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

CONSTRUCTION ACCIDENTS – FALLS AND COLLAPSES

There are special provisions of the New York Labor Law (Sections 200, 240 & 241(6)) which provide special protection for workers who are required, as part of their jobs, to work at “elevated heights”. “Elevated heights” has been held by courts to cover everything from Skyscraper scaffold cases to beams only a few feet off the ground (in the latter cases it depends on circumstances).

The Firm of Spiegel Brown & Fichera, LLP has specialized in the handling of a wide variety of construction accident cases for over 30 years.

It is important to know, if you are an injured worker as a result of a fall or as a result of an object falling upon you from an “elevated height”, you may be eligible for a special status under the New York Labor Law which has been designed to protect construction workers.

The business community, especially the insurance industry and the U.S. Chamber of Commerce have fought with the Legislature in Albany to have these laws changed. The trial lawyers of New York, such as Spiegel Brown & Fichera, LLP, have fought diligently in the Legislature to “hold the line” on preserving these special protection for construction workers.

More importantly, of course, is that we have fought successfully, in the courts, for injured workers who have fallen or had objects fall upon them, as a result of collapsing scaffolds, ladders and many varied circumstances too numerous to mention. In the process, we have managed to obtain substantial recoveries that have made our clients financially whole – which the worker’s compensation laws just simply do not accomplish for seriously injured workers.

If you are a construction worker who has been injured as a result of a fall from a height or as a result of an object falling from a height, you should call a law firm who has had long and successful handling of these types of claims for its clients over many years, such as Spiegel Brown & Fichera, LLP.

We will never charge you a fee for anything on a worker’s construction accident case, except as may be clearly disclosed to you, in advance and in writing. We provide free consultation and, if we agree to represent you in your claim, any fees will be incurred by you and payable by you, only – and if – we recover for you.

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).

BABIES INJURED BY MEDICAL MALPRACTICE HAVE NO CHAMPION IN GOVERNOR ANDREW CUOMO

Without much doubt, the number one category of cases in which we receive telephone solicitations for legal consultations is that of medical malpractice. Probably 95 percent of these inquiries result in our taking the time to chat with the potential client and then to explain why, even in cases of rather clear medical negligence, there is no basis to bring a suit.

Why is this? The answer is that, contrary to the insurance industry’s expensive advertising campaign, the doctors have “won the war” in New York State on the medical malpractice front. How have they done this? These are some of the critical ways:

a) Unlike any other type of personal injury case in New York State such as a car accident or slip and fall, a lawyer may not even file a medical malpractice case unless and until he or she has obtained all the medical records, reviewed the medical facts and the legal issues, referred the case to an independent expert for a formal review (an expensive and time consuming process that must result in a positive expert finding of malpractice and significant harm to the patient).

b) An industry-wide commitment not to settle even the most clear cut cases of doctor-inflicted injury until the case is literally on the eve of trial (unlike most other personal injury cases where a lawyer who is able to prove a clear cut injury and strong fault can achieve a fair settlement in timely fashion for his client).

c) Special rules that limit the lawyer’s contingency fees to as little as one half of the normal contingency fee percentage that is permitted in all other types of injury cases in New York.

Because of the tremendous investment of time and money in bringing these cases, medical malpractice cases are only brought by the most experienced and best trial lawyers in this State. They are also defended by among the very best of the civil defense bar (with all due respect to the automobile insurance company’s lawyers, those that defend doctors and hospitals in medical malpractice cases, are paid three or four times as much and are regarded as extremely competent advocates). Despite the fact that these cases are brought by the very best trial lawyers and have been reviewed and certified to be the result of serious medical negligence by independent medical experts, almost three out of four jury verdicts in this State are in favor of the doctor or the hospital.

In the face of this, the insurance industry has created a web of lies and myths about a “litigation explosion” and alleged punitive damage awards which have shattered New York’s economy. This dishonest campaign of the insurance industry has been ignored by the media (see, however, “Selling Out Injured Baby Rights”, Ralph Nader, www.nader.org).

The fact of the matter is that there are no punitive damages permitted in New York State for medical negligence. The vast majority of the seven figure medical malpractice awards/settlements are in situations involving avoidable birth defects to brain-damaged and other permanently handicapped babies who are victimized — usually while still in the womb — by careless doctors or nurses. These are, obviously, significant exceptions. Nevertheless, these few large awards — almost invariably well justified — are thrown up by the insurance industry to mislead, not only the public, but the medical practitioners themselves to create an atmosphere of fear and of litigation run amok.

Now Governor Andrew Cuomo, in a most cynical fashion, has attempted to curry favor with the insurance industry in Albany (the strongest lobby in our State Capitol) by submitting a budget which would include, buried in the various expense items of the State, a $250,000.00 cap on pain and suffering awards in birth defect and other brain-damaged baby cases in New York.

It is urged that all citizens contact Governor Cuomo’s office as well as your local Assemblyman and Senator and tell them that you oppose Governor Cuomo’s medical malpractice Proposal Number 131.

TRAUMATIC BRAIN INJURIES: A DEVASTATING INVISIBLE INJURY

When a person has an accident and is injured, the most obvious types of injuries are those that can be seen. Injuries like broken bones, lacerations and resulting scars are easily visible to the naked eye but there are many injuries which cannot be seen. Injuries such as neck and back injuries and traumatic brain injuries, while invisible to the naked eye, can often be far more devastating than those that can be seen.

Society is finally starting to pay attention to traumatic brain injuries like concussions. Professional sports leagues, like the National Football League, are conducting studies and some very high profile athletes have had long-term injuries caused by concussions. Last year, a baseball player named Justin Morneau of the Minnesota Twins, a former Most Valuable Player, did not play in a single game following the All Star break after suffering a concussion. His status going into the Spring, 2011 season remains uncertain.

Traditional media is also starting to pay more attention to brain injuries. For example, USA Today published a detailed article concerning a health insurance gap encountered by many, if not most, brain injury victims (“For brain injuries, a treatment gap”, USA Today, 3/2/11).

Traumatic brain injuries are a serious disease that affects millions of people each year. The Center for Disease Control reported 1.5 million people diagnosed with traumatic brain injury in 2001. A traumatic brain injury, like a concussion, occurs when there is a trauma to the brain. For example, when a person slips and falls or has a car accident and strikes their head, their brain will shift within their skull and come into contact with the interior of their skull. The human skull is not smooth on the inside but rather has ridges. When the brain comes into contact with these ridges, injury can occur. It is in these situations when a person may suffer a concussion.

A concussion can occur in a person with or without a loss of consciousness. Acute signs and symptoms of a concussion are: fatigue, nausea, vomiting, headache, dizziness, confusion and seizures. Long-term symptoms include confusion, memory loss, change in personality, poor attention, changing of sleep patterns, becoming upset easily or a short temper, depression and feeling lethargic.

When you are in an accident and suffer a blow to the head you should be aware that you may have suffered a concussion. If you have any of the above referenced symptoms, you should immediately tell your treating doctor and request to see a neurologist, particularly if symptoms are persisting. Because a traumatic brain injury is not always readily apparent, symptoms are often minimized by a patient and they do not even realize they are suffering this injury.  Often symptoms like confusion and a memory loss are ignored by a patient until, months later, they are having difficulty when they return to their job and find that they are not able to perform all of the activities they were once able to do easily. As an attorney who has litigated these types of cases, it is often difficult to causally connect these symptoms back to the original accident if the symptoms of the brain injury are not documented in medical records at the time of the accident.

The long-term effects of a brain injury can often be far worse than those of the obvious injuries suffered in an accident. A broken bone will often heal and the injured person is able to return to their regular daily activities. However, when a person is suffering the long-term effect of a concussion that causes them difficulty in their concentration and memory, these effects can cause undue stress and difficulty with their relationships and their careers for years after their accident. For this reason it is very important when you suspect that you have suffered a concussion in an accident that you advise your doctor of all your symptoms, particularly if you are suffering headache or nausea.

Often, a patient who is diagnosed with a traumatic brain injury will be referred to a neuropsychologist. A neuropsychologist has training in evaluating the effects of a brain injury. They will conduct extensive testing which can be performed over several weeks to assess the impact a brain injury has had on an individual. A good neuropsychologist can assist a patient in understanding their limitations caused by their brain injury so they will know how to deal with them in their everyday life. For example, if a patient suffers short-term memory loss, they may sometimes “blank out” for a moment while driving and not know where they were going. If a person is aware that this could happen, they can make sure to have a GPS with them at all times while driving so if they do suffer this, they can look at the GPS and not suffer distress while driving.

A traumatic brain injury can be a very difficult injury to live with. Often, its effects go unnoticed until a patient’s life is later disrupted. What’s more, our society has tended to minimize injuries like concussions. Thankfully, this attitude is beginning to change and traumatic brain injuries are becoming recognized as the severe injury that it is and new treatments are being developed to assist patients in overcoming them. People should be aware that they can easily suffer a traumatic brain injury when they have an accident, like a motor vehicle accident or a slip and fall. They should report all symptoms they are feeling to the emergency room doctors and their medical professionals to make sure they get the treatment they will need to assist them in overcoming this sometimes difficult and long-term injury. They should also consult an attorney who has the knowledge and experience handling traumatic brain injury cases to make sure they receive proper compensation for this complex and often devastating injury.