*Is there a management agent?

1. Repair and/or maintenance companies

*If the incident involves the negligent maintenance of something such as an elevator, we may find that the owner or superintendent of the building is willing to provide this information. As long as the case is not in suit and an answer interposed, we may freely speak to these individuals.

NOTICE

In almost every premises case, the success or failure of a case will depend upon the issue of notice.  It is important that notice be established at the outset of the case.

ACTUAL NOTICE:  If the plaintiff can show that the defendant knew about the condition, notice is easily shown.

*Did the client or others make oral or written complaints to the defendant or their representatives or agents?   If so, make sure to have the details as to when this occurred, whom the notice was given to and what was said.

*If the complaint was in writing, does the client have a copy, and if not, we will request the document during discovery.

*Was there a response to the complaint? Did the defendant or its employees attempt a repair?

*depending on the type of defect, if the building is a Multiple Dwelling, we will make a request for a violation search for the subject building from the Department of Buildings.  Actual notice can be established in this manner if the owner has been previously issued a violation for the same defect.

*Was the defect the subject of a prior landlord/tenant proceeding between the client and the defendant?

*Is the client aware of any prior accidents caused by the same defective condition?

CONSTRUCTIVE NOTICE:   In  the event that actual notice cannot be shown, constructive notice must be demonstrated.    Simply put, constructive notice is demonstrated if a defective condition existed for such an  unreasonably long period of time that in the exercise of due care, the defendants should have known of its existence.

*Constructive notice is more easily shown if the defective condition

is in a common area and is readily apparent to the public such as a broken stair in the lobby area of a  building.

*In event that the defect is located within a private apartment, we must  ascertain  whether or not the defendant was in the apartment for another reason such as to collect rent or make a different repair  and that the defective condition was readily observable.

*Establish through the client, or during the course of discovery, that the defendant conducted regular  inspections and/or routinely maintained the area where the defective condition existed.  Therefore, the defendants would have been aware of the condition.

STATUTORY VIOLATIONS:   Once we have have evaluated the nature of the defective condition and the type of premises case, we need to determine whether the defendant committed any statutory violations.

*If the building is a Multiple Dwelling, reference is made to the Multiple Dwelling Law, as well as the Housing Maintenance Code, Volume 6, Title 27, Chapter 2 of the New York City Administrative Code.  Other references include the Building Code, Volume 5, Title 27 of the New York City Administrative Code and the Rules of the City of New York.

DEFENSES:  during the investigation stage, it is also necessary to assess any possible defenses to the action as well as weaknesses.

*What is your client’s  comparative negligence,  if any?

*Are there inconsistent histories in the hospital or medical records?

*Is the incident unreported and/or unwitnessed?

*Are there problems with notice?

Note that no case has perfect record keeping or documentation.  What is important, however, is that we are prepared for a lack of support or contradictory information that exists.

DAMAGES: It is also necessary to gather all hospital and medical records at the earliest stage possible in order to assess the value of the case and check to see if the histories provided to the medical treaters  are consistent with the facts and circumstances of the case as given by your client.  If they are consistent, that strengthens the case; if they are not, there may be reasonable explanations (i.e. mistake, translation, lack of attention to detail in record keeping).

WITNESSES

EYEWITNESSES:  during the investigation stage,  it is  necessary to ascertain whether anyone witnessed the accident.  In the event that individuals did witness the occurrence, we must immediately get a witness statement from these individuals as to what they observed and whether or not they have given statements to other parties.

NOTICE:  As stated before, notice is extremely important to establishing a premises case.  In addition to the client, is there anyone else who can establish or confirm notice as to the defective condition?  If yes, we must get a witness statement immediately.

EXPERTS:  Depending on the type of  premises case, you may need an expert witness to assess the defective condition

PHOTOGRAPHS/ACCIDENT REPORTS

*Photographs should be taken immediately of the defective condition, as they will  confirm the client’s description and preserve a record of the condition, as it will likely be repaired or altered at the time of trial.

*Notice may also be established through a photograph.

*All accident reports, such as ambulance reports, police reports or reports from other city agencies should be requested immediately. These will be important in confirming the client’s version of the occurrence and/or the existence of a defective condition.

*Preservation of a defective condition:  Whenever possible, efforts should be undertaken to preserve a defective condition i.e., if a stove is defective it should be preserved at least until such time as your expert can examine and evaluate it.

TOPICS OF SPECIAL INTEREST IN PREMISES CASES

OUT-OF-POSSESSION LANDLORD

While an out of possession landlord is generally not liable for conditions upon the land after the transfer of possession and control, where one contracts to repair or maintain the property, such out of possession landlord may be held liable for  defects thereon.   There is also liability for breach of a non-delegable duty. Examples of repair and maintenance include the following:

Examples:

*Landlord agrees to shovel the snow

*Landlord agrees to repair heaters

*Landlord responsible for maintaining parking lot

Remember:  Where there is a non-delegable duty pursuant to law, the landlord will be held liable regardless of whether or not they are out of possession.

INDEPENDENT CONTRACTOR

A landlord who hires an independent contractor may be held liable for that contractor’s act if (1) the employer has assigned work to the independent contractor which the employer knew or had reason to know involved special dangers inherent in the work.  (2) the plaintiff’s injuries were caused by a defect in the premises created by the independent contractor when the employer is under a duty to keep the premises safe or (3) the employer had negligently  hired an incompetent contractor (see, Bryant  v. Presbyterian  Hosp., 304 NY 538.

Examples:

*Landlord held responsible  where independent contractor failed to

provide sufficient illumination

*Landlord failed to adequately repair stairwell

*Landlord failed to fix the door-locking intercom system

*Landlord failed to fix a handrail

*Landlord failed to install window guards.

RECURRENT CONDITION:

A defendant who had actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific recurrence.