Tuesday, December 22, 2009

Personal Injury Attorney - Construction Accident Liability Clarified By Court of Appeals In Runner v. New York Stock Exchange

The Court of Appeals recently issued key a Labor Law 240(1) decision clarifying the meaning of the statute.  In Runner v. New York Stock Exchange, the plaintiff injured his hands when he was asked to lower a large reel down a staircase using a make-shift hoist.  Rather than loading the reel onto an actual hoist or pulley, a rope was tied around it, which was strung over a wooden rail, and the plaintiff was asked to hold one end of the rope to act as a counterweight.  The matter went to trial in a Federal District Court, went to Second Circuit, and the Second Circuit certified the legal issue to the New York State Court of Appeals.

Defendants argued that, for Labor Law 240(1) to be applicable, "gravity must operate directly upon either the plaintiff or upon an object falling." The Court of Appeals responded, however, that ""the single decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential."   Labor Law 240(1) was applicable because "a pulley or hoist should have been used."

The defense bar constantly tries to limit the scope of this stutute.  It is a broad statute, covering gravity-related risks, and requires owners and contractors to provide safety devices to guard against that risk  The Court of Appeals did not express any new law, or new interpretion, but, rather merely once again rejected an attempt to create a bright-line rule where none was necessary.  Although the "de minimus height differential" argument is sometimes used as a manner of expressing that a particular circumstance did not present a gravity-related risk, at no point have New York's Courts expressed any sort of minimum height differential.  In fact, "falling object" cases have been upheld where the fall was, essentially, horizontal.

Over at the New York Civil Law Blog,  Matt Lerner points out that the Court focused on the nature of the object being hoisted or secured. The nature of the object is not a new consideration -- notably, in cases such as Outar v. City of New York, the Court has previously commented on objects being the type of object that requires securing -- but it is an under-appreciated factor that the Court makes plain is very relevant to the Labor Law 240(1) inquiry.

Eric Turkewitz at the New York Personal Injury Law Blog notes that this decision is part of a trend away from defense oriented decisions. A lot of it has to do with which cases the Court of Appeals chooses to hear, but there has been a trend.  Looking at the leading Court of Appeals decisions over the last five years, six of eight -- RunnerQuattrocchi(2008), Sanatass (2008), Broggy (2005), Outar (2005), and Stejskal (2004) -- have been Plaintiff friendly; in the five years prior to that, however, only two of five were found in the plaintiff's favor.    

Sunday, December 20, 2009

Personal Injury - The December 2009 Blizzard

One of the things that makes being a lawyer interesting is that you need to learn a wide variety of things.  If applicable to your case, you need to learn medicine, engineering, and -- meteorology.

We just had our first blizzard of this Winter, so this is my snow-related post.  Cases involving slip and falls on snow and ice require developing a theory as to why a third-party is responsible for the  person who slipped's injuries.  You could end up, a summer or two from now, trying to explain to a mid-July jury that snow starting late-afternoon on Saturday December 19th, fell lightly for a while, then took a break after about an inch, picked up again as it got dark, and by Sunday afternoon there was 26" on the ground in Suffolk out on Long Island, and 11" in the City.

The theory could be that a driver didn't take extra care on an icy road; or that someone failed to shovel or plow a public sidewalk; or shoveled but didn't salt, leaving ice behind; or - if temperatures rise above freezing, as they are supposed to - didn't salt after a partial thaw to prevent black ice from forming from the re-freeze.

So, there's the legal angle, but talking about injuries is depressing.

Snow is fantastic.  It looks cool, it's fun to play with. For a little while, you can pretend you are out on a glacier (glassy-er) with Bear Gryllis; on Hoth or some othe Sci Fi Ice Moon; or foraging with primitive man during the ice age.  You can do something romantic with your wife, make a fire and smores, go sleigh riding, have hot-cocoa, or take your dog out to play.  The blizzard coincided with the US airing of the newest Doctor Who special, "Waters of Mars." And, there's going to be snow on the ground for Christmas!

For a brief video describing my services as a Suffolk County Slip and Fall or Car Accident Attorney, click this link.


* How to Protect Your Legal Rights If You Slip and Fall On Snow and Ice
* Slip and Falls on Snow and Ice
* Should I Hire An Attorney?


* Long Island Legal News, "Slip/Trip and Fall Appellate Division Decisions." 
* Huffington Post, "2009 Blizzard As Seen From Space." 
* Slaw, "The Law of Winter."
* NY Times, "Commuters Still Feeling Effects of Snow."  


Saturday, December 19, 2009

Personal Injury - The Workers Compensation Lien, In A Deficiency Scenario, Unfairly Usurps Personal Injury Recoveries

Worker's compensation is a great idea.  In it's modern form, it is a mandated insurance program whereby people who are injured at work, regardless of fault, can have their medical bills paid and recover for lost wages. In exchange for this protection, workers cannot sue their employers.  In the U.S., these laws originated in the early twentieth century, and by 1948 every state had a worker's compensation scheme.

In cases where there is a third-party at fault for the worker's injury, and the injured worker brings a personal injury suit, New York law gives the worker's compensation insurance carrier a right to recover from the personal injury proceeds the amount it paid or is obligated to pay.  When this happens, the worker's compensation lien is reduced by a proportionate share of the litigation cost (i.e., attorneys fees and expenses).  This issue regularly arises in construction accident cases, and frequently occurs in other types of cases as well.

In some cases, where the worker receives full compensation, and is not permanently disabled from work, the lien is fair and prevents double-recovery for lost wages and medical expenses. The same fairness, however, would be accomplished by allowing a collateral source set-off for worker's compensation payments.

The more problematic case arises where issues of comparative fault, questionable liability, or limited insurance prevent full recovery, or where the injured person has a permanent disability and will be receiving permanent worker's compensation benefits.  In those cases, the worker's compensation lien can create a terrible inequity.  When the worker recovers less than the lien amount (after reduction for the full litigation cost), the compensation carrier has a right to take the worker's entire share of the recovery.  Where the worker's compensation carrier is paying continuing benefits, the compensation carrier has a right to its full lien (minus a proportionate share of litigation costs), and can also take a credit against future benefits (i.e. go on a "holiday") in the amount of the worker's recovery from the at-fault party. (See Burns v. Varialle; Sheer v. State Ins. Fund). Essentially, it is possible for the worker to go through an entire lawsuit, perhaps appearing for depositions or even trial, and then receive nothing other than a lump-sum advance on worker's compensation benefits they would have received anyway.

Medical insurers used to be able to do something similar, asserting a subrogation lien against personal injury recoveries for benefits they had paid, but New York recently passed a law rendering such liens void. (Coverage Counsel; NYPILBCent. NY Injury Blog). 

The reasoning behind this new law, that the insurer received premiums in exchange for its payout obligation and it is unfair for the insurance company to benefit at the expense of the injured party, is equally applicable to worker's compensation insurers.  Indeed, in a medical insurance context, the collateral source rule (desribed above) applies to prevent double recovery.  The new law, however, does not apply to worker's compensation insurers (whose lien is protected by a seperate statute).

Accordingly, I submit that the State Legislature should consider an amendment to the Worker's Comp Law similar to the recent law affecting medical insurers.  The collateral source set-off approach still avoids double recovery, but is preferable for plaintiffs because it accomodates pain and suffering compensation in a disputed case notwithstanding a large reimbursed for economic losses.

Tuesday, December 1, 2009

Harlan Ellison Star Trek Lawsuit

Many Sci Fi blogs have reported that acclaimed Sci Fi author Harlan Ellison recently stated that he would like to write the sequel to J.J. Abrams' Star Trek reboot.  (See ScreenRant).  The comment may have been half-sincere, half tongue-in-cheek, but who knows.

Ellison has an interesting history with Star Trek.  In March, 2009, Ellison sued Paramount for failing to pay him royalties for an episode of the original series that he wrote.  The case settled on November 17, 2009.  Now, less than two weeks later, he is saying that he'd like to write the next movie (apparently indicating that Roddenberry had approached him a long time ago with the idea of writing a movie, and he already has some ideas).

(Read More at Sci Fi Scholar).