New York Accident Lawyer Blog

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:

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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

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):

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 E. Beatty

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.

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). 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" »

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

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.

Resources:

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

By Edward A. Steinberg