The Kiley Law Firm Blog

As reported in the New York Law Journal today, the Port Authority of New York and New Jersey has governmental immunity against liability for the 1993 bombing of the World Trade Center by terrorists who parked an explosive-laden truck in its underground parking lot, a narrowly divided state Court of Appeals ruled this morning.

Six people were killed in the attack and hundreds were hurt. Many of those injured and the survivors of those killed argued in suits that the Port Authority ignored repeated warnings by security experts about the vulnerability of the parking garages to bombers.

Today’s ruling overturns a decision by the Appellate Division, First Department, which found the Port Authority 68 percent responsible for the attacks and the terrorists 32 percent responsible. The Port Authority has argued for years that it makes no sense to hold the agency twice as responsible for the damages for an attack willfully launched by terrorists.Now a 4-3 majority of the state’s highest court has accepted the agency’s position.  The governmental immunity doctrine is “intended to afford deference to the exercise of discretion by the officials of municipalities and governmental entities,” especially with regard to the allocation of limited police resources, Judge Theodore T. Jones Jr. wrote for the majority.  “Governmental entities cannot be expected to be absolute, infallible guarantors of public safety, but in order to encourage them to engage in the affirmative conduct of diligently investigating security vulnerabilities and implementing appropriate safeguards, they must be provided with the latitude to render those critical decisions without threat of legal repercussions,” Judge Jones wrote in Matter of World Trade Center Bombing Litigation v. Port Authority of New York and New Jersey, 217.

It’s been a memorable August on Long Island punctuated by two rare natural disasters – an earthquake and a hurricane. The earthquake did little more that shake our buildings and our nerves. But Hurricane Irene’s unleashed fury caused billions of dollars in property damage. Yesterday’s Newsday headline pronounced that the LIPA bill to restore power would exceed $100 Million. Surely we’ll all pick up a piece of that unwelcome tab; but what about the individual costs that many people incurred. Power outages caused basements to flood, freezers to defrost and young children to go through video-game withdrawal.

The storm was the cause for disaster but its proxies were the trees which downed our power lines. Some were uprooted and others lost limbs. But whether they were killed or merely became amputees, their kamikaze missions claimed thousands of victims.

An Irish client of mine was knocked to the ground by a large falling tree limb. He sustained minor injuries but was saved from being serious hurt when the fence he walked beside deflected the brunt of the blow. When a witness told him that he was lucky the fence was there, he retorted with typical Gaelic sarcasm that if was really lucky he would have been walking on the other side of the street.

Thankfully, most of the casualties were inanimate, but the associated financial pain was acute nonetheless.

So after you’ve paid for the damage to your car, roof or fence, do you have any recourse against the owner of the tree? The answer is . . . maybe. Property owners owe a duty of care to neighbors and passersby to keep their properties free from dangerous conditions. However, the owner is not responsible in the event an “act of God” causes the tree to fall. Irene was a bad storm, but bad storms are expected events. God wil lnot take the blame if your obviously rotted tree falls in a rainstorm because you didn’t bother to cut it down.

The owner’s duty of care is only triggered when he knows about the dangerous condition (actual notice) or should know about it (constructive notice). The law is different for municipalities such as towns and cities which are only liable if they receive prior written notice that the tree presents a hazard. Even then, they are exempt unless the aggrieved party serves written notice of his intention to sue within ninety days after the accident. (See §50 (e) of the Municipal Law of the State of New York). Municipalities are otherwise exempt from liability by governmental immunity, a hangover from feudal times when being a peasant was never pleasant.

Next: What to Do if You’ve Been Damaged

Personal injury plaintiffs are routinely derided by the general public as phonies. Certainly, there are unscrupulous plaintiffs and lawyers who bring smear-job lawsuits. But too few people are cognizant of the dark side of the defendant’s defense.

If you bring a lawsuit for personal injuries, §3121 of the Civil Practice Laws and Rules of the State of New York (CPLR), permits the defendant’s insurance company to hire its own doctors to physically examine you. The purpose is obvious. Defendants have the right to verify whether a plaintiff is actually injured and the extent to which the injuries are permanent and/or disabling. Defendants euphemistically refer to these tests as “Independent Medical Examinations” or “IME’s” because the CPLR gives them the right to evaluate the plaintiff separately from what the plaintiff and his doctors may claim. To describe the defendant’s physical examination as “independent” lends an aura of righteousness to the endeavor as though only the defendant’s doctor may uphold his sacred Hippocratic oath to practice his profession ethically and without outside influences. Nothing could be farther from the truth. The doctors who conduct the examinations are paid by the defendants’ insurance companies. They serve at the whim of the insurance company. In so doing, many take a “hypocritical” oath. The doctor who too often determines that a plaintiff is seriously or permanently injured finds himself out of favor with his patron and unemployed. But certainly not all.

More often than not, the defendant’s doctor renders his services at a bulk rate. He may be paid only $100.00 per examination. How does he do it? Volume. He overbooks his appointments and examines plaintiffs in assembly-line fashion. He doesn’t dictate a full report but uses fill-in-the-blank templates forms to save time. Rare is the occasion when the physician spends more than five minutes examining the plaintiff. Rarer still is the occasion when the physician determines that the plaintiff is truly injured as a result of the defendant’s negligence.

Generally, there are five different methods by which the defendant’s doctor plies his tawdry trade to refute a plaintiff’s claim of injury:

(1) IT’S ALL IN YOUR HEAD: By this approach the doctor pejoratively references the plaintiff’s symptoms as “subjective.” If the plaintiff says that he has pain and can’t move his arm, the doctor claims that he has objectively measured the plaintiff’s range of motion and finds that he is not so restricted or that his range of motion is “within normal limits.” But what is normal? A thirty-year-old athlete can swing his arm in a wider circle than a fifty-year-old fat man who won’t get off the couch unless he needs to reach the cooler. Most times the examiner makes no distinction. God help the couch potato.

(2) NOT MY FAULT: Another twisted method is to claim that the plaintiff’s problems are “pre-existing” or the result of “degeneration.” True, few people more than forty can avoid the aging process. But how may the IME doctor explain that the plaintiff was asymptomatic until his Volkswagon Beetle was struck from behind by a teenager in his father’s Range Rover? Too frequently they ignore such facts or do not let themselves be fooled by the truth.

(3) THIS TOO WILL PASS: Sometimes IME doctors are faced by the physical evidence that the plaintiff is irrefutably and uncontestedly injured. How then may he serve his master? In such a case, the doctor must resort to a fallback position – “the plaintiff’s injuries are temporary.” Sure, little Joey still limps four years after breaking his ankle. Shortly he will fully recover.

(4) HALLELUJAH! JESUS SAVES: Another artifice in the IME arsenal is the technique wherein the defendant’s doctor proclaims the plaintiff remarkable recovery. Like a Pentecostal Preacher, he asserts that the plaintiff may throw away his crutches and walk.

(5) THE RORSCHACH APPROACH: Perhaps most sinister are the physicians who do not physically examine a plaintiff, but “review” the radiological records instead. The doctors who prepare such reports are uniquely positioned to practice medicine without a patient. Behind the cloak of a shadowbox they offer their not-so-professional opinions. Ask one man to look at an inkblot and he sees a monkey with an accordion. The next man sees a ballerina smoking a cigar. So if the plaintiff’s radiologist says that an MRI film shows a herniated cervical disc, the defendant’s doctor may say that the findings are evidence of degenerative osteophyte formations. Put the film in front of the jurors and call it what you want. The average person can’t tell. As Harry Truman said, “if you can’t convince them, confuse them.”

The sport of golf is enjoying unprecedented popularity these days.   Long Island is home to literally hundreds of private and public golf courses,  many offering some of the finest golf courses in the Country.    New private and quasi-private golf clubs continue to be built, particularly in Suffolk County.  In addition, despite the sluggish economy, the number of corporate and charity golf outings seems to be growing exponentially.  The combination of these factors has led to an increasing menace which threatens public health……… the “hack” golfer.

So what happens if you are injured on (or off)  the golf course as a result of a stray ball or other condition?  Do you have any remedies?  Unfortunately, with slim exceptions, the answer is usually, “No”.

With many sport related injuries, the courts often apply the doctrine of “Primary Assumption of Risk”  which holds that individuals who engage in a sport or recreational activity consent to assume the commonly appreciated risks that are inherent in and arise out of the nature of the sport.   Thus, the golfer should be keenly aware of the commonly appreciated risks associated with golf, of which the courts have found many, inluding the following:  1) being struck by an errant golf ball even when a fellow golfer fails to warn of his intent to strike  the ball. See Anad v. Kapoor, 15 N.Y. 3d 946;  2) slipping and falling while descending a staircase leading from cart path to tee box. See Mangan v. Engineer’s Country Club, 79 AD 3d 706; 3) slipping on wet grass. See Lombardo v. Cedar Brook Golf & Tennis Club, 39 AD 2d 818; and falling in mud.  See Carracino v. Town of Oyster Bay, 247 AD2d 501… all situations where the courts dismissed the injured parties claims.    

And for the golf “hackers” out there,  take solace (along with the author) in knowing that the New York State Court of Appeals has determined that generally, a golfer may not be held liable to the individuals located entirely outside the boundaries of the golf course, who happen to be hit by a stray ball.  See Rinaldo v. McGovern 78 NYS 2nd 729, where the court dismissed the claims of the plaintiff who was struck by an errat ball while driving his motor vehicle  on a public road abutting the golf course.  

So keep taking that driver out of the bag… and keep a good eye on your fellow golfer.