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.

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

Daylight Savings Increases the Risk of Pedestrian Injuries

The saying “spring forward, fall back” reminds us to set our clocks an hour ahead in the spring and an hour back in the fall. Although Daylight Savings enables us to enjoy more daylight hours in the summer when the weather is warm, as winter approaches daylight hours dwindle. It’s important to remember that even though the sun sets earlier, our daily routines remain the same. Children who were able to play outside after school are now returning home when it is already dark outside and adults commuting home in daylight are now commuting home in darkness. As we set our clocks back on November 6, 2016, keep in mind there needs to be a heightened awareness for pedestrians while driving to prevent injuries.