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

MUNICIPALITIES AND THEIR LIABILITY FOR DANGEROUS ROADWAYS

There are many motor vehicle accidents that occur that are not caused by the negligence of the drivers.  There are many roadways which are themselves, inherently dangerous and cause a great number of accidents.  In our most recent road design defect case, the law firm of Spiegel, Brown, Fichera & Coté, LLP, represented a motorcyclist in a claim against a municipality for a motorcycle accident that occurred with another car at a very dangerous section of the roadway.  The accident caused our client to suffer devastating brain injuries, multiple fractures to his spine, as well as nerve injuries to his arm which ultimately resulted in his right arm being amputated.  A claim was made against the municipality in which the road was located after investigation revealed that there was a history of accidents at that location.

A municipality owes to the public, a non-delegable duty to keep its streets and highways in a reasonably safe condition. This duty, however, is not absolute.  A government body enjoys qualified immunity for its decisions in maintaining its roadways.  What this means is that once a municipality is made aware of a dangerous traffic condition, it must undertake a reasonable study with respect to that condition and may be held liable if that study is either plainly inadequate or if the decision it makes after the study has no reasonable basis.

For a municipality to be liable it must first be made aware of a dangerous condition of a roadway.  One of the most common ways in which it can be shown a municipality knew or should have known of the dangerousness of a particular segment of roadway, is if there is a history of prior accidents at that location.  Unfortunately, just a number of accidents is not usually enough to establish the town had notice.  Prior accidents will only be admissible if the facts of those accidents are substantially the same as the accident which caused the lawsuit that you are litigating.  In such situations the judge has discretion of which accidents are admitted and the attorney must make sure they have gathered all the information available with respect to the prior accidents.  This is when an attorney’s experience in litigating a road defect case is critical.  Information gained during the discovery process from various sources outside of the municipality, including the local traffic and safety board and the various law enforcement departments who might have investigated the prior accidents, can make a difference of whether you are ultimately victorious in your litigation.

Once it has been established that the municipality was on notice of a dangerous condition, then it must be shown that they either failed to undertake a reasonable study or that the decision they made following the study had no reasonable basis.  For example, if it is claimed that a stop sign should have been installed at an intersection with a history of vehicles having collisions, it must be shown that the municipality failed to investigate why there was a high number of accidents at that location as opposed to other intersections.  If on investigation by the town concluded that there was a problem at that intersection, then there should be a record of what alternatives were discussed by the town and the reasoning behind what they did or did not do with respect to this problem to correct it.  If the municipality decided not to install a stop sign but instead put up a speed advisory sign reducing the speed through this intersection, then there must be a reasonable basis for doing so as opposed to the stop sign.  If the only reasoning was that the town did not wish to order a stop sign but had a speed advisory sign lying around, then the argument may be made that it was not a reasonable basis.  If, however, there was a budget crisis and they could not afford a stop sign at the time that may be considered a reasonable basis for not putting up the stop sign.

Once a municipality has determined what reasonable measures may be necessary to alleviate a dangerous condition, it cannot unjustifiably delay in taking that action. As one court stated “While the decision to install a traffic control device is a discretionary governmental function which will not expose a municipality to liability . . . a municipality that determines that a traffic control device is necessary to remedy a dangerous condition, must act with reasonable speed to correct the condition and it might be held liable where there is an unjustified delay in implementing its remedial plan.”

Cases against municipalities for dangerous conditions on the roadway can be very difficult and an attorney must have a good understanding of the law and the burdens of an injured person in presenting their case to recover for their injuries.  Many drivers who are involved in accidents because of a dangerous roadway never seek compensation for their injuries because they are unaware they are allowed to do so.  In the case noted above involving the motorcyclist, handled by the law firm of Spiegel, Brown, Fichera & Coté, LLP, it was learned that just eight months prior to our client’s accident, there was another almost identical motorcycle accident at the same location.  During our representation of our client, a thorough search was performed for any prior lawsuits related to the location of the accident.  We found that no other lawsuit involving this prior motorcycle accident had ever been filed or that any claim had been brought against the municipality.  The motorcyclist who was killed in this accident had a viable claim against the municipality just as our client did.  Unfortunately, his estate probably never realized this and never retained an attorney to prosecute the claim against the municipality, so his heirs were never compensated for the municipality’s negligence and how it contributed to his accident.  Even if you are involved in a single car accident you may not be at fault for its happening.  If it is a dangerous roadway then the municipality may be negligent for your accident and you should seek an experienced attorney to help you to help find out if you are entitled to compensation.


Friedman v. State, 67 NY2d 271 (1986).

Bresciani v. County of Dutchess, 62 AD3d 639.

Witkowski v. Escobar, 28 AD3d 543 (2nd Dept., 2006).

Can I Sue the State of New York?

What happens if the person who causes your injury is employed by the State of New York?  In general, the State is responsible for injuries caused by the negligence of employees while acting within the course of their employment, such as a car or other motor vehicle accident, a slip and fall or even an accident covered by the New York Labor Law.  In order to pursue a claim to recover damages from the State for injuries you have received, you will want to retain an attorney who is experienced in pursuing claims against the State.  Although lawsuits against the State of New York are permitted, they are governed by a different set of rules and are even brought in a separate court than other lawsuits.  While lawsuits against private citizens, corporations and even towns, cities and counties can usually be brought in New York State Supreme Court, lawsuits against the State and certain State-related entities have their own court called the Court of Claims.

The State also has its own deadlines for filing claims.  A Claim generally must be filed with the Clerk of the Court and served upon the Attorney General within 90 days of the happening of the accident, unless an Intention to File Clam form is served within that time, which will extend the deadline in the case of negligence to two years from the date of the accident.

One of the other differences is that your case will be decided by a judge, rather than a jury.  Claims brought against the State arising out of accidents that happen in the Hudson Valley are usually tried in White Plains or Albany, New York, which differs from accident cases against other defendants which may be filed in New York Supreme Courts, which are located in each county.

Spiegel, Brown, Fichera & Coté partner Cynthia K. Fichera has experience in obtaining recoveries against the State of New York, 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 sustained in a car accident where a prison van pulled out in front of the injured client’s car, and $80,000 for a knee and ankle injury sustained from a slip and fall on ice on the State’s property.  Spiegel, Brown, Fichera & Coté has also brought claims against the State of New York for accidents involving slip and falls on ice, slip and falls on damaged sidewalks and premises liability on SUNY campuses.

Spiegel, Brown, Fichera & Coté provide experienced injury litigation services throughout Dutchess County and the Hudson Valley, including Poughkeepsie, Hyde Park, Highland, Wappingers Falls, LaGrange, Unionvale, Pleasant Valley, Fishkill, Beacon, East Fishkill and Hopewell Junction, as well as Ulster, Orange and Putnam Counties.