Recently in Premises Liability Category


June 17, 2015

As a trial attorney I am often contacted by client's who request my opinion on whether their chid's accident in a playground was due to negligence. They ask questions like, was there enough supervision? Did the children have enough instruction on how to use the equipment? Aren't monkey bars dangerous generally?

Often the answer results in my firm not pursuing the case. Kids do get hurt. Sometime's accidents happen. However, recently I was contacted by a wonderfully nice family and presented with an interesting case.

Their six year old son who was in first grade at the time, had fallen off a piece of equipment during school in the playground. He described the equipment as monkey bars. In fact, the school incident report also stated he fell from the monkey bars. He told me he was jumping off and landed hard on his elbow on the mat below. He had a fracture to his elbow that would require percutaneous pinning which is when a doctor places a pin through the skin to allow the bone to heal. The pin is removed a few weeks later when the bone has calcified.

At first I advised the family, that based on those facts it would seem very difficult if not impossible to bring a case against the school for negligence. Kids play, there are monkey bars and falling from them, absent a design or construction defect would likely not be a case. Especially in Staten Island, a very conservative county.

The client's mom told me she was going to visit the playground to make sure and see the layout. I of course offered to accompany her to the playground. We met and her son showed us to the area where he was playing. I was shocked. THIS WASN'T MONKEY BARS... THIS WASN'T ANYTHING I HAD EVER SEEN. IN FACT THE EQUIPMENT WAS WHAT WE LATER LEARNED WAS CALLED "ROLLING TABLE". IT IS A TABLE, SET ALMOST TWO FEET OFF THE GROUND (ATSM, The American Society for Testing & Materials rules and guidelines require exit slides and other equipment to be a maximum of 15" off the ground. the table had rollers running all across it. All the way to the ends. In the middle above the table was handles that looked like monkey bars.

We asked her son what happened. He said that he was playing and when he stood up to jump off the table, his feet rolled from under him as he was stepping down. That caused him to lose his balance and strike his elbow on the metal edge of the table.

I immediately advised the mother that this certainly seemed dangerous for 6 year old kids to be playing on. We asked her son if he was ever shown how to use the equipment. He said no.

Upon further investigation by the family and my firm along with our playground expert, we learned several important facts:

1. The school was never given instruction by anyone who installed or put the equipment in on how to use it.
2. The manufacturer sells this table normally with a flat non rolling ends so that in case used by children they have a safe method of exiting the table without having to step on rollers
3. The apparatus was meant for handicap individuals and the table would allow them to roll their body in a seated position while holding on to the monkey bars above. At the end, their assistant, would help them roll off back to their wheelchair or assisted devices.
4. The teacher testified that she never understood a safe method of using the equipment and just thought kids would figure it out.

Needless to say, my firm was retained, we prosecuted the case and as soon as we made it clear to the City of New York that the accident was caused by negligence they offered to resolve the case for a an amount that represented the full and complete value of damages.

In addition, my law firm received the following email the very next day after the matter had settled in Court:

"Ed - Would you kindly scan me color photos of the playground equipment? I would like to refer this to our RISK unit to remove or restrict the use of this equipment so that no children are hurt in the future. Thanks in advance and all the best."

The mom of the boy also wrote my firm an email which indicated their appreciation for our efforts and the outcome: Name's have been changed.

Dear Mr. Steinberg,
This news means more to me than anything. The day "John" was hurt was a very emotional day for me as he needed surgery and I worried about his future. Days after October 24th I went to visit the playground and knew in my gut as a parent that this equipment was unsafe. Not only for what happened to "John" but children could also get their tiny fingers caught in between the bars and if a girl with long hair laid on the table, her hair could possibly get rolled up in the bars. Since that time I advised "John" to never go on this equipment again as the students still go outside for outdoor gym. I had spoken to the parent coordinator and requested that they give the students instruction on how to safely play on this equipment perhaps at a school assembly but to no avail.

As my youngest is entering "School" in September for kindergarten I have given him my same speech about not playing on the rolling table as I would not want him to go through what "John" went through. I still see this equipment as an accident waiting to happen. As I drove to pick up "John" from school yesterday and saw the table again, I saw a young child standing on it. I immediately thought to myself, "Please don't let her get hurt." As I say this I remember bringing "John" to his pediatrician as he wore the brace and she said that I should take his picture and tape it on the equipment to warn parents to not have their children go on the rolling table.

If this case can remove the unsafe equipment, I know we have truly made the world a better place. As sappy as it sounds, as a parent and educator, I am overjoyed that "John's" case will hopefully bring about a safe environment for all kids.

I want to thank you again for being "John's"attorney through this all. From the moment I spoke to you on the phone, I knew you were a dedicated professional that would fight for what was right. When I met you I could see that you were sincere and treated my son fairly and were appropriate to him considering his young age. You treated "John" as if he was your own, never stopping for what you believed he deserved. From the bottom of my heart, my family thanks you for your time, dedication and availability at all times.

"Jane Doe"

The lesson I learned was that a lawyer must always investigate a matter as best they can as soon as they can. Furthermore, most attorney's would have heard monkey bars and boy falling and probably passed on the case. Our investigation and cooperation from the family was critical in the successful outcome.

All Work, Snow, Ice, and Wetness

March 4, 2015

Appeals coming to fruition now were in the making long before 2015 arrived and the New York Appellate Courts have already decided thirty or so snow and ice cases this year. Many more will be coming. As we prepare for the next big storm that's coming, let's examine some general legal issues. For purposes of this blog, we will stick to the basics and not assess each and every fact in detail (quite unlike what this firm does when prosecuting real cases). We will also point out the major caveat that each and every case is unique. A case's existence and outcome will vary based on a multitude of factors that will not be fully explained in this blog.

Envision this. You are a young attorney who is preparing for trial. On your way to the office last Saturday morning, you slip on the marble floor of your large office building lobby, sustaining serious injuries. Unfortunately for your injuries, there is no case. A vestibule floor that was inherently slippery due to its smoothness is not an actionable defect. See e.g. Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015).

Next scenario. It's still Saturday. You receive a surprise flower delivery, but since your office is technically closed and the firm's secretary is not working, you go down to the lobby to get it. Unbeknownst to you, before you arrive on the scene, the delivery man spills water from the vase onto the floor. You slip on it, sustaining serious injuries. Here, you could establish fault of the flower delivery man and/or the building officials if you can show that they created the spill or had sufficient notice of the wet condition that caused the slip and reasonable time to clean and/or warn. See e.g. Weiss v. Gerard Owners Corp., 22 A.D.3d 406, 803 N.Y.S.2d 51 (1st Dept. 2005).

Next scenario. Same day. You take a taxicab home from the office because the 7 train is not running due to weekend construction, plus you have a large rolling bag with your heavy case file. The cab skids on ice and crashes into a pole, causing you serious injuries. The particular conditions at hand will be key to assessing fault of the taxi driver. The conditions include, but are not necessarily limited to the speed of the vehicle, the road conditions, the weather, and what the driver did (if anything) to try to avoid an accident. See e.g. Simpson v. Eastman, 300 A.D.2d 647, 753 N.Y.S.2d 104 (2nd Dept. 2002).

Next scenario. It's Sunday, late in the morning, and you feel a bit lax about your schedule today. You head to the gym for a long workout before starting the day's trial preparation at home. You are wearing Asics running shoes, which are great for fartleks, but not exactly built for inclement weather. You walk on nondescript wetness on the sidewalk then a metal grate on which you slip and fall, sustaining serious injuries. One thing you should know is the defense and/or court may want to examine your shoes. In Wright v. U.S., 866 F.Supp. 804 (SDNY 1994), the court noted that the injured person's shoes were not produced or examined by an expert who could evaluate locations, angles, and indentations to ascertain whether the accident happened as the injured person claimed. Additionally, the Wright court pointed out that the disappearance of the shoes could result in a negative inference against the plaintiff. Beyond that, your choice of shoes could subject you to an argument that you were at fault for your own accident. See e.g. Vallade v. Fischer, 2014 WL 5481881 (WDNY 2014) wherein the injured person was wearing oversized shoes [upon information and belief they were not clown shoes, just too big for him] but was caused to fall by an officer who was rushing him and not holding onto him appropriately. On the flip side though, if you are able to prove that your shoes were defective, there may be a better case. Speirs v. Dexter Shoe Co., 42 A.D.3d 494, 840 N.Y.S.2d 610 (2nd Dept. 2007).

Back to the main issues at hand with the next scenario. It's Monday evening. You meet with an expert at his midtown office. On your way out after the meeting you get an email that you should be at the office prepping for tomorrow's evidentiary hearing on another attorney's case. Feeling anxious about that and wanting to do your duty, you furiously rush home to review the file. In the midst of your manic panic, you slip on wetness that was tracked in by other visitors, sustaining serious injuries. What are some things you should consider in determining whether you have a legitimate case? "[A] defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable to undertake remedial action [citations omitted]." Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015). Additionally, astute defense counsel will ask you about your pace before the fall and try to lay blame on you. Although this technically constitutes blaming the victim, the law allows defense to take on the burden of proving comparative fault.

Next scenario. It's Tuesday evening. You leave the office at 7 PM wearing big black snow boots with rubber treads. It's precipitating. The sidewalk in front of your building is covered in an inch or two of snow and ice. Despite your appropriate footwear, you slip and fall, sustaining serious injuries. Unfortunately for your injuries, again no case. "Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, 'until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm [citations omitted]." Fernandez v. City of New York, 2015 NY Slip Op 01410 (2nd Dept. 2015). See also, Fisher v. Kasten, 2015 NY Slip Op 00491 (2nd Dept. 2015).

Next scenario. It's Wednesday. You head to the gym in the five o'clock hour to get there as soon as it opens, have enough time to work out, and make it to court at 9:30. It's dark and not many people are out and about yet. It snowed the prior day and stopped after 11 PM. You slip on a neighbor's snow and ice covered sidewalk, sustaining serious injuries. New York City Administrative Code ยง 16-123(a) says the owner, lessee, tenant, occupant, or other person having charge of the building or lot of ground in the city abutting any street where the sidewalk is paved had until 11 AM to clear the snow and ice from the sidewalk. Bi Fang Zhou v. 131 Chrystie St. Realty Corp., 2015 NY Slip Op 00825 (1st Dept. 2015).

The foregoing fact patterns, which are mostly fictional, are here for purposes of illustrating a few points of law which may or may not apply to other situations. Any real case should be considered in totality based on as much information as possible. In conclusion, be careful and clean up walking surfaces. The storm is coming.

Additional resource:

New York City Sidewalk Accidents

February 13, 2015

Leav & Steinberg, LLP often receives calls from people who trip and fall on a city sidewalk and are injured. One would assume since it is a city sidewalk the city would be solely responsible for the maintenance and repair of the sidewalks. However this is not always the case.

In 2008 a law was passed by the NYC counsel shifting the responsibility to maintain and repair sidewalks to the building owner in most instances. The city is now only responsible to maintain and repair sidewalks adjacent to 1, 2 or 3 family, owner occupied houses. So if you fall on a sidewalk adjacent to a commercial building or high rise Apartment the building owners insurance company is responsible to compensate you for your injuries. However, it is very important to call Leav & Steinberg, LLP immediately after any trip and fall so we can do a complete investigation and protect your rights. If the city is involved a notice of claim must be presented within 90 days.

Leav & Steinberg, LLP has recovered millions of dollars on behalf of our clients who unfortunately fell and got injured after falling on a defective sidewalk. It is always best to call us immediately so we can protect your rights.

The Past, Present, and Future of Protecting Privates in Personal Injury Cases

January 15, 2015

One of a personal injury attorney's most important tasks is to protect clients. Two major parts of that involve ensuring clients have the best case possible under the law and protecting their privacy. Our last blog was about how injury attorneys can fortify a case with information from vehicle event data recorders. We linked to the New York law about the disclosure of the information recorded by event data records, such as speed, location, and brake performance. That type of activity recording raises privacy concerns, but that comes with the injury case territory.

Another privacy issue arises from a similar recording device, the license plate recorder. License plate recorders are cameras that may be mounted on things like police cars, tow trucks, traffic signs, and bridges and they have the potential to track each and every location an individual has driven. The ACLU has called for more legal restriction on the information obtained by these devices based on rights contained in the Fourth Amendment, in part because private companies are disclosing information with little to no oversight. Some states have already passed laws on the retention of the information collected from these cameras.

New recording devices raise new issues; as technology evolves, so does the law. But personal injury attorneys have been dealing with countless privacy issues since the start. Most commonly we deal with the Health Insurance Portability and Accountability Act, also known as HIPAA law. The law says injury attorneys have to turn over certain medical records and authorizations releasing medical records directly from healthcare providers to the attorneys whose job is to defend the case. A proper HIPAA authorization is always required to release medical records, but generally speaking only records related to the body parts injured in the accident need to be turned over. In Gumbs v. Flushing Town Center III, L.P., 1114 A.D.3d 573, 981 N.Y.S.2d 394 (1st Dept. 2014), the Appellate Division affirmed the decision of the Honorable Laura Douglas to protect the plaintiff from providing authorizations to the defendants relating to some of his own medical records. His case was related to injuries sustained to his shoulder and ankle. The defendants were seeking records from his cardiologist and primary care physician. The defendants claimed the records were related to the plaintiff's ability to work and his life expectancy.

New HIPAA-related issues were created by electronic filing. Although putting bulky legal files into electronic form has its benefits, it also allows anyone who is capable of setting up an account to have easy access to a complete stranger's medical records. The state court rules and the federal court rules both require redaction of the month and date of an individual's date of birth and all but four digits of a social security number, among other things.

Another privacy issue, though one which has been litigated in relative detail at this stage, is disclosure of family members' records in toxic tort cases, such as those involving lead paint. Some common demands made by defense counsel when faced with claims of an infant who was exposed to lead paint in their apartment are for the mother's medical, pharmaceutical, and academic records. Another common demand is for the medical records of the siblings. In Vazquez v. New York City Hous. Auth., 79 A.D.3d 623, 914 N.Y.S.2d 127 (1st Dept. 2010), a young individual was exposed to a lead paint condition which exacerbated his pervasive developmental disorder. The defendant wanted to see the medical and academic records of the siblings, who were not involved in the lawsuit. The courts found that there was nothing more than speculation to support the notion that the siblings' mental condition had any bearing on the plaintiff's condition and denied the request.

The common thread among these issues is that privacy, confidentiality, and privilege are still being protected while technology is helping us do what we need to do in a different way. It will be interesting to see how, as technology evolves, the law draws a line to balance competing interests.


The Legal Examiner, Is Privacy Jeopardized by LPRs? by Steven J. Klearman, 01.08.15

ACLU, You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans' Movements

Colossal Explosion in Manhattan's East Harlem Kills Two and Leaves Many Seriously Injured

March 12, 2014

An explosion today in Manhattan's East Harlem caused a piano store and an evangelical church to crumble to pieces, leaving a grim scene behind. The buildings, which were located near 116th Street and Park Avenue, also contained fifteen residential units. The incident was reported to be deafeningly loud, like a bomb. One witness described the feeling in his room nearby in the Taft Houses as similar to experiencing an earthquake and a car crash at once. The force of the explosion caused debris to spew onto elevated Metro North train tracks across the street, resulting in temporary suspension of service. Residential and commercial building windows nearby were shattered to pieces. People ran into the streets and gathered there in crowds. Smoke and flames poured out of the wreckage while first responders dug into the bricks, looking for survivors.

Two fatalities and twenty-eight injuries have been documented. The injuries range from minor to severe. One individual reported hearing loss and another individual seems to have suffered a brain injury. Almost two dozen of the injured are being treated at Mount Sinai Hospital. A handful are being treated at Harlem Hospital. Other hospitals with patients with injuries from this incident include NY Presbyterian, Weill Cornell, and Metropolitan Hospital. Numerous people remain missing at this time.

The cause of the explosion has not yet been determined. However, a Park Avenue resident notified Con Edison of a gas leak at 1652 Park Avenue at 9:13 A.M., approximately fifteen minutes prior to the explosion. The caller specified that the odor may have been coming from the exterior of the building. Con Ed's work truck did not arrive at the scene until after the explosion. An eight inch low pressure gas main services this area; its condition is presently unknown.


CNN, Two buildings collapse, at least 2 dead after Manhattan explosion, Ray Sanchez, 03.12.2014

abc News, Two Dead, at least 28 Injured, Several Missing in NYC Building Explosion, Liz Fields, Aaron Katersky, Josh Margolin, 03.12.2014

Toxic Mold and Sick Buildings - How to Protect Yourself

May 14, 2013

Under the lip of the kitchen sink. In the corners of the shower. Around the base of the bathroom sink faucet. Then there are always the science experiments in the back of the refrigerator. These are common areas of mold growth. Mold can be a good thing, like penicillium that produces the antibiotic penicillin. But too much penicillium, or aspergillum, or cladosporium can result in black mold that can endanger a person's health. The Environmental Protection Agency (EPA) warns that mold exposure can cause "allergic reactions, asthma, and other respiratory complaints."

Mold in New York

Molds are prevalent in moist areas. If there are leaks in pipes or a roof, that can be enough create the right conditions for mold growth. Richard Fields saw mold in his apartment in August 2003. He went to the hospital in September 2003 for headaches and nosebleeds. He told the doctor he had mold in his apartment and the doctor said the mold could cause his symptoms. Fields filed suit in January 2006 for mold exposure against the Lambert Houses Redevelopment Corp, the owner and manager of Fields' apartment building. Fields amended his complaint to add estimated medical expenses.

At his deposition, Fields testified he saw mold in his apartment in January 2003 and sought treatment for exposure in February 2003. Lambert Houses Redevelopment Corp. moved for summary judgment to dismiss the complaint claiming Fields' claims were time-barred. Fields opposed the summary judgment motion, submitting his hospital records showing he had visited the hospital in February 2003, but had not sought treatment for mold exposure until September 2003. The court denied the motion for summary judgment stating that it was an issue of fact about whether Fields had timely filed his suit.

Lambert Houses Redevelopment Corp. filed an appeal to the Appellate Division, First Department. The Appellate Court upheld the Supreme Court, Bronx County decision that the timely filing of suit was an issue of fact to be decided at trial.

What to Do About Mold

If there is a leak, the EPA recommends cleaning and drying damp areas within 24-48 hours to prevent mold growth. Hard surfaces can be cleaned with water and detergent and dried completely. Absorbent materials such as ceiling tiles may need to be replaced. The EPA recommends keeping relative indoor humidity to between 30 and 60% and venting moisture-build-up areas such as kitchens and bathrooms to the outdoors.

For individuals sensitive to molds, exposure can cause nasal stuffiness, eye irritation, wheezing, or skin irritations. More serious reactions can include fever and shortness or breath. For individuals "with chronic lung illnesses, such as obstructive lung disease, [they] may develop mold infections in their lungs."

The New York State Department of Health gives information on molds on their website. The website gives some basic instructions on getting rid of mold. The information was gathered and assessed by the New York State Toxic Mold Task Force set up in 2010. The Task Force recommended improving building codes to prevent and minimize potential water problems in new buildings as well as existing buildings.

If you have found mold in your residence or workplace and have not had a positive response from your landlord or employer to remedy the problem, seek advice from our NYC personal injury attorney to protect yours and your family's health.

See Related Posts:

Food Poisoning and Possible Legal Recompense

When Are Property Owners Liable for Injuries on Their Property?

Bronx Students, Department of Education Staff, and Others Who Were Around the Bronx New School (P.S. 51X) Exposed to Toxic Chemical

When Are Property Owners Liable for Injuries on Their Property?

March 29, 2013

Accidents happen everyday and are a part of life. However, some are more serious than others. If you get injured, it can cost time and money to get you back to where you were before the injury. When the injury is not your fault, the consequences of the injury should not fall on you alone.

Take for example, the recent New York case of Gale v. St. John's University. Lisa Gale was hired by a third party company to replace stained ceiling tiles in various campus buildings. She regularly worked on St. John's University ("St. John's") doing general janitorial work which often included changing tiles after it rained in the area. Ms. Gale was working at St. John's when she was hit with a piece of metal from the ceiling grid in the bathroom of the university's Campus Center, which caused her to fall while she was changing the ceiling tiles. She sued St. John's for her resulting injuries because the school failed to keep the area safe.

In New York, a property owner cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff, Ms. Gale, establishes that the owner either created or had actual or constructive notice of the condition. Constructive notice happens when the defect is visible and obvious, and it must exist long enough for the defendant, St. John's, to both find it and fix it. There is no constructive notice when the issue might not be detected with a reasonable inspection. Ms. Gale tried to claim that the repeated heavy leaking, in that bathroom, after most storms, should have been enough for the school to at least check the pipes. The court however disagreed. The judge found that a regular leak was not proof of the greater safety issue. Also, because the pipes were above the ceiling tiles, a reasonable inspection would not have the issue.

There was also a second reason Ms. Gale lost her case. Many claims require that in additional to being injured and showing it is the fault of the person you are suing, that you must also show the need for damages. Usually if there is an injury, there will be hospital costs, or days missed form work, or something similar that can easily show you require compensation. In this case, however, Ms. Gale could not show damages. In a previous hearing, which was part of this case, Ms. Gale was told to visit a court chosen doctor to review her injuries. This is common in personal injury cases because the court, and the opposition, want to make sure you are in fact injured. Ms. Gale failed to visit the doctor within a timely manner and due to a previous order of the court, was barred from testifying about damages. Without this evidence, Ms. Gale's case was incompletely and would not have been able to go forward even if St. John's had notice of the issue and failed to act.

Every case is different. One seemingly minor fact can mean the difference between winning and losing. Court cases are complicated and have a lot of steps that must be followed. You must do all that is asked of you by the court whether asked directly, such as during preliminary hearings, or through the court rules. Everyday cases are decided due to procedural issues, which, if that is not enough to completely end the case, will cost time and money fix. No one can guarantee a win but having an attorney with experience handling personal injuries can help you stay on top of all requirements and put your best case forward. If you have been injured, you should contact an experienced attorney today.

See Related Blog Posts:
Do You Know What To Do If You're Injured?
Recent Declines in Construction Site Safety Lead to Injuries and Deaths

Do You Know What To Do If You're Injured?

October 23, 2012

Sustaining an injury, whether it is a slip and fall or a car accident or something else entirely, can be a scary and confusing time. For many people, sustaining a serious injury is among the lowest points in their lives. It can be particularly confusing when someone else is at fault for your injury. While no one wants to think about bringing a lawsuit immediately after an injury occurs, it is in your best interest to prepare as though a lawsuit will occur.

First, you need to make sure that your medical needs are taken care of. It will not do you any good to start any of the other steps if you have not ensured that your medical needs are met. In fact, it may hurt your lawsuit if you neglect your medical needs, as the defendant could argue that your injuries were increased by a failure to seek immediate medical attention.

It is important to retain any physical evidence related to your injury. Preserving any physical evidence of the incident can help to prove your claim in court. You should, when possible, gather the evidence as soon as you can, because accident scenes can change or be altered. For example, make sure you keep any torn clothing, broken equipment and important documents, and try to keep them in the same condition.

Photographs of car accident scenes or the area where someone fell can provide a lot of information for your attorney. Taking photos is very easy, as well, because so many people have smartphones with cameras. You should generally try to take photos of the scene from multiple angles. Remember, it is better to have too many photos rather than wishing you had taken more.

A witness can be very helpful in proving your claims. Once an incident occurs, if you are not too injured, try to obtain the name and contact information for anyone that may have seen what happened. Remember that people may move, ignore phone calls or simply forget, so you should always try to find as many witnesses as possible to ensure that you have someone able to confirm your story.

Police Report
If you are involved in a car accident, or any other incident where law enforcement was summoned, like an assault, then a police report will be created. You are entitled to receive a copy of the officer's police report. Generally, you just need to contact the police department to request your copy, although sometimes it may take a few days and you may be required to pay a small fee.

The police report can provide significant evidence to help bolster your case. For example, in a car accident, the report will often provide a description and diagram of the accident, along with the officer's conclusion regarding fault. Some police reports even contain the names of witnesses. In short, a police report provides information that is valuable throughout the case, from determining whether to sue to settlement negotiations to trial.

Finally, you should try to write down as much as you are able, particularly right after the incident. Be as descriptive as you can, and include what you noticed about the scene before the incident. Make sure that you take notes regarding exactly what happened, including both before and after the incident occurred. And don't forget to include your emotional state as well, as that can be important. Also, documenting your injuries, and especially any difficulties with everyday life can help to establish how your injuries have affected you.

Grocery Store Accidents in New York City

October 16, 2012

Every day, thousands and thousands of people go to the grocery store or corner market to buy food and other items that they need for daily life. For the most part, these visits are the same. People enter the store, pick out the items they wish to purchase, check out at the cash register and then leave the store to go home and enjoy their purchases. However, not every visit to the grocery store is without incident, as there are dangers inherent to grocery stores, some hidden and some are more obvious.

Some may sneer at these sorts of incidents, but the fact remains that premise liability incidents occur frequently and local residents are hurt all the time as a result.

As most people know, grocery stores stock produce for customers to purchase. Most produce displays are set up in a way to be attractive to the consumer, without regard to safety. It does not take much for a piece of fruit, like a grape, to get knocked off the display and end up on the floor. Once the grape is on the floor, it becomes a slipping hazard. When a grape is squashed, it becomes slippery and may be enough to cause a customer to slip and fall.

Similarly, grocery stores stock items in glass jars, like pickles, mayonnaise and olives. These types of items pose a double danger. First, another customer may knock a glass jar off the shelf, and very few of them will alert the store personnel. They will simply walk on as if nothing happened. The broken glass creates an obvious hazard, as it may cut anyone that touches it. Additionally, the contents of the glass jar is now spread on the floor, and may not be visible. Like the grape, this becomes a slipping hazard where you may unintentionally fall. This type of situation is arguably worse than that of the grape, because you may fall onto the broken glass, making the injury worse.

Second, glass jars may be stacked precariously on high shelves, or on eye-catching displays. The grocery store's stocking personnel may not consider the consequences when they are stacking mayonnaise jars on a high shelf or on top of display, but many people have been injured when a glass jar or other food item falls from a high area and hits them. It may seem like a falling jar would not cause much of an injury, but glass jars can be very heavy and, particularly with elderly customers, it may not take much to cause an injury.

All grocery stores have refrigerated and frozen sections, where they keep meat, dairy items and other food that must be kept cold. All of the refrigerated and frozen displays create a lot of condensation. The displays are designed to deal with the condensation, so that it does not become a hazard. However, as many people can attest, machines can break. When these freezer and refrigerator machines break, they may begin to leak water onto the floor nearby without anyone noticing. A large puddle on a tile floor can be very, very slippery and may cause customers to fall.

It is always important to be aware of the dangers that may be involved with your typical trip to the grocery store. However, even those that are aware of the dangers may not always escape injury, and when that happens, the store and its insurance company should be held responsible.

All New Yorkers who are hurt in a grocery store accident should take a moment to call the legal professionals at Leav & Steinberg to learn more about how the law applies in your case.

Bronx Students, Department of Education Staff, and Others Who Were Around The Bronx New School (P.S. 51X) Exposed to Toxic Chemical

November 23, 2011

A toxic chemical, TCE (trichloroethylene), was found at excessive levels in the air inside and the soil around The Bronx New School (X051-also known as P.S. 51X). Testing for the chemical was performed in July 2011 and the following letter, dated August 29, 2011, was sent to former families and staff who may have been present at this school at 3200 Jerome Avenue, Bronx, New York:


TCE has been linked to a plethora of problems with those who were exposed, including but not limited to: headache, dizziness, blurred vision, confusion, fatigue, nausea, unconsciousness, respiratory and circulatory depression and irritation, cardiac dysfunction, cancer of the kidney, liver, and esophagus, non-Hodgkin's lymphoma, adverse effects on female reproductive system and fetal development, and even death.

The website listed in the letter includes links to the July testing report, a TCE fact sheet, information on the new location for the school, and an August indoor air quality report for the new building, among other things.

If you think you were exposed to TCE, you should consider a medical examination with your physician. Keep in mind that there are pre-conditions and time limitations for filing a lawsuit against a public authority, such as the Department of Education. A failure to abide by these restrictions may result in a complete bar to your compensation for personal injuries sustained as a result of TCE exposure.

By Kathleen Beatty

Going Where There is no Liability

September 28, 2011

Where is there no liability (on the part of the premise owner or operator)? Some facilities require patrons to sign waiver clauses or exculpatory clauses before partaking in the activities they offer. Whether these clauses will apply is fact dependent.

The General Obligations Law section 5-326 explicitly voids certain exculpatory clauses. It specifically names "pools, gymnasiums, places of public amusement or recreation" and also "similar establishments". Here is the wording of the statute:

"Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable."

As can be seen, there is ambiguity. What qualifies as a place of public amusement or recreation and what qualifies as a similar establishment? What satisfies the fee requirement? What if the plaintiff fails to provide evidence of payment of a fee for admission to, or use of, the facilities? Then is the use in connected with or collateral to a fee for admission so as to implement the applicability of the statute? Will a facility of "instruction" (a driving school, a scuba lesson facility, a horseback riding instruction facility) be held by a court to be within the ambit of the statute? What if the facility has characteristics of both amusement and instruction? Who is a user?

The next best thing for a gym, when it cannot exculpate itself from personal injury claims, is to add a forum selection clause and a jury waiver clause to the contract. A forum selection clause allows the gym to transfer all personal injury claims to the venue that they perceive will be the most favorable to them and will compensate the injured party the least. Here is a provision from a New York gym membership agreement:

"...4.5 Governing Law; Jurisdiction. These terms and conditions shall be governed in all respects by the substantive laws of the state in which the cause of action arises, without regard for conflict of law principles of such state. With respect to personal jurisdiction, you hereby irrevocably submit to personal jurisdiction in any action brought in any court, federal or state having subject matter jurisdiction arising under this contract within the location set forth below, and you hereby waive, to the fullest extent permitted by law, the defense of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any action. You hereby waive your right to a trial by jury...."

New York Courts have upheld these provisions, even when the gym member did not read the provision and/or did not intend to enter into this agreement. As for where your case will be transferred pursuant to this gym agreement (State of Where Cause of Action Arises-Venue/Jurisdiction):

  • Connecticut-Fairfield County, CT
  • District of Columbia-District of Columbia, DC
  • Maryland-Montgomery County, MD
  • Massachusetts-Worcester County, MA
  • New Jersey-Bergen County, NJ
  • New York-County of Westchester, NY
  • Pennsylvania-Bucks County, PA
  • Rhode Island-Providence, PA
  • Virginia-Fairfax County, VA
  • For baseball games, no signature is required, according to the back of the ticket. By using the ticket, it states, you are agreeing to the terms. There are provisions agreeing (for you) that by using the ticket, you will not transmit (or aid in transmitting) any information about or related activities by photo, video, audio, etc.; that your name, image, likeness, voice, portrait, and picture may be used in broadcast "for all purposes", as well as for advertising and promotion without written consent of the event operator. With regard to personal injury, here is an excerpt from the back of a ticket to a New York baseball game held this season. The font on the actual ticket is probably 6 point, but you can read it here in 12:

    "WARNING- The ticketholder assumes all risk, danger and injury incidental to the game of baseball or other event and all warm-ups, practices, competitions, entertainment and promotions associated therewith, at all locations in and around the ballpark and surrounding areas and parking lots, whether occurring prior to, during or subsequent to the playing of the game or other event, including (but not limited to) the danger of thrown bats, fragments thereof, and thrown, propelled or batted balls and other objects, and agrees that no persons or entities (including but not limited to [names of entities omitted] and their member Clubs, management of the Clubs, the City of New York, and their respective agents, agencies, owners, officers, affiliates and employees) are liable for any injuries, death, or loss of property resulting from such causes, and releases and holds harmless all such persons and entities..."

    The parking pass does not appear to deal with personal injury, but does mention property damage:

    "...4. The [names of entities omitted] are not responsible for, and assume no liability arising from fire, theft, damage to, or loss of the vehicle or any article therein while on the ballpark parking lots..."

    Likewise, here is an excerpt from the back of a ticket to a New York football game that was held this season (albeit in New Jersey). The font on the ticket is slightly larger than on the baseball ticket, and may actually be as large as 7 point:

    "...3. Ticket holder assumes all risks incident to the game or related travel and events, including the risk of lost, stolen or damaged property or personal injury..."

    It is not always feasible to avoid these waivers. Whether a waiver will apply will depend on the unique facts surrounding the waiver and the injury, among other things. When there is no written waiver, the doctrine of assumption of the risk may apply and may preclude liability on the part of the owner or operator of the premises. If there is a written waiver, it may be void pursuant to the statute or on other grounds. For those who currently have a personal injury claim, whether in suit or not, always contact your attorney before signing any kind of waiver. Even if you are told by the owner or operator of the premises that the waiver does not apply to your personal injury claim, or the waiver is being signed as a result of a seemingly irrelevant claim (i.e. a housing claim), always consult your attorney first. A failure to do so could result in the forfeiture of your ability to recover compensation for your injury.

    By Kathleen Beatty

    National Football League and Sports in New York, Part 2

    February 10, 2011

    This is the second part of a series of entries. The first part can be accessed here

    What if you are not NFL material but become injured while playing sports and want to recover money for your injuries? In most cases there will likely be no issue with fraudulent concealment, workers' compensation, and collective bargaining. Aside from that, the rules are the same. The assumption of the risk doctrine applies to a range of physical activities from children playing catch to little league teams, school athletic activities, and professional sports activities. In New York, the assumption of the risk doctrine has been applied to virtually every sport, including baseball, softball, football, basketball, tennis, soccer, hockey, golf, skiing, horse racing, track and field events, wrestling, and the martial arts.

    The determinative queries on liability are whether the risk that resulted in the injury was the type inherently associated with the sport in question and whether the risk was obvious to the participant but he or she nevertheless opted to assume the risk by participating. The participant's experience with the sport in question will also come into play, but some risks have been found by New York Courts to be obvious to even the most novice of players. The defendant's duty is limited to not concealing or increasing the inherent and assumed risks and not engaging in reckless or intentional conduct to subject participants to risks. "Participation" and "sports" have been loosely interpreted by the courts and applied to people of all ages. Thus, one who is a mere spectator may be subject to the rules detailed above.

    For purposes of illustration, let's use golf. In one case last December, the Appellate Division of the Second Department determined that a plaintiff who slipped and fell when he descended a staircase leading from the cart path to the eleventh tee box on a golf course assumed a risk that was inherently associated with golf. His case was dismissed. Similarly, the New York Court of Appeals dismissed the case of a doctor who was blinded in one eye by a fellow golfer's ball while playing on a nine-hole Long Island course in October 2002. The court found that the fellow golfer's failure to yell in advance of his errant shot was not intentional or reckless conduct and that "being hit without warning by a 'shanked' shot while one searches for one's own ball -- reflects a commonly appreciated risk of golf ".

    On the other hand, another golfer sued when she fell on a pile of approximately thirty golf balls that were gathered together and concealed by grass clippings and leaves in Rockland County, New York. The court denied the defendant's summary judgment motion, finding that it failed to show that tripping on a gathered and accumulated cluster of golf balls was an inherent risk of the game of golf and not a unique and dangerous condition-an aberration-beyond the usual dangers that are inherent in the sport. As can be seen from these three golf examples, whether a lawsuit will be successful for sports related injuries is largely sui generis, or dependent on the facts of each case.

    By Kathleen E. Beatty

    This entry addresses general matters and should not be relied on by readers or considered legal advice.

    National Football League and Sports in New York, Part 1

    February 7, 2011

    Football season is winding down, but the National Football League should soon be winding up for two class action lawsuits that are purportedly being formulated against it. Continued and increasingly in depth research on football related brain injuries has spawned potential legal claims that have the ability to wreak havoc on the now over ninety year old organization.

    Seventeen years ago, in 1994, the NFL medical committee on concussions was formed. In the last several years, report after report has surfaced detailing clinical research findings of severe and permanent cognitive harm associated with playing football. But these reports were not from the NFL. Rather, the NFL has put out conflicting statements on the subject and only recently reported similar findings to what reputable researchers have been warning about for years. In 2007 the NFL circulated a pamphlet to players stating, in essence, that a few concussions would not result in permanent brain injury, so long as proper medical treatment was received. Last summer, however, the NFL finally circulated a poster, meant to be hung in locker rooms, revealing that concussions may not be so benign after all (click the image to the right to make larger). jp-concussion-popup.jpg Indeed, various studies have found that early dementia, Alzheimer's disease, Lou Gehrig's disease, depression, chronic traumatic encephalopathy, and memory problems, among other things, are all associated with head injury.

    Some recent players of the league are expected to allege that the NFL was aware of the long term risks of playing football and chose to suppress them, or that the NFL reasonably should have known of the long term risks. The root of these claims is that the NFL's failure to disclose what they knew made an already dangerous sport even more dangerous and that the NFL made no attempt to lessen the danger. Such claims could result in awards to injured players for economic loss, pain and suffering, and in the case of a fraudulent concealment claim, punitive damages. Wives, and in some states, children of the injured players, could also recover monetary damages if the injured player's lawsuit is successful.

    Continue reading "National Football League and Sports in New York, Part 1" »

    New York Creates a Reporting System for Accidents and Dangerous Conditions

    January 3, 2011

    As a New York premises liability attorney, I am all too familiar with the following scenario: It is late at night, you are walking home from work. You trip and fall due to a dangerous and defective sidewalk and fall face forward with your hands out. You land hard on your right arm. First reaction is not to lie there until someone comes to find and help you. The first logical thing most would do is get up and 1) try and see if you are bleeding and if not 2) continue home as its late, dark and likely no one around. At that point you may think you can walk it off or that the pain will simply go away. One may feel shaken or embarrassed and will leave the scene without making a report or advising any responsible party of the accident. Hours or even a few days later one may realize the severity of the injury which may ultimately require significant medical care.

    Though leaving the scene is a normal reaction, the lack of documenting your presence at the scene of the accident, has become a potent defense for the responsible party. They will often say that the injured party's claim that they fell where and when they say they did should be rejected since there was no affirmative proof that they reported the accident as soon as it happened.

    The City of New York has set up a telephone switchboard system in order to report accidents or dangerous conditions even after one has been injured and left the scene. You can simply dial 311or find out more information on the City of New York 311 website. The service provided will take down the date, time, location and specifics of the accident and will provide a complaint number which will be kept on file with the City of New York.

    Though still circumstantial evidence and not as good a reporting the accident right when it happens, this reporting is a "real life" way of advising someone other than your loved ones that you have been injured as a result of a dangerous condition.

    At Leav & Steinberg, we have often been faced with this "lack of reporting" defense and have on several occasions been able to sway the juries that the 311 reporting by the client was further evidence that they are being forthright and honest about their claim.

    By Edward A. Steinberg

    New York Hotels Affected by Safety Recall of all Drop-Side Cribs

    December 16, 2010

    The New York products liability attorneys at our firm are always monitoring the changes in laws affecting those who are injured. We follow the changes in many areas including those that affect the safety of our children. At home and while traveling, nothing comes before ensuring that our young children are protected. For many years, drop-side cribs were very popular as they allowed the parent or guardian to easily lift the child from the crib.

    However, earlier in the year, Graco as well as other manufacturers recalled these cribs due to several deaths that occurred when the infants were stuck in the movable side of the crib.

    Today the Consumer Protection Safety Commission (CPSC) has taken a closer look at the history and dangers and finally decided to ban the sale of drop-side cribs permanently. According to the CPSC records, 32 infants have died as a result of this danger in the past ten year period. 14 additional deaths are suspected as well. The unanimous decision of the CPSC states that it will be illegal to manufacture, sell or resale the cribs. Of additional importance towards the safety while traveling and at hotels or resorts, the CPSC has set a two year time frame for these businesses to stop using them. So though, it will be illegal after 2012, we strongly recommend that all parents find suitable and safe cribs when traveling with their young children and if a drop side crib is all that is available, please make sure its not from the various brand of millions of drop-side cribs recalled over the past few years.

    The responsibility in New York for premises liability is based upon the an obligation and duty of the owners of property to maintain their premises and their furniture in a reasonably safe manner.

    Leav & Steinberg, LLP recently represented a woman who was seriously injured while staying at a New York Hotel when defective carpet caused the nail tacking to come up puncturing her foot and causing permanent injuries.


    Drop-side cribs finally outlawed, Jennifer LaRue Huget,, December 15, 2010

    By Edward A. Steinberg