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What if the Wicked Witch Had Just Hired a Lawyer Instead . . .

July 8th, 2016 Comments off

Almira Gulch a/k/a the Wicked Witch of the West, as Executor of the Estate of the Wicked Witch of the East, deceased v. Dorothy Gale

United States District Court of Kansas

Index No.: 20154-1939

Hon. L. Frank Baum, U.S.D.C. Senior Judge Presiding

Plaintiff counsel: Margaret Hamilton, Esq., Hamilton, Walshe & Lewis, LLP

Defense counsel: Raymond Bulger, Esq., Bulger, Haley & Lahr, Esqs.

MEMORANDUM AND ORDER

History


The plaintiff, who was the decedent’s sister, qualified and was appointed as Executor for the decedent’s estate pursuant to the decedent’s Last Will and Testament.  Thereafter she brought an action for conversion of property and wrongful death in the Supreme Court of the Magical Land of Oz.  Defendant answered and made a motion to remove the case to this court, the District Court of the United States for the State of Kansas.  Removal was granted based upon federal diversity jurisdiction as enumerated in 28 U.S. Code § 1441, titled “Removal of Civil Actions.”

The case comes before the court on two motions.   The first, by the plaintiff, is to dismiss the action based upon a claim of  forum non conveniens.  The second, by the defendant, is for summary judgment on the wrongful death claim on the grounds that, as a matter of law, she is not civilly liable for the death of the decedent.

Facts

On July 23, 1939, the defendant, Gale, finding herself suddenly engulfed by a tornado and unable to reach the safety of her family’s storm cellar, sought safety with her dog, Toto, in their residence.  Thereafter, the storm became one of such great magnitude and extraordinary power, that it lifted the residence off its foundation and propelled it into the air and thus into the eye of the storm.  The residence came to rest in Munchkinland in the Magical Land of Oz with great force and struck the plaintiff’s decedent causing her to sustain serious personal injuries and to die.  The defendant (and her little dog, too) survived the crash.

The defendant may have been disoriented by the crash, as her description of its locale, its inhabitants, and her recitation of the subsequent course of events is fanciful and less than credible.  There is evidence that she may have suffered a concussion upon landing.  Alternatively, she may have been under the influence of hallucinogenic drugs, as she testified that at one point she fell asleep in a field of poppies.

Although the defendant’s tale is farcical, her counsel contends that it is supported by an independent witness.   The plaintiff alleged that the man was brainless.  Nevertheless he very articulately and intelligently testified at deposition that the defendant’s description of the location was accurate and that Munchkinland is a real place in the land of Oz.  Furthermore, he testified that it is the beginning of a Yellow Brick Road that he and the defendant later traveled intending to meet someone named “the Wizard.”

Plaintiff’s counsel claims that the witness’ testimony is irrelevant and that defendant’s  counsel offers it as a “straw man argument” which has no relevance to the issue of whether the defendant was  negligent or committed an intentional tort.   In other words, counsel claims that the witness’confirmation of the defendant’s description actually refutes an argument that is not germane to the plaintiff’s claims.

Two other witnesses were subpoenaed to appear at deposition.  One, a recent heart transplant recipient, was excused for medical reasons.  The other apparently fled the jurisdiction rather than testify – a cowardly act, by any measure.

By the wrongful death claim, the plaintiff pled liability based upon alternative theories of intentional tort and negligence.  Upon information and belief, the Munchinland  District Attorney investigated the accident but refused to prosecute for manslaughter,  as there was no evidence that the defendant intended to crash the house in which she was flying.  The defendant had no prior contact with the decedent nor is she known to be a member of any extremist terrorist organization.   The plaintiff subsequently amended her pleading to withdraw the allegation of an intentional tort and, now, relies soley upon the negligence claim.  The defendant has denied all allegations of negligence and it is this issue that lies before the court.

The plaintiff seeks compensation for (1) the decedent’s conscious pain and suffering, (2) the value of support and services the deceased provided to her family, and (3) burial expenses.

In her defense, the defendant argues that the decedent died upon impact, or, alternatively, was immediately rendered unconscious.  Therefore, she did not suffer conscious pain.  Although there were no emergency medical personnel who attended to the decedent at the scene of the accident, there were several witnesses including members of a candy merchant’s guild and employees of a local sleep clinic.  All of these testified that the decedent did not appear to be breathing after she was struck by the house.  Their opinions were confirmed by the local coroner who quoted, “As coroner I must aver, I thoroughly examined her.  And she’s not only merely dead, she’s really most sincerely dead.”   To date, the plaintiff has offered no competent medical evidence that the decedent survived the crash for any length of time, but that issue is yet to be resolved and the court reserves judgment.

The decedent was unmarried and childless.  The plaintiff alleges that her sister supported her, but the defendant disputes this and claims that the plaintiff is independently wealthy.  She asserts that the plaintiff lives in a castle and employs a fleet of Flying Monkeys and Winkie Guards.  The source of the plaintiff’s wealth is under investigation by Ozian Federal Authorities  who suspect that the Witch, the Monkeys and the Guards have derived income, directly or indirectly, from a pattern of racketeering activity including kidnap for ransom, menacing and extortion.  Although formal charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act, have not been brought against this group, the allegations, if accurate will likely disprove the plaintiff’s claim that she was supported by the decedent.

The defendant also challenges the plaintiff’s claim to have incurred burial costs.  After the coroner declared her dead, a torrential rainstorm prevented Munchkins from retrieving the body.  Later they recovered the decedent’s hat, dress and coat piled in a heap, but the  decedent’s body was not found and seemed to have melted away.

Nevertheless, for the purposes of this motion, I will presume the plaintiff’s damages under the wrongful death claim to be genuine.

The plaintiff also asserts that after the crash, the defendant absconded with the decedent’s personal property – to wit: a pair of Ruby Slippers, value unproven, but alleged to have magical powers.  The plaintiff claims that the defendant unlawfully appropriated the slippers.  The plaintiff claims that they were gifted to her by one of the decedent’s distant relatives who glued them to her feet.

In any event, the conversion claim is not the subject of the plaintiff’s summary judgment motion.

Legal Analysis

The common-law doctrine of forum non conveniens provides a federal district court with the discretion to decline to accept jurisdiction over an action in favor of a more convenient venue where the interests of justice indicate that the action should be tried in another forum. See, e.g., Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 429 (2007); Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003).  Under the doctrine, a district court has the inherent power to decline to exercise jurisdiction even where venue is proper.  The defendant believes that, as a witch, she cannot get a fair trial inasmuch as Kansans are by reputation, conservative and bible-thumping Christians.  While the court is sympathetic to the defendant’s concerns, she is not likely to find a more sympathetic jury in any other jurisdiction.  The plaintiff’s motion is denied.

Previously, the plaintiff moved pursuant to 28 U.S.C. §144 demanding that this Court recuse itself.  She claimed that this Court was unable to perform its judicial duties impartially, competently and diligently because she is green and the Court is Caucasian.  The Court denied her motion.  As no sitting federal district court judge is green, the “rule of necessity” as enunciated by Chief Justice Burger in United States v. Will, 449 U.S. 200 (1980) Trumps the plaintiff’s objection.

Apparently, the Munchkins are not a litigious people and there is little or no case law regarding negligence claims in the history of Munchinland jurisprudence.  Citing an obscure choice of law clause in the purchase agreement for the Ruby Slippers, the defendant claims that the case should be decided under New York law.  This court agrees.

As previously stated, the plaintiff’s claim for wrongful death is predicated on a claim of  negligence.  Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same situation.  See: Gray v Gouz, Inc., 204 A.D.2d 390, 611 N.Y.S.2d 637 (1994); It is not a fixed concept, but is shaped by “time, place and circumstance” (Sadowski v Long Island R.R. Co., 292 N.Y. 448, 455, (1944).

In her defense, the defendant has asserted a defense based upon the common-law emergency doctrines which recognizes that, faced with an emergency, even a reasonable person might choose a course of action which, in hindsight, proves to have been mistaken or ill-advised.  It holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.  See: Caristo v Sanzone, 96 N.Y.2d 172, 174 (2001); Rivera v New York City Tr. Auth., 77 N.Y.2d 322, 327 (1991).

The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances.  See: Amaro v City of New York, 40 N.Y.2d 30, 36 (1976).

Although the existence of an emergency and the reasonableness of a party’s response to it will ordinarily present questions of fact.  See: Morgan v Ski Roundtop, 290 A.D.2d 618 (2002), they may in appropriate circumstances be determined as a matter of law.  See:  Huggins v Figueroa, 305 A.D.2d 460 (2003).  Here, invoking the emergency doctrine, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that her emergency landing of the house in which she was traveling was made only when the tornado, an act of God, forced her to make an emergency landing.  Apparently, the defendant’s house was not equipped with any brakes or steering mechanism.  Given these circumstances, it is apparent that the defendant had no other course of action but to land the house emergently in the place where the accident occurred.

Although negligence actions are not normally the subject of summary judgment motions, the factual circumstances of this case will lead this Court to the conclusion that summary judgment is appropriate.  Summary judgment is proper to eliminate unnecessary expense to litigants where no issue of material fact is present to justify a trial.  See: Axelrod v. Armitstead, 36 A.D.2d 593 (1st Dept. 1971); Donlon v. Pugliese, 27 A.D.2d 786 (3d Dept. 1967).  In Morowitz v Norton, 150 A.D.2D 536, 51 N.Y.S.2d 122 (2d Dept. 1989), the Court ruled that, “although negligence cases do not generally lend themselves to resolution by a motion for summary judgment, the Court will grant such a motion where, as here, the facts clearly point to the negligence of one party without any culpable conduct from the other.”  While summary judgment is granted infrequently in negligence actions, the remedy should be granted where there is no triable issue of fact. The Court of Appeals in Hartford Acc. & Ind. v. Wesolowski, 33 N.Y.2d 169 (1973), indicated that “the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury (CPLR § 3232(b)).

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiff’s cause of action for wrongful death and personal injury is dismissed. The plaintiff’s motion to dismiss the action based upon a claim of forum non conveniens is denied.  This is a non-final disposition of the case.  The plaintiff’s cause of action for conversion is not affected by this order.

Dated:  January 4, 1941

Hon. L. Frank Baum, U.S.D.C. Senior Judge

© 2016 Donald T. Kiley, Jr. –  dkiley@kileylawfirm.com All Rights Reserved

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You Deserve The Truth Today….

October 1st, 2015 Comments off

Recently, I received one of those “pass-it-on” emails about the 2015 Stella Awards presented for personal injury cases where plaintiffs are supposedly, the beneficiaries of outrageous verdicts and settlements.  See:  http://forum.cakewalk.com/2015-Stella-Awards-m3227858.aspx.  If you don’t wish to waste the time following the link, I’ll summarize.  The cases include a lady who was injured after placing her Winnebago on cruise control and leaving the wheel, and the woman who tripped over her son in a furniture store, and the teenager who was injured when his hand was run over as he tried to steal the car’s hubcaps.  All of these stories are apocryphal urban legends.  They never happened.  Someone(s) made them up. See:  http://www.snopes.com/autos/techno/cruise.asp.

The awards were so named in honor of Stella Liebeck, a plaintiff who was burned after buying McDonald’s coffee.  The “McDonald’s Case” as it is more commonly called, is one that all defense attorneys hope potential jurors have heard.  It’s a true case.  See Liebeck v. McDonald’s Restaurants, No. CV-93-02419, 1995 (N.M. Dist., Aug. 18, 1994).  Unfortunately, the story that is most widely circulated has the facts all wrong.  As it is told, Mrs. Liebeck bought a cup of McDonald’s coffee passing through the drive-thru.  She attempted to add sugar to the cup as it was on her lap and burned herself when it spilled.  In truth, McDonald’s knew that its coffee, which they intentionally served at 185 degrees, was likely to cause 3rd degree burns if spilled.  They had repeatedly been warned about the danger of serving its coffee at this temperature AND purposefully ignored these admonitions – because they make money selling really hot coffee to desperate caffeine addicts.  They also knew that customers buying coffee from a drive-thru had no alternative but to add sugar while sitting in their cars.  Mrs. Liebeck, who was 79 years-old, sustained full thickness third-degree burns over six (6%) percent of her body including her inner thighs and genitals.  After leaving the hospital, she asked McDonald’s to reimburse her for her medical bills,  about $11,000.00.   McDonald’s refused to be “extorted,” and offered to pay her $800.00 to go away.  Having no alternative, Mrs. Liebeck brought a lawsuit.  After lengthy discovery and a delayed trial, the jury awarded Ms. Liebeck $200,000 in compensatory damages for her injuries and medical bills, but reduced the award to $160,000 finding that she was also partially at fault for spilling the coffee in the first place. However, the jurors, infuriated by McDonald’s flagrant and callous disregard for the welfare of its customers decided that the company should pay $2.7 Mill. in punitive damages.

The purpose of a punitive damages award is to punish a defendant for purposeful cold-hearted actions and to deter future bad conduct.  Of course the justice system (which the Stella Award people love to malign) has appellate courts, which serve to sever emotion from justice.  The court drastically reduced the punitive damages award.  McDonald’s and Mrs. Liebeck finally settled out of court.  But only on McDonald’s insistence the final settlement was sealed so that it would never be disclosed.

Was Mrs. Liebeck a greedy money-grubbing plaintiff who hit the lottery.  I think not, as I’m sure this elderly woman would gladly have traded the money she was awarded in exchange for the severe pain and permanent damages she lived with for the rest of her life.

The Stella Award committee ignores the many, many cases involving plaintiffs who were terribly injured and appropriately aggrieved, but wrongly denied justice.  I’m sure that the wretched prevaricators (so much a nicer word than “liars”) who sit on the committee would happily resign their seats, hire a personal injury attorney and “sue the bastards” if they were seriously injured as a result of the negligent or purposeful acts of others.

Sir Winston Churchill once said that “democracy is the worst system in the world, except for all the others.” The same is true for our American civil justice system. But we have not yet devised  a better way to resolve these serious claims.

By the way, everybody hates lawyers until they need one.

If you find this blog informative, tell  your friends to have a nice day and pass THIS ONE on.”

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UMmmm . . . SUM Auto Insurance Policies are Better Than Others

April 24th, 2012 Comments off

One of the least understood and, therefore, overlooked options for automobile insurance is the one that provides uninsured and underinsured liability coverage.  It is listed on the policy declarations page under the heading “UM/SUM.”

Uninsured Motorist coverage “UM” is mandated by New York State.  It protects the driver and passengers of a vehicle who are injured by uninsured negligent drivers.  Each car insured in New York State must have, at minimum, the basic “$25K/$50K” coverage.  That is, a maximum of $25,000.00 per injured person and a maximum of $50,000.00 to be divided among all injured persons.

Confused?  Here’s how it works.  If a thrice-convicted drunk driver forgets to pay his auto insurance premium and kills a forty-year-old father of four by rear ending him into a concrete divider, the man’s wife can recover $25,000.00 from his own insurance company under his basic UM coverage.

However, if one of his children is also in the car suffers a head injury and is permanently brain damaged, he too can recover $25,000.00.

But if a second child is in the backseat and sustains bilateral comminuted “tib/fib” fractures, his wife and the two children will split $50,000.00.  And not a dime more.

“Wow,” you might wonder, “how can this family be financially protected from such an unfathomable tragedy?”  That’s where “Supplemental Underinsured Motorist” coverage helps.  If Dad has a $300K/$500K liability policy with DoRight Insurance Company, he can purchase SUM coverage up to the same amount as his liability coverage.  Then if the driver has no insurance or a policy with lower liability coverage, his own insurance company will indemnify him for the difference between the two policies.  So, if Dad was alone in the car, his wife could recover $275,000.00 from DoRight.  And if two or more people were in the vehicle, they will split $450,000.00 between them.

Purchasing UM/SUM coverage for the same limits as your liability insurance makes sense.  It’s the only way to protect yourself against uninsured and underinsured drivers.  And who wouldn’t want to protect himself and his loved ones as much as he protects a stranger?  Besides UM/SUM coverage is cheaper than a ten-dollar whore at a French seaport and UM/SUM claims are not “charged against” the owner’s policy.

So . . . why doesn’t every owner buy the maximum coverage?  There are several reasons:

(1)        IGNORANCE.  Many people just don’t understand how automobile insurance works.

(2)        STUPIDITY.  Some drivers ignore the advice of well-informed and well-intentioned insurance brokers (most are in this category) who recommend that they purchase the maximum UM/SUM.

(3)        AVARICE.  A few sleazy insurance brokers know that there is little profit to be made selling UM/SUM coverage and try to lure customers by selling policies with the cheapest premiums.

(4)        SLOTH.  A few other brokers are too lazy to bother scrutinizing the policy or explaining to the customer how SUM works and why it is so important.

Don’t fall victim to one of these sins.  Examine your insurance policy.  If you have the maximum UM/SUM coverage, pat yourself on the back, praise your insurance broker or thank your lucky stars. If you don’t have the coverage, wake up, get smart and find a good broker.

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“Eeeney, Meeney, Miney, Moe”

February 13th, 2012 Comments off

                If you are ever called for jury duty, the lawyers will say that they are looking for jurors who will be impartial.  They’re lying.  Any trial lawyer worth his salt wants jurors who will favor his client.  The jury system works when each lawyer is able to “strike” the jurors who would seem to favor the other litigant.  Each lawyer can “challenge” and eliminate any and all jurors who admit that they are predisposed to favor the other side.  But what about the jurors who say they will be fair but harbor sympathies for one side or another?  Luckily, each lawyer has a certain number (usually three) of “peremptory challenges” which may be exercised to remove a juror who the lawyer believes may harbor secret or latent sympathies for the other litigant – or worse, hate your client.  Sorting the jurors who favor your client from the ones who won’t is a tricky business. 

                Historically, attorneys select jurors based on intuition and formulaic profile.  Some lawyers hire jury consultants to render expert insight into human behavior.  But looking for jurors who will “like” your client is more of an art form than a science project.  Most people harbor prejudices of one type or another.  These are not always nefarious and many come from innocent practical experience.  Juror “number one” might like cab drivers because she’s married to one.  Juror “number two” – who’s actually ridden in a cab – might think that cab drivers are inherently reckless.  Oops . . .  there I’ve divulged one of my biases.  The problem with jury selection is that the average person doesn’t like to admit that he or she may be prejudiced, especially when challenged by a lawyer in front of the other members of the jury panel.  “Mrs. Smith,” the lawyer might ask “I know that your son was killed by a cab driver driving on the sidewalk in Manhattan, but won’t you will be fair to my client?”  In truth, it’s not that Mrs. Smith won’t be fair; she can’t be fair.  And that’s understandable.  As far as I know there was only one Mother Theresa and she’s dead and won’t be in the jury pool.  The only way that a juror may truly be fair is to recognize and admit his or her inclinations.

                The challenge for the trial lawyer is to discern a candidate’s personal history and predispositions in the space of a few minutes.  This is why attorneys profile potential jurors based upon career, education, geographic origin, race and ethnicity.  By profiling, the lawyer may seem to be showing his own prejudices.  In fact, he’s trying to intuit the jurors’ prejudices and has to rely on stereotypes to do so.  Homeowners and shopkeepers typically don’t like people who bring lawsuits when they trip and fall.  Elderly white people from Douglaston Manor typically fear black rappers from Jamaica.  Kindergarten teachers typically cry when they hear that a little child was hurt in a car accident.  Bankers typically don’t like anyone who sues for money damages (unless, of course they themselves are injured.)         

                It’s illegal to racially profile jurors, as the United States Supreme Court outlawed this practice in the case of Batson v. Kentucky,476 U.S. 79 (1986).  Mr. Batson was a black man who was convicted of burglary.  During voire dire (jury selection), the prosecutor peremptorily challenged all four black people on the jury panel.  Batson’s conviction was overturned on appeal because his jury was exclusively composed of white people.  The stated reasoning behind the Court’s decision was that a man is entitled to be tried by a jury which represents a cross section of his community.  Of course, the Court’s unstated conclusion was that a black man charged with burglary in Kentucky doesn’t have a puncher’s chance to be acquitted by twelve white people.  In reality, the Batson jurors may have been fair-minded, color-blind people and Mr. Batson may have been caught red-handed.  It’s just that the case didn’t pass the “smell test.”  Yet in making its decision the Supreme Court Justices expressed their own prejudices against white southerners.  Why did they do so?  Because guaranteeing a fair trial for Batson was more important than offending the sensibilities of the jurors whose liberty was not in issue.  Since Batson, courts have extended the prohibition against profiling to include gender-based jury challenges but the courts have expressed no opinion about other types of profiling.    

                In fact, racial and sexual profiling continues to be an acknowledged, if sub rosa, jury selection technique.  An injured plaintiff typically wants a jury composed of liberal-minded, soft-hearted, generous, empathetic people.  Defendants typically prefer conservative, unemotional, and financially prudent people.  The risk in stereotyping is that people are not always who they seem to be.  So it’s important to get a feel for the person behind his or her job, race, color, address or educational background.  Therein lies the rub and it’s most important to ask questions of the juror which will provide insight as to their character, thought processes and personal experiences. 

Next: Picking a Jury in Queens County

“Eeeney, Meeney, Miney, Moe”

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Port Authority has governmental immunity for the 1993 World Trade Center bombing

September 22nd, 2011 Comments off

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.

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The Sky is Falling!

September 18th, 2011 Comments off

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

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“Not-So-Independent” Medical Examinations

September 14th, 2011 Comments off

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.”

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Fore……. Liability on the Golf Course

September 13th, 2011 Comments off

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.

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Judging the Judges

June 16th, 2011 Comments off

It’s one of the lessons they don’t teach in law school or in any of the scholarly tomes on legal jurisprudence. Until you learn it, you are doomed to fail: there are three parties to every lawsuit: the plaintiff, the defendant and the judge. And the man* in the black dress trumps the other two every time.

Underneath the dress, judges are real people. Like all, they have strengths and weaknesses. But there are two prototypes – the “good judge” and the “bad judge.”

The good judge avoids the spotlight and is invisible until trouble brews. He has control at all times, but lets the lawyers try their own cases. He understands that real lawyers have more than one case. He knows that lawyers are real people with families and personal lives. He “moves” his caseload promptly. He also knows when a lawyer truly needs an adjournment and gives it to him. He can’t be walked over. He commands respect without having to demand it. He knows (or learns) the applicable law and all the proper rules of evidence and civil procedure. He makes prompt procedural decisions, but not until he first permits the lawyers to make their legal arguments. He doesn’t take offense easily or arbitrarily threaten to hold attorneys in contempt. He understands that expert witnesses have professional practices and tries to accommodate their busy schedules, knowing that the litigants will suffer if he precludes the expert’s testimony because he is not available at the judge’s “beck and call.” He is willing to work when the trial starts and not procrastinate. He doesn’t try to scare the parties or harass the lawyers. He makes the jurors comfortable. He is an honor to the sacred oath he takes to uphold the “public trust” and faithfully and impartially discharge and perform all the duties incumbent upon them. In short, he channels the wisdom of King Solomon, who implored God to give him “an understanding heart to judge thy people and to know good and evil.”

The bad judge can hurt or kill your case.  He behaves like a tyrant. He interposes himself unnecessarily and tries the case for the lawyer, frequently losing it. He makes facial gestures to the jury, improperly and surrepticiously opining about the evidence in ways that won’t show on the record and, therefore, cannot be appealed. He doesn’t care whether justice is served, as long as he “moves” the case. He will pressure whichever side seems most pliable, regardless of the equities. He will “ice” the jurors by making them  wait  unnecessarily until they become so jaundiced by “the process” that the lawyers feel compelled to settle. He will unnecessarily berate an attorney, often threatening to hold him in contempt.  He relishes the chance to harangue inexperienced lawyers. He doesn’t know the law and doesn’t care to learn it. He forces the lawyers to produce expert witnesses at times when the witnesses have genuine scheduling conflicts, thereby creating unwarranted and untenable animosities between the witness and the lawyer. He makes attorneys sit and wait for days to pick a jury thereby creating office management problems. In short, he promotes the sale of Pepcid, Pepto Bismol, Xanax and Prozac.

Perry Mason, Boston Legal, L.A. Law, Law & Order miss the real action which frequently happens on the bench.  Judges rule their courtrooms like feudal lords. The great ones are like Solomon: wise and courteous. The bad ones are stupid, lazy and/or nasty. Once a client gave me a sweatshirt imprinted with the words, “A good lawyer knows the law. A great lawyer knows the judge.” The lawyer who can’t tell the difference between the good and bad judges, is doomed.

* Author’s Comment: the blogger takes literary license to use masculine pronouns so that the prose flows and does not cause the reader to doze.

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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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