| Follow Us: |  |  |  |
|  |
Blog Topics
- Accident Statistics
- Brain Injury Litigation
- Bus Accidents in New York
- Car Accidents in New York
- Cruise Ship Accidents in Newyork
- Dangerous Medications
- Dangerous Premises Accidents in New York
- Dangerous Products
- Differences in NY and NJ Laws
- Gersowitz Libo and Korek Events
- Gross Negligence Cases
- Medical Malpractice
- New Laws/Statutes
- New York Truck Accidents
- News
- Successful Injury Case Strategies
- Topics
- Uncategorized
- Wrongful Death
Tragic Bus Accident Kills 14 in New York
A tragic New York bus accident on I-95 took the lives of 14 passengers and injured 19 others.
A private bus company was hired to bring 31 people back from the Mohegan Sun. The bus left the casino
very early on Saturday morning. At approximately 5:30 AM, the bus crashed on I-95 in Westchester County, crashing
through a highway sign that cut through the entire length of the bus.
The bus driver suffered minor injuries and survived the crash. Initial reports show that the bus driver claimed a
tractor trailor cut him off and clipped the bus. According to an NBC News Report, some passengers have claimed otherwise.
The passengers claim that the bus driver was speeding excessively and possibly even falling asleep at the wheel; the bus was reported to have hit the rumble strips several times before the crash occurred.
The investigation as to the cause of the crash is still ongoing.
At Gersowitz Libo & Korek, P.C., we are dedicated to representing victims of New York bus accidents. If you or a loved one has been injured in a New York bus accident, contact us immediately at 800-LAW-9997 for a free consultation.
4 ½ Year Old Has the Mental Capacity to be Held Negligent
Two 4 ½ year olds were racing their bicycles down a New York City sidewalk one afternoon when they accidentally crashed into an 87 year old woman and knocked her over. The woman required surgery after suffering a broken hip from the fall, and tragically passed away three months later. The family of the elderly woman is suing- not just the mothers of both children, who were present when the crash occurred- but also the children themselves.
In Menagh v. Breitman, the lawyer for one of the children argued that his 4 ½ year old client could not be held liable for negligence, and tried to get the case for that child dismissed.
James P. Tyrie first argued that his client should be treated as non sui juris (incapable of negligence) because of her age. There is a bright-line rule in New York that children under the age of 4 are incapable of being held liable for negligence. However, there is no established law regarding negligence for children over the age of 4, and Tyries client was 4 ½.
Justice Paul Wooten felt that there was not enough evidence presented to increase the age of the bright-line law, and that cases of negligence brought against children over the age of 4 should be decided by a jury.Using language from the 1928 case of Camardo v. New York State, as quoted in Gonzalez v. Medinaœin considering the conduct of an infant in relation to other persons or their property, the infant should be held to a standard of care . . . by what is expected of a reasonably prudent child of that age, experience, intelligence and degree of development and capacity.
Tyrie also argued that his client couldn’t be held responsible because a parent was present to supervise the child. Justice Wooten concluded that the presence of a parent does not automatically eliminate a child’s negligence.Wooten stated “Because a child above the age of four will only be non sui juris if it is impossible under the circumstances to draw any other inference, parental supervision is unlikely to affect the sui juris status of a child above the age of four unless the parent has taken an active role in encouraging the child’s conduct.The fact that the mother was supervising her daughter racing her bike down the sidewalk does not mean that the mother actively encouraged the child to strike the elderly woman with her bike.
Justice Wooten brought up an example of a child running across the street. A prudent 4 ½ year old child most likely knows the dangers of crossing the street without looking both ways.If an adult is present and that child decides to cross the busy road on his own without looking, there is a possibility that the child was negligent in doing so. The only way that child would automatically be non sui juris is if the adult told the child it was safe to cross the road, or encouraged the child to cross the road. The child could reasonably infer that it was safe to cross the road because a trusted adult told him/her to.
Justice Wooten’s ruling does not mean that the child is guilty of negligence for striking the 87 year old woman with her bike, but that it will be up to a jury to determine if she is negligent.
For additional articles on this case, check out The New York Times article entitled 4-Year-Old Can Be Sued, Judge Rules in Bike Case.
BP Waives Liability Cap for Some Damages Claims
In August, Gersowitz Libo & Korek reported about The Oil Pollution Act of 1990, which could cap BP’s liability at $75 million. This statute limits each oil spill incident from an offshore facility to $75 million in addition to the cost of cleanup. Exceptions to this Act will only be made for instances of gross negligence, willful misconduct, or violations of applicable federal safety, construction or operating regulations.
According to the Associated Press, BP confirmed earlier this week that they will waive the cap, but only for certain claims. One of the lead plaintiffs attorneys, Ervin Gonzalez, said he was satisfied that the filing by BP will definitely waive the cap, claiming. They can’t get around that language.
BP stresses that waiving the cap is in no way admitting to gross negligence stemming from the Deepwater Horizon oil rig explosion and massive spill into the Gulf in April of this year. Gonzalez believes that BP has included this wording in an effort to avoid future punitive damages suits.
Trials stemming from the lawsuits filed against BP for the Deepwater Horizon disaster may begin as soon as June 2011.
The Most Injured Victims Are Victimized By Maryland Law
Caps on Wrongful Death and Medical Malpractice Severely Limit Recoveries for Pain and Suffering (Non-Economic Damages)
In 2006, five year old Connor Freed tragically drowned in a country club swimming pool. Connor’s parents, the Freed family, successfully sued the pool company and were awarded by a jury over $4 million in damages for their grief and mental anguish.
Even though the jury found the pool company liable for $4 million, due to Maryland’s cap on all non-economic damages, the award was reduced to just over $1 million. In 2006, the cap on a victim’s wrongful death with two or more survivors was $1.02 million.
The Maryland Cap on Non-Economic Damages was put in place in 1986. In 1994, the cap was raised from $350,000 to $500,000, with an increase of $15,000 each year on October 1. The cap was put in place on the theory that liability insurance would be more affordable and accessible to individuals and organizations that need it.
The Freed family challenged the constitutionality of this cap with Maryland’s Highest Court, the Court of Appeals (DRD Pool Service v. Freed). They argued that this cap violated the right to redress (Article 19), the right to a jury trial (Articles 5 and 23) of the Maryland Declaration of Rights, and the guarantee of equal protection under the 14th Amendment to the U.S. Constitution.
The Appeals Court claimed that stare decisis (to stand by the thing decided) was the basis for their determination as to whether they would overturn this precedent, since they had already upheld the constitutionality of it on two other occasions (Oaks v. Connors and Murphy v. Edmunds). The Court stated that it is only appropriate to overturn a precedent when the decision is clearly wrong and contrary to established principles or when significant changes in other laws or facts invalidate the precedent.
The Court found that this cap did not violate either circumstance, and stare decisis would not be abandoned. The Court further held that this cap did not interfere with the right to a trial by jury, as a jury of one’s peers still evaluates the facts presented and evaluates the negligence of the parties. The Court concluded that the cap did not prevent a plaintiff from full redress; it simply modifies the law of damages to be applied in tort cases.
The Court also ruled that the 14th Amendment to the U.S. Constitution- the guarantee of equal protection- was not violated. The Freeds argued that those who are less seriously injury are entitled to keep everything awarded by a jury for non-economic damages, while those who are more seriously injured and deserving of more are limited by the cap; thus creating a clear classification and violation. While the Court agreed that this cap would technically favor one party over another, it did not create a classification that would justify heightened scrutiny or review.
Insurance companies and big business argue that other States should implement caps. They contend that caps are necessary to curtail jury awards that they believe are too high to appropriately compensate the injured party. This argument, however, is invalid.
In most States, higher courts act as a safeguard to evaluate whether a jury’s award for non-economic damages is excessive or fair and reasonable. If a defendant believes that a damage award is too high, the defendant has a right to appeal the decision to the Appellate Court. In most instances, the Appellate Court will issue a well reasoned decision outlining the factors involved in maintaining, reducing or increasing a jury’s award.
Simply put, a cap on non-economic damages hinders one’s rights and circumvents the role of a jury. Fortunately, the Citizens of New York and New Jersey have curtailed any effort to put in place caps on recoverable damages for victims of medical malpractice, personal injury or wrongful death.
You can view a full transcript of the DRD Pool Service v. Freed by clicking on the name.
For a summary of New York malpractice law, check out the link.
How Safe are Off-Label Prescriptions?
Drug Used to Treat Post-Traumatic Stress Disorder for Soldiers May Be Deadly
Seroquel, an anti-psychotic drug approved by the Food and Drug Administration (FDA) to treat schizophrenia, bi-polar disorders, and depression, has been on the market for years. Over the past few years, AstraZeneca, the manufacturer for Seroquel, began marketing this drug to help treat post-traumatic stress disorder (PTSD), insomnia and other conditions not approved by the FDA.
Studies were recently conducted on the side effects of Seoquel. Vanderbuilt University published a study noting that sudden heart failure may be a new side effect. The FDA and AstraZeneca are both reviewing this study to determine its accuracy.
In October of 2009, AstraZeneca paid out $520 million dollars as part of settlement agreements for two federal investigations over clinical trials and off-label promotion, and two whistle-blower lawsuits over aggressive sales and marketing. Details of the federal investigations and whistle-blower lawsuits were not made public. This $520 million barely made a dent in this multi-billion dollar drug, with sales since 2004 totaling over $17 billion.
One of Seroquel’s most recent uses has been for treatment of post-traumatic stress disorder in American soldiers, claiming the drug helps alleviate symptoms of insomnia and restlessness. Thousands of soldiers have been treated for this disorder with Seroquel over the last nine years.
The Associated Press reported on one soldier, Andrew White, who was prescribed the drug after a nine month tour in Iraq after showing signs for PTSD. As his nightmares continued, his dosages of Seroquel were increased over time, and he was taking more than double the maximum dose prescribed to those using it for schizophrenia.
Not long after started this increased dosage, White died in his sleep. There have been atleast a half-dozen deaths among soldiers taking this drug to treat PTSD, but that number is likely grossly understated.
This story raises a much bigger issue. Psychiatrists are allowed to prescribe this drug off-label, which means they can prescribe this drug for unapproved indication. Off-label prescriptions tend to be common place in today’s pharmaceutical-driven society, especially since the FDA procedures to approve a drug are costly and time-consuming.
There is generally substantial literature to support off-label usage, which is what doctors will use to determine whether to prescribe these drugs. Doctors have the ability to issue any drug for an unapproved reason, as long as they use their professional judgment to deem it safe and effective for the condition they are prescribing it for.
Isn’t it time that the FDA crack down on the off-label use of drugs as the risks seem to outweigh any potential benefit?
For more information on the Seroquel case, read the Associated Press article: http://www.google.com/hostednews/ap/article/ALeqM5iPPHBQ6w28w4kTXzANGm6kCzPN1gD9HTRUQ80
For more information on Off-Label Prescriptions, read this article by the American College of Physicians: http://www.annals.org/content/145/4/305.full?etoc
If you or anyone you know has been adversely affected by using Seroquel, contact Gersowitz Libo & Korek, P.C. at 800-LAW-9997
The Deepwater Horizon explosion and oil spill has resulted in several people reconsidering statutory caps on liability. Along with extensive environmental damage to the Gulf of Mexico region and potential health issues for the people in the area, the Deepwater Horizon spill is expected to result in billions of dollars in economic damages. A federal statute however would limit BP’s liability for the spill. According to the Oil Pollution Act of 1990 (OPA), the liability for each oil spill incident from an offshore facility is the removal costs plus $75 million. The statute only provides an exception to the limit for cases of gross negligence, willful conduct, or violations of applicable federal safety, construction or operating regulations.
The magnitude of the Deepwater Horizon spill has prompted several environmental, consumer, campus and public interest groups to send a letter to the U.S. Senate requesting passage of the Big Oil Bailout Prevention Liability Act of 2010. The proposed legislation would raise the cap on liability for offshore spills retroactively from $75 million to $10 billion. In conjunction to this legislation, the groups have also called for the passage of the Big Oil Bailout Prevention Trust Fund Act of 2010, which would eliminate the $1 billion per incident cap on claims against the Oil Spill Liability Trust Fund.
The groups provided several reasons for the proposed legislation. First, it would allow those with economic losses to be compensated in a timely manner. Second, raising the limit on liability would reduce the need to tap into the Oil Spill Liability Trust Fund. This would force responsible parties to internalize more of the costs from an oil spill instead of shifting the burden to taxpayers. And third, the proposed legislation would compel oil companies to prioritize the environment and worker safety. The groups feel that raising the cap would provide the financial incentive for oil companies to change their behavior and hopefully deter future oil spills.
The OPA is just one of several liability capping statutes in place in the United States. Over half of the states have enacted statutes that place limits on non-economic damages. Several states have also promulgated statutes that limit punitive damages, or in some cases, ban them. The Deepwater Horizon spill has not only highlighted problems with the OPA, but with statutory caps in general. Caps prevent tort victims from getting fully compensated for their losses, just like oil spill victims under the OPA. And just as oil companies lack the incentive to modify their actions in order to prevent future oil spills, limits on damages also fail to provide tortfeasors the necessary financial incentives to change their behavior in order to prevent future torts. While it is yet to be seen how Congress will deal with the OPA, the Deepwater Horizon oil spill has certainly added extra perspective to the debate over capped liability and tort reform.
The Power of Fine Print- NJ Supreme Court Rules in Favor of Gym over Injured Member
New York Law Protects Consumers from Outcomes like This
Are you one of the many New Jersey residents who have joined a gym over the past few years in an effort to get healthier? Did you sign a contract that you assumed only bound you to certain monthly payments and expectations of keeping the equipment you use clean and being courteous to your fellow gym warriors?
Perhaps you should reread that contract you signed. Recently, the New Jersey Supreme Court upheld a ruling that a NJ gym wasn’t responsible for faulty equipment that injured a member of the gym in the case of Stelluti v. Casapenn Enterprises.
The gym member, Gina Stelluti, went to stand up on her stationary bike during a spin class when the adjustable handlebars dislodged and caused her to fall forward. Since her feet were strapped into the pedals, she ended up cracking her tooth and hurting her neck and back, causing chronic pain.
Stelluti sued the gym for her injuries, alleging that the club had failed to maintain the bicycle properly, provide adequate warnings and instruction on the safe use of the bicycle, or adequately train and supervise its employees.
The gym she belonged to- Powerhouse Gym- claimed that they weren’t responsible since she signed a non-negotiable exculpatory agreement. The fine print of the waiver form included wording that the gym will not be held liable for the use of all amenities and equipment, the sudden and unforeseen malfunctioning of any equipment, and the gyms instruction, training [or] supervision.
Subsequently, the Court granted summary judgment in favor of Powerhouse Gym. According to the official Supreme Court transcripts, the presiding judge called the signed waiver agreement unambiguous and enforceable, regardless of whether defendant conduct is characterized as negligence or as gross negligence.
The Supreme Court upheld this ruling on a 5-2 vote. The court stated this in their ruling: The agreement did not, and could not, shield the club from more extreme conduct such as reckless, willful or wanton, or palpably unreasonable acts or omissions diminishing the safe condition of its equipment. However, the Supreme Court held that there was no genuine issue of material fact that such extreme acts or omissions caused the plaintiff accident.
In contrast to the New Jersey Supreme Court holding in Stelluti, New York has enacted legislation to protect consumers from the type of clauses illustrated above. New York General Obligations Law 5-326 specifically holds that exculpatory language cannot be used to shield gymnasiums and other places of public amusement and recreation from liability for their own negligence where payment or a fee is received. The law is very clear that such agreements and provisions are unenforceable and void as against public policy. This law was enacted to protect consumers from the sort of fine print language at issue in Stelluti.
While it is clear that the exculpatory agreement that plaintiff signed in Stelluti, stated that the gym could not be held liable for faulty equipment, it is clearly unjust to allow physical fitness establishments to shield themselves from liability when they don’t maintain their equipment or they improperly supervise their staff. Furthermore, the holding in Stelluti does not clarify what constitutes the sort of extreme, reckless conduct or omissions which would subject a gym to potential liability. In order to ensure that physical fitness and other public recreational establishments keep their facilities safe, it is crucial that New Jersey pass legislation which will hold gyms and health clubs liable for their own misconduct.
You can view a full transcript of the case at: http://scholar.google.com/scholar_case?case=14525274868413889681&hl=en&as_sdt=2&as_vis=1&oi=scholarr
TORT REFORM
Threatening the Rights of Medical Malpractice Victims
In recent years, proponents of tort reform have lobbied to enact laws which limit the rights of individuals to seek redress in our courts. Such legislation has often been geared towards the area of medical malpractice litigation. Tort reform advocates claim that frivolous lawsuits and out of control jury verdicts are overwhelming our courts. Proponents further argue that medical malpractice suits are responsible for driving up doctor’s insurance rates and driving doctors out of business. In response to these claims, states across the country have enacted laws which limit the rights of individuals in their personal injury lawsuits. Tort reform measures include placing caps on the amount of non-economic damages an individual can recover and enacting procedural barriers for plaintiffs attempting to commence a lawsuit.
While tort reform advocates argue that these limitations something enough times doesn’t make it true. In fact, in a 2006 study published in the New England Journal of Medicine, researchers from the Harvard School of Public Health concluded that [P]ortraits of a malpractice system that is stricken with frivolous litigation are overblown. Additionally, a study by the Congressional Budget less than 2% of healthcare spending. At Gersowitz Libo & Korek, P.C., we believe that limiting individuals rights through tort reform is not the answer. Personal Injury lawsuits compensate individuals for real losses, including medical expenses and lost wages as well as for pain and suffering. In a country with rapidly rising health care costs, being compensated through a personal injury lawsuit should not be equated with winning the lottery. Legislation should not be health care providers at the expense of patients and consumers. Anyone can be a victim of medical malpractice or someone else’s negligence. If you think you or a loved one has been the victim of medical malpractice please contact Gersowitz Libo & Korek, P.C. at (212)385-4410 or visit us online at www.lawyertime.com.
TERROR ON LONG ISLAND
Family Mourning Loss Hires GLK for Justice
On the day after Thanksgiving 2008, tragedy struck a Walmart department store in Valley Stream, New York. A horde of shoppers trampled Walmart employee Jdimytai Damour in their eagerness to get to the store’s Black Friday sales.
Jdimytai, 34, was hired as a temporary maintenance worker at the Walmart in Green Acres Mall during the holiday season. In the early morning of November 28, Jdimytai was pulled away from his duties in order to control the crowd that had gathered in anticipation of the store’s post-Thanksgiving bargains. Managers chose Jdimytai to guard the doors because of his imposing frame, even though he had never received any security training.
When Jdimytai opened the doors at 5am, the crowd of eager shoppers began to force their way in, pushing past Jdimytai and into the store. Alone facing the mob, Jdimytai fell to the ground and was trampled to death while trying to protect a woman who was 8-months pregnant from the crush of the crowd. Four other shoppers suffered injuries during the mob scene, including the 28-year-old pregnant woman, who was hospitalized with minor injuries, and might have died had it not been for Jdimytai’s determination to keep her safe.
Marie Telismond, Jdimytai’s mother, reached out to Gersowitz Libo & Korek, P.C. to help her family navigate the legal waters in the aftermath of her son’s death. The Walmart store in which this tragedy occurred had no policies in place concerning crowd control, even during large sales events such as the one on Black Friday.
The store’s inadequate security measures and safety protocols, coupled with their lack of regard for Jdimytai’s inexperience in dealing with crowds, led to the untimely death of the young man. This tragic story was immediately picked up by news media around the country.
Ms. Telismond and the rest of Jdimytai’s family were hounded for interviews by major broadcast companies who were interested in a headline that involved the nation’s largest retailer.
In response to the tragedy, New York City Council Member Jim Gennaro and Nassau County Legislator Joseph Scannell introduced legislation to prevent stores from putting workers in the position Jdimytai found himself the only barrier between an angry mob and the gadgets they desired. These bills impose safety precautions on stores that hold door buster sales like the one that ended in tragedy at the Valley Stream Walmart.
Hopefully, with Gersowitz Libo & Korek, P.C. on the case and legislation at the city and county level, the story of Jdimytai’s wrongful death will change the negligent culture of companies who have these kinds of sales and prevent a similar tragedy from happening again.