Articles Posted in Elevator Accidents

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Leav & Steinberg, LLP is pleased to report the resolution of a recent case.  Our client, after being unhappy with her first attorney, retained us to represent her.  She was employed as a Visiting Nurse and would have to travel to patient’s homes for consultation and evaluation for home nursing services.  On the date of accident, she was inside a building in the Bronx with a translator and security guard.   As the elevator went up, it suddenly stopped, and according to the client, then dropped and suddenly stopped short.   While her body was jostled about, she admitted that she did not fall to the ground.

She reported the accident to the building who in turn claim they checked it along with an elevator service company and the elevator was found to be working in normal order.   Our client, began feeling severe pain in her knee and back.   She was unable to return to work for a period of time and ultimately underwent surgery for a torn meniscus in the knee.  Furthermore, to treat her spine injury which involved her discs, she underwent a radiofrequency nerve ablation.  This procedure entails having a needle placed below the skin and with heat, the nerve is burned at the point it is impinged by the disc.  While the nerve will regenerate, the hope is that it will regenerate just slightly off the disc and relieve some of the pressure on the nerve.

When first retained, it became clear that our office would need to prove a history of problems with the elevator.  As our client, did not live in the building and did not know anyone there, partner Daniela Henriques, took the lead and began conducting an exhaustive search of the DOB (Department of Buildings).  Through her research and subpeonas we discovered a history of problems with the subject elevator.  This was the first part of her effort to prove liability and lock the defendant in to being responsible.   Under NY Law a party must exchange all work records, maintenance records and repair records.  Here the building owner, claimed that due to a flood, all records were destroyed and then the building was sold so any attempt at searching records would not reveal anything.  While this may sound good, it is the plaintiff’s burden to prove the defendant knew about the dangers with the elevator and took insufficient steps to remedy.  The fear is always that at trial or just before, suddenly the defendant will reveal records showing that the elevator was working and a recent, prior to accident, inspection revealed no problems.    Daniela Henriques, as partner and in charge of our Motion/Appeal department, she moved for an Order precluding the defendant from ever offering any evidence or testifying to anything regarding their reasonable maintenance of the elevator.   This motion was granted and put us in a position of strength.

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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.

Evidence

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In New York, injured people can recover for the conscious pain and suffering and loss of enjoyment of life that they suffer as a result of injuries they sustained in an accident. Conscious pain and suffering, according to the Pattern Jury Instructions (PJI) 2:280, is “pain and suffering of which there was some level of awareness by the plaintiff”. Loss of enjoyment of life, according to the PJI, includes the “loss of the ability to perform daily tasks, to participate in the activities which were a part of the person’s life before the injury, and to experience the pleasures of life”. The threshold of “some level of awareness” in order to recover under the law had to be set by the Court of Appeals for purposes of simplicity.

When a person brings a personal injury case, he or she waives the physician-patient privilege as to mental or physical injuries or conditions, but only as to those that are affirmatively put in issue by him or her in the lawsuit. The party seeking the disclosure of mental or physical health information (defense counsel) bears the burden of making an evidentiary showing that the condition is in controversy and discovery may proceed under the statute. Defense counsel will ordinarily not be able to show entitlement to discovery of a medical file pertaining to treatment for an injury to the cervical spine in 2008 when the plaintiff is making a claim for a 2011 foot fracture.

What if a plaintiff claims that she suffers from anxiety as a result of a fractured foot that occurred in a 2011 accident? Does it render her complete file of psychiatric records discoverable? Or what if she claims that she lost the enjoyment of her life as a result of the fractured foot she sustained in the 2011 accident? Does this claim render her entire physical and mental medical file discoverable?
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