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Archive for February, 2011

We Judge Liability On What Is Finished, Not What Is Attempted

February 9th, 2011 1 comment

Accident while shoveling snowGenerally, property owners in the City of New York and villages on Long Island owe no duty to pedestrians to remove snow and ice that naturally accumulates on the public sidewalk in front of his or her premises. A failure to shovel may result in a fine from the local municipality, but no liability to a third-party plaintiff. So what happens if you, as a property owner, begin to clear the snow and ice from your property and do a poor job of it? New York Courts have found that once efforts have been made to clear the snow and ice from the public sidewalk, a property owner can be found liable in negligence where his or her acts create or increase the hazards inherent in those conditions.

Having undertaken to clear the snow and ice, a property owner is obligated to exercise reasonable care in doing so. Failing to do so can lead to a jury reasonably inferring that the dangerous conditions present are the result of an incomplete and incompetent snow removal effort. It can also be inferred that the property owner’s conduct created or increased a hazard that would not have existed but for the property owner’s actions.

When the inevitable storm hits our area again (and we know it will), make certain you have the necessary tools, shovels, snow-blowers, salt and sand, to start and most importantly finish the job. It is prudent to make sure you have used all reasonable care to clear the dangerous conditions from your property to avoid slips and falls which could result in a negligence action against you. Remember, your children are a cheap and effective way to remove snow and ice, after all, shouldn’t they work for their day off?

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The Remedy for Wrongful Death Is Just Plain Wrong

February 5th, 2011 3 comments

When the negligence of a person or entity causes the death of another, the estate of the deceased may bring a lawsuit for “wrongful death.” In many ways these lawsuits are the same as any other personal injury action. Both suits require the plaintiff to prove that the defendant was liable . . . for negligent or intentional acts. Both suits entitle the victim or his or her heirs to recover damages for economic loss and pain and suffering. But what happens when the deceased victim is unemployed and dies instantly at the scene of the accident? The New York wrongful death law does not give the decedent’s loved ones the right to recover money damages. Sounds a bit unfair in the abstract, but put it into context and think how truly unfair it is. So we’ll call our victim “Grandma.”

Grandma lives with her cancer-stricken daughter, disabled son-in-law and their six autistic children. She’s retired and living on social security. But she’s still active and vital. She bakes a perfect pumpkin pie, helps out with the kids homework, pitches in to cook and clean and still has something left on her curve ball. She’s loved by all. One day she walks to Waldbaum’s to buy a quart of milk and some Fig Newtons for the kid’s after-school snack. She carefully looks both ways as the stoplight shines its steady green beam upon her. As she takes measured steps through the crosswalk, she is struck by a speeding drunk driver smoking a crack pipe. Grandma dies instantly.

Should Grandma’s family be compensated? The New York State legislature says “No!” Strictly applying the wrongful death law, Grandma’s family is not entitled to compensation. Because she was retired, her estate suffered no loss of income. And because she died instantly, she didn’t suffer pain. The law provides no remedy.

As he drank the hemlock, Socrates philosophized “the law is hard, but the law is the law.” If you don’t like it, write to your legislators and tell them to change the law. Grandma’s family will thank you.

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