The Kiley Law Firm Blog

In New York, a dog owner can be held liable for a dog bite under a theory of strict liability if the owner was, or should have been, aware of the dog’s vicious propensities.   But what if your dog simply has a propensity to playfully jump on people?  A Brooklyn Supreme Court judge recently granted summary judgement to a mother in law who was injured when her son in law’s dog jumped on her causing her to fall down a flight of stairs.  In Bannout v. McDaniels 9920/09, NYLJ 1202479668419, at *1 (Sup., KI, Decided January 4, 2011) the court conlcuded that the dog’s proclivity to jump on people was sufficient to establish strict liability against the dog’s owners.   “A known tendency to attack others, even in playfulness, as in the case of an overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act” Anderson v. Carduner, 279 AD2d 369, 370 [2001], quoting Thirlwall v. Galanter, 66 Misc 2d 88, 90, quoting Prosser, Torts, at 515 [3d ed

In New York, property owners owe a duty of care to remove dangerous snow and ice conditions on their property.   If snow or ice exists on a person’s property, they could be liable for a slip and fall if they were negligent in failing to remove the snow or ice.  Negligence can be defined as: acting, or failing to act, in a reasonable manner to prevent foreseeable risks of harm to persons. 

So what constitutes acting in a “reasonable manner” when it comes to the removal of snow and ice?  Firstly, it depends on how long the snow and ice condition existed.  Under the “storm in progress” doctrine, a property owner is not required to clear snow and ice until a reasonable time after the storm ceases.   Further, as with any dangerous condition on property, a landowner is only liable if they were on notice of the condition- either actual or constructive notice.  Constructive notice will be found where a condition had existed for such a long period of time that the property owner, in the exercise of due care, should have recognized it and remedied the condition.   In New York, there is no bright-line rule for how long an icy condition must exist in order to constitute constructive notice.  In New York City, the Administrative Code Section 16-123 gives property owners four hours after a storm ceases within which to clear any dangerous snow or icy condition and until 11:00 a.m. where the storm occurs overnight.

Secondly, the reasonableness of a property owner’s actions or inactions will be judged by the methods employed for the removal of the snow and ice.  Juries have repeatedly weighed factors such as whether the property owner threw down salt, ice melt and/or sand and whether they used shovels, ice picks or a snow thrower in determining whether an accident was the result of a property owner’s negligence or simply an unavoidble hazard caused by  nature.

Believe it or not, in America, more adults have pets than children.  Most people consider their pets as part of their families.  A 2007 survey of the American Animal Hospital Association found that 83 percent of pet owners refer to themselves as their pets “mom” or “dad”.  

So what happens to these pets when their “parents” die or become incapacitated?   The best way for an owner to ensure the continuity of care for their pet is to establish a pet trust.  New York’s Estate Powers and Trusts Law § 7-8.1 allows for such trusts for the care of pets and protects trust funds from being used for anything other than the pet’s benefit.

Many people have traditionally provided for pets in their will.  But this is a flawed plan and can pose many problems.  First, a will is usually not read or produced for days, if not weeks after the owner’s death.  Second, the caretaker named in the will holds only an honorary position.  He/she may abscond with funds intended to care for the pet or leave the animal in a shelter and the courts don’t have the authority to enforce the owner’s instructions.  So, by example, if you write in your will that you leave $10,000 to your niece with instructions that the money is to be used for your beloved beagle Fido, your niece can pocket the money and abandon Fido without the fear of any legal reprisals. 

Courts, however, can enforce the owner’s instructions if they are contained in a pet trust.  Additionally, the terms of a trust can be enforced during the owner’s lifetime, whereas the terms of a will only apply after the owner’s death- significant for the pet of an owner who becomes incapacitated and unable to care for their pet.   An owner who becomes disabled an unable to care for their pet can direct in their trust that the caretaker bring the pet for visits.  The effect a pet can have on people’s physical and mental health is well documented.  Whether its playing a game of catch with a stroke victim or being a calm, familiar face for an owner suffering from the diseases of old age, pets can play an important role in a sick person’s life.

So how does it work?  First, the owner should establish a pet trust. Second, the owner’s will should be written or amended to name the trust and arrange for its funding.  Every pet trust, of course, should name a trustee.  The trustee disburses funds to a named caretaker, who shall carry out the owner’s instructions for the care of the pet.  These instructions can be detailed- from the food the pet prefers, to the park the pets likes to walk, to the owner’s preferred vet or groomer.  A client with more than one pet can direct that the pets live together.   

How much money should be placed in the trust?  This can be tricky.  You’ll want to feel comfortable that your pet is well provided for.  However, if you fund the trust lavishly, you open the door to legal challenges.  Other potential heirs might seek to invalidate the trust claiming that you were not of sound mind.  Therefore, always give good reasons in the trust document for the amount you transfer to a pet trust.  This will substantiate your good judgment and enforce the pet trust in case of a conflict.

There seems to be a population explosion of dogs on Long Island.  Walk around Manhasset and you will see or hear a dog in practically every home.   For all you dog owners out there, should you be concerned if Rover is not on his best behavior when the mailman or kids walk by?  Absolutely.  

In New York, a plaintiff injured by a dog bite can recover damages against the dog owner under a theory of strict liability if the plaintiff can prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was [kept], knew or should have known of such propensities.   The proof is generally made by the testimony of the injured party or a neighbor stating that the dog had bitten somebody in the past or that the dog had previously exhibited viscious or menacing behavior.  

Many dog owners could be subjecting themselves to personal exposure as some insurance companies are exempting coverage on a homeowners’ policy for losses caused by certain breeds of dogs.  

A landlord can be liable for a tenant’s dog if the landlord had notice that a dog was being harbored on the premises, and that the landlord knew or should have known that the dog had vicious propensities.

In addtiion to civil liability exposure, the owner of a dog who has bitten a person can be subject to penalties and controls pursuant to New York State Agricultural and Markets Law.  The penalties on the owner of a dog who has attacked can range from a fine to the possibility of one year in jail.  A hearing can be held in court to determine whether the dog is a “dangerous dog.” Finding a dog “dangerous” allows the court to force the owners to take action to attempt to make sure the dog interacts safely with others, including: requesting that the dog to be leashed or muzzled at all times in a public area; requesting the owners to confine the pet (by fencing it, etc.) for a specific amount of time; having the dog trained and possibly putting the dog down or permanently confining the dog.

Take a look around you while your driving. Chances are you’ll see people not only talking on their cell phones but conducting business on them: texting, e-mailing, even sending and receiving documents.  Today’s technological age means people can work anywhere, anytime, but this convenience comes with a price for business owners: Distracted drivers who hurt or kill someone expose their employer to potential liabilities for their mistake.

The statistics are telling. An estimated 200,000 crashes a year are caused by drivers who are texting, according to the National Safety Council. People who talk on cell phones while driving are four times more likely to get into crashes that cause serious injury than people who don’t, the Insurance Institute for Highway Safety has found.

Recent court decisions illustrate an alarming trend for employers: If your employee causes an accident while using their cell phone to conduct business, your company could be liable, even if the employee is not acting on company time. In 2004, a Virginia attorney hit and killed a teenage girl at 10:30 p.m. while using her cell phone to conduct firm business. Phone records from the attorney’s firm reportedly showed that she was making work-related calls at the time of the accident. In 2007, a defendant settled a personal injury lawsuit for $5.2 million with an Atlanta woman who lost her arm after being rear-ended by one of the company’s employees. The employee was driving a company sedan and using her company-issued cell phone at the time of the accident.

At common law, an employer was always “vicariously” liable for the negligent acts of their employee if the employee was acting “within the scope of their employment” when the accident occurred. This rule was usually interpreted to mean that an employee driving to and from work, on their lunch hour or not engaged in traditional business-related activities was not acting within the scope of his/her employment.
But as the cases above show, the law is changing. Now an employer may be liable even if the employee was driving his or her own car or making a work-related call outside of regular business hours.

In addition to being vicariously responsible, an employer may be directly negligent for the employee’s actions. An employer has a duty to exercise reasonable care for the safety of the public whenever its employees are acting within the course and scope of their employment. Thus, if the employer knew, or should have known, that employees were using their cell phones while driving for work-related purposes, and did not act affirmatively to stop the conduct, the employer may be liable.

The lesson: employers should have a written policy that bans the use of cell phones for business-related purposes while driving and properly train and educate employees on its policy.

Get into an accident with a rental car?  Recent federal law, which preempts New York’s vicarious liability law, insulates the Herz, Avis and Dollars of the world from any liability for the negligence of the rental car driver.  To add insult to injury, the rental companies are only required to carry $25,000 in coverage on their vehicles.  Add that to the fact that many rental car drivers do not own their own vehicles and carry no personal insurance and you could be in a situation where you have little hope of adequate compensation for a serious injury.   

And how about those New York taxi cabs… they are required by law to carry a  liability policy of no less than $100,000 but I’m sure you would not be shocked to know that they NEVER carry more than that.  Your own automobile SUM policy will insure you and members of your household for accidents in which you are a passenger in another vehicle.

The only way to ensure adequate coverage for yourself and your family is to purchase SUM coverage on your auto policy.

Sign it -it doesn’t matter anyway.   You can’t take your kid to a birthday party these days without some teenage party worker handing you the waiver of liability form before you enter the building.  You know- the form where you purport to waive any and all claims of liability against the establishment if little Johnie gets hurt.  Well, if the party is 1) at a pool, gym or place of amusement or recreation; and 2) the owner receives a fee for the use of the facilities- then that waiver form is worthless. New York’s General Obligations Law states that all such agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence are void and unenforceable.

General Obligations Law Section 5-326 states: every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

So why do the owners of such establishments continue to make people sign the forms?  Simple…. deterrence!  People might think twice before contacting a lawyer if they believe they have signed away their rights. 

So the next time your drop little Johnie off at lazer tag or Chuck E. Cheese, take solace in knowing that the waiver form is worthless.  And if he slips on ice cream and cracks his head open- give us a call.

It happens oh so frequently.  I meet a recent accident victim for a consultation in my office.  They’ve been rear-ended or struck by some driver blowing a stop sign and they’ve sustained a fractured leg or arm or some other serious injury.  They need surgery and will be out of work for months.  At first glance they have a great case right?  Clear liability, serious injury, economic loss.  Hold on.  The driver and owner of the other vehicle are insured with the minimum liability policy required by law- $25,000. per claimant/$50,000 per claim.  Or, worse yet, they have no inusrance.  As is so often the case, the “case” is only as good as your ability to collect.   I then ask the question, ” Do you have SUM coverage?”  The usual response is, “What is SUM coverage?”

Dangerous drivers are one of the greatest hazards on the roads today. Dangerous drivers with “minimum limit” insurance policies are an even greater hazard.  You can’t always protect yourself from the dangerous driver, but you can protect yourself from his/her minimum liability coverage.

The minimum liability coverage required by the State of New York is “$25,000/$50,000”.  This means $25,000 coverage per person and a maximum of $50,000 per accident.  So, if you are injured because of the negligence of a driver holding these minimum limits, then the maximum amount which his/her insurance company is required to pay to you as a result of its insured’s negligence is $25,000.  If more than one person was also injured with you in that accident, the insurance company’s maximum exposure would be $50,000 to all injured parties.  Now consider the likelihood of being reimbursed for your losses if four or five persons sustained serious injuries in that same accident.  No matter how many persons are injured – and no matter how badly they are injured – the insurance company cannot be required to pay more than a total of $50,000 to all of the injured parties.

Certainly, you do not have to settle for the minimum insurance limits.  You can always proceed to trial and take your chances against the driver who was responsible for your injuries.  However, many drivers who carry minimum limit policies have no assets to lose and are virtually “judgment proof”.

The foregoing scenario is hypothetical- but hypothetical all too frequently becomes reality and we have frequently represented clients who had no hope of appropriate compensation because they were injured by underinsured drivers.  You can, however, protect yourself and the members of your household from underinsured drivers by obtaining supplementary underinsured and uninsured motorist coverage (commonly referred to as ”SUM”).  SUM coverage is a hedge against the driver who is uninsured or who has low coverage limits.  Here’s how it works: For an additional premium (in most cases not more than a few dollars) you can purchase SUM coverage up to the limits of your liability coverage.  In the event you are injured in an auto accident with an uninsured or minimally insured driver, a claim can be made against your own policy for the difference in coverage.  For instance, if the negligent driver has a minimum policy of $25,000/$50,000 and you have SUM coverage of $250,000/$500,000, you can pursue a claim against your own policy for additional damages up to $225,000 per person and $450,000 per accident. SUM claims are made through an arbitration proceeding and, as a result, are often concluded in months, rather than the years it can take to negotiate a personal injury case through the court system.

Despite the much needed benefits, this type of coverage is frequently overlooked.  So many people shop for car insurance by looking at the bottom line.  They get the cheapest policy they can buy and they fail to consider the real costs involved.  They do not take the time to consult with an insurance professional to consider their real needs and the suitability of the total policy.  There is more to car insurance then “collision or no collision”. Many of our clients have told us, after the fact, that they purchased the minimum liability no collision policy because “the car was old” and “they had no assets and didn’t fear a judgment”.  What these people failed to consider was the benefits of protecting themselves and their loved ones from the many uninsured and underinsured drivers on the road.

So how much insurance is adequate and how much will it cost?

You can only determine how much insurance is suitable for your needs by consulting with an insurance professional. Still, if you want to protect yourself you should carry a minimum of $100,000/$300,000 – that is $100,000 per person and $300,000 per occurrence. This way you can protect your personal assets in the event that you were negligent. In addition, you will afford yourself the opportunity to purchase SUM coverage of the same limits -so that if you are injured by an uninsured or underinsured driver you too will be protected.

Medical Malpractice Liposuction

In Bellevue, Washington, a wrongful death lawsuit was filed last week, claiming both medical malpractice and consumer law violations. These were in response to a liposuction procedure that claimed the life of a 28-year-old woman in May of 2009.

The lawsuit names both Bellevue clinic as well as the doctor who performed the fatal procedure, as defendants. This filling comes only a month after the Washington State accused the doctor of “unprofessional conduct”.

To read more about this, click here.

Bed bugs are truly pests.

Hello, Internet Surfers. I am excited to be posting my first blog entry. As a 2011 New Years Resolution of mine, I am off to a great start. I aim to post something new at least every week. But i will try to make it more often than that.

Today, I am going to point you to a story that just came out in the NY Times (Published: January 2, 2011), ‘ The Bedbugs Are Gone, but So Is All She Owned.’

The story illustrates the devastation that bed bugs cause people, and the reason that hotels, moving companies, and many other businesses should be paying close attention to these little critters.  Please post your thoughts and comments as to who is to blame in these cases.