RECOVERING FOR INJURIES WHEN A COUNTY, CITY, TOWN OR THE STATE OF NEW YORK IS LIABLE

Imagine that you suffer injuries from a fall on a sidewalk owned by a town or the state. Imagine that you are struck by a city bus. Imagine that you are injured by the negligence of an employee of the State of New York.  Even though a governmental entity is liable rather than to an individual or a corporation, you can still seek compensation for your injuries. The process, however, is slightly different than for a law suit against an individual or a corporation.

There are certain rules and a timeline that must be followed in order to ensure that you do you not lose your claim for recovery. The statute of limitations for personal injury law suits against most New York State governmental entities is 1 year and 90 days from the date of the accident; however, a Notice of Claim must usually be filed within 90 days of the accident. This deadline is much shorter than that of negligence actions against individuals or corporations, which is 3 years.

The Doctrine of Sovereign Immunity protects the government from law suits unless they consent to being sued. New York State and its municipalities have waived this immunity in many situations if notice of the accident is given within the statutory time limit. The following are some distinctions between claims against municipalities verses those against the State of New York:


Municipality or County

 

  • Serve a Notice of Claim on the municipality or county within 90 days of the accident
  • Only after a hearing is conducted may a lawsuit be commenced
  • Case is filed in Supreme Court
  • Case is tried in front of a jury



State of New York

 

  • File and serve a Claim on the Attorney General within 90 days of the accident
  • Case is filed in the Court of Claims
  • Case is tried in front of a judge

Because of the time constraints in which to commence a law suit, and the specific procedures required to file a law suit depending on whether the liable party is a municipality, county, the State of New York or certain other governmental or quasi-governmental entities, it is important that you seek the advice of a skilled litigation attorney.

Cynthia Fichera, partner of Spiegel, Brown and Fichera, LLP, has obtained substantial recoveries against governmental entities including: $1.7 million for wrongful death in a case where a stop sign was partially blocked by a tree, $1.2 million for a foot and knee injury where a prison van pulled out in front of her client’s car, $80,000 for a knee and ankle injury sustained from a slip and fall on ice on property owned by New York State and $70,000 for a shoulder injury when a woman was struck by a Dutchess County bus. If you have been injured and a governmental entity is liable, do not hesitate to contact the attorneys at Spiegel, Brown and Fichera, LLP to ensure that you do not lose out on compensation for your injuries.

A HIDDEN DANGER: ELECTROCUTION FROM SWIMMING POOLS

Water and electricity don’t mix. In October of 2004, on the eve of the playoffs between the New York Yankees and Red Sox, two relatives of Mariano Rivera, pitcher for the Yankees, were electrocuted in Rivera’s mansion in Panama after the pool had been wired to prevent dogs from entering the pool.

In the United States, between 1990 and 2003 there were 60 deaths that were attributed to pool electrocution. Since 2003, there have been cases of electrocutions in pools reported in the news throughout the United States. In 2014, a 7-year-old boy in Miami, Florida died following being electrocuted in his family swimming pool as a result of an improperly grounded light. In 2016, a 17-year-old girl in North Carolina was electrocuted and drowned as a result of a faulty ground wire in a swimming pool system. In May of 2016 a 34-year-old man was shocked in a motel swimming pool in New Jersey. One day later, an 8-year-old girl was electrocuted in her backyard swimming pool in Pennsylvania.

According to New York Public Health Law §225, lighting or other electrical circuits provided in the pool area must be protected by ground-fault circuit interrupters in accordance with the Uniform Fire and Prevention Building Code and National Electric Code. The Public Health Law further provides that any defects in the electrical system including underwater and overhead lights must be repaired immediately. Chapter 41 of the Residential Code of New York State enumerates the requirements for electrical wiring for swimming pools, wading pools and hot tubs.

The symptoms of electric shock include:

  • Burns
  • Cardiac and/or respiratory arrest
  • Neurological problems
  • Ruptured eardrums
  • Fractures
  • Chronic pain

Although rare, electrocution from swimming pools, both public and private property, can lead to death or life long disabilities. Violations of the National Electric Code and New York statutory authority can impose liability on manufacturers and installation companies for failure to install proper electrical wiring. Liability may also be imposed on landowners for failure to repair any defects in the electrical system. If you have sustained injuries from the presence of electricity in a pool or have questions on how to pursue a claim for injuries sustained from electrocution in a pool, don’t hesitate to contact the attorneys at Spiegel, Brown and Fichera, LLP.

Can You Receive Compensation If Your Child Is Injured at School?

When you send your children to school in the morning you expect them to be safe and protected and return home at the end of the day unharmed. In 2014, research data showed that children in the United States spend approximately 943 hours in school annually. This is a significant amount of time that our children are away from parents and in the care of school employees.

What happens if you receive that dreaded phone call from the school informing you that your child was hurt at school by another student or another third party and has been transported to the hospital? Is the school liable for the child’s injuries caused by that third party? Unfortunately, the answer isn’t straight forward.

When the school takes custody of the child, the school assumes the protector role of a parent. However, under New York law, schools are not insurers of safety and cannot reasonably be expected to monitor and control all movements of every child. School authorities fail to provide adequate supervision when they have knowledge that similar conduct has caused injury in the past. Once the school has notice of dangerous conduct it has a duty to prevent that conduct from occurring. Despite this, a mere threat or a remote act of similar dangerous conduct does not meet the notice requirement.

New York courts have found that school authorities have a heightened duty to supervise younger children. In the frequently cited case, Garcia v. City of New York, 222 AD2d 192 (1st Dept 1996),a 5-year-old was permitted to go to the bathroom unsupervised and while in the bathroom was sexually assaulted by an older student in the school. The court held that even though the school had no prior notice, the school should be held liable. The court reasoned that had the school provided adequate supervision the sexual assault could have been prevented.

The following are some factors New York courts have considered when determining whether schools should be held liable for the acts of third parties:

  • History of physical assault or threats against the injured child
  • Similar prior conduct against another child
  • Remoteness of the similar prior conduct
  • Age of the injured child
  • Disparity in age between the victim child and the assailant
  • The egregious nature of the act committed
  • The length of time the child was left unsupervised

If your child has been injured by a student while in the custody of a school, it is important that you seek legal advice and guidance from an experienced attorney to ensure that your child’s injuries do not go uncompensated. The attorneys at Spiegel, Brown and Fichera, LLP have over 40 years of knowledge in prosecuting schools for failing to provide adequate supervision which unfortunately resulted in a child being injured.

The Right To Recover For Diving Injury

As summer approaches, many families will be heading to the pool, oceans and lakes to enjoy the cool water to escape the summer heat. Although pools, oceans and lakes are havens to enjoy favorite summer pastimes including swimming, boating and jet skiing; they can also be dangerous bodies of water in which people drown or sustain serious injuries. Tragically, from 2005-2014 there were 3,456 fatal unintentional drownings in the United States each year.

What many people may not be aware of is the prevalence of injuries sustained from diving. According to the American Association of Neurological Surgeons, an estimated 11,000 spinal cord injuries occur every year. These injuries result in paralysis, and/or traumatic brain injury. 90% of diving victims who hit their head on the bottom became quadriplegic. Among the leading causes of spinal cord injuries, diving ranked 4th for males and 5th for females.  In one study of persons enrolled in the National Spinal Cord Injury Statistical Center database, 57% of the injuries occurred when diving in less than 4 feet of water and 38% occurred at depths between 4 and 8 feet.

Under New York law, diving head first into a pool is not an intended use of pools and not a foreseeable use to manufacturers, retailers and landowners. However, if it can be shown that the defendant was negligent you may be able to recover for your injuries.

In what has become a frequently cited case in New York, Cynthia Fichera, a partner of Spiegel, Brown and Fichera, LLP, litigated on behalf of one of the plaintiffs in the matter of Kriz v. Schum before the Court of Appeals of the State of New York, 75 NY2d 25 (1989). In that case, in which the court decided two cases at once, Mrs. Fichera argued on behalf of a young woman who dove off of a slide into a pool and struck her head on the bottom rendering her a quadriplegic. The young woman did not see her friends dive into the pool and was not aware of the pool depth when she dove into the shallow end. The court found in favor of Mrs. Fichera’s client on the basis that it was foreseeable that she would dive off of the slide and that the defendants’ failure to advise of her of the pool depth contributed to her accident.

Denkensohn v. Aquaslide and Dive, 914 F2d 262 (9th Cir. 1990), (a separate action filed in federal court) also held the slide manufacturer liable for failing to include adequate instructions and warnings with the slide.

The courts have consistently held that property owners have a duty to warn possible users of a lake or a pool of its depth. In a 2011 case, the New York Court of Appeals held that the State, as a property owner, was under the duty to warn possible users of a lake where there was spillway caused the water depth to fluctuate between 3 and 10 feet. However, in that case the court dismissed the plaintiff’s claim because there was overwhelming evidence that the plaintiff was familiar with the area and had specific knowledge that the water depth varied and could be extremely shallow. The court followed the general rule that when plaintiff’s actions are the sole proximate cause of an accident, the case should be dismissed.

This summer, as you and your family head to the pools, oceans and lakes, be conscious of the dangers of diving and potential for shallow water. Taking these precautions into consideration may prevent a lifetime of disability. In the event of an accident keep in mind that over the years the law firm of Spiegel, Brown and Fichera, LLP has obtained successful recoveries of millions of dollars on behalf of plaintiffs injured in diving accidents and have the knowledge to help you get compensation for your injuries.

MAC:mo

4/19/17

What To Do If You Are Injured At Work

If you are injured in your place of work, it is highly recommended that you seek the advice of legal counsel. The first thing you should do in any case is inform your company that an injury has been sustained. Make sure that the appropriate insurance forms have been released and printed so you can move forward with filing a personal injury claim. Any attorney that you wish to ask advice from should be located within your state of employment, because injury laws vary from state to state. When looking for an attorney, you should first look locally. Personal injury lawyers within the area should be your first call.

There are two main components to consider when looking into receiving worker’s compensation. The first is that the government requires that the injury in question took place at your place of employment and that there is proof that you are currently employed with that company. The second requirement is that you sustained the injury in question as a result of your employment with the company. It is important to keep in mind while filing any personal injury lawsuit that even if both of these requirements are met, it does ensure that worker’s compensation will be awarded to you.

After you evaluate whether the above requirements have been met, it is up to you and your lawyer to determine if the case is worth bringing to trial. This will depend on such factors such as individual state laws and regulations. If you have been the victim of a work related injury, you should seek the services and advice of a worker’s compensation or personal injury attorney within your state as soon as possible. Not seeking advice from an attorney in a timely manner could result in not receiving a settlement at all or prevent you from receiving the full benefits that you deserve.