Articles Posted in Premises Liability

Sometime ago I blogged about how the omnipresence of cell phones with cameras has been a game-changer for many Central New York and Syracuse accident victims. The evidence of the at-fault person’s or corporation’s negligence can be “snapped” right at the scene with the cell phone camera. This is important because often the evidence disappears within hours, for example, where you slip and fall on an unplowed, unsalted walkway in a Central New York winter.

Another game-changer for Syracuse and Central New York personal injury cases (and for such cases everywhere) is the omnipresence of surveillance videos. Now almost all major stores, including supermarkets, have surveillance cameras filming in almost every nook and cranny.

How does this help New York personal injury attorneys prove liability in personal injury lawsuits? Here’s an example. A woman slips and falls in the produce section of a major Syracuse supermarket. Turns out she slipped on a piece of tomato.

Imagine you are just kicking back on your porch enjoying this great spring weather in Syracuse, New York, hanging with some buddies, maybe having a beer when —- BANG — you wake up in pain, lying on the ground below.

This is what happened Saturday at an apartment on the corner of Lynwood Avenue and James Street in Syracuse. The porch just collapsed with no warning, dropping the three people sitting on it to the ground below.

Central New York porch, balcony or deck collapse lawsuits are not as uncommon as you may think. The Auburn New York personal injury law office of Michaels Bersani Kalabanka has handled several such cases.

You are out for a stroll on a nice, but windy, spring day and suddenly, as you walk under a tree, a branch dislodges and falls on you, seriously injuring you. Is anyone liable for your injuries? Can you bring a New York personal injury lawsuit for injuries caused by a falling tree branch? After all, wasn’t this a “natural” occurrence? No one is liable for that, right?!

The answer is (as is so often the case in New York personal injury law) “it depends”. The owner of the property, or whoever is in control of the property, where the tree is growing MAY be liable for the tree branch accident if they “knew or should have known” that the tree was dead, rotten, or in poor condition. If an owner, or someone who controls the property, fails to remove a decaying, rotting or dead tree, or branches, and the tree or a branch falls and injures someone, or falls on a roadway and causes a car accident, he can be held liable.

Here’s a recent example of a falling-tree branch injury that could, or could not, become a valid case, depending on the circumstances: A Brooklyn man was recently killed in Central Park when he was struck by a falling tree branch that snapped off under the weight of wet snow. As reported in the New York Times, the tree branch weighed over 100 pounds and struck him directly on the head. Could the City be held liable for this tragedy? It looks like a tough case. The New York Times reports that branches were falling down all across the City because of a heavy build-up of wet snow. Maybe even healthy branches were giving way under the weight of the snow. If the tree showed no obvious signs of decay, rot or death, then the City is most likely not liable.

Today a sweet elderly lady met with me in Geneva, New York, with what she described as a “trip and fall” case. I listened sympathetically to her story of how she was hurt, and then told her could not take her case. Why?

Let’s start with what she tripped and fell on. She was on her way out of a local supermarket with her adult son when she suddenly tipped on . . . well, she really did not know what it was. Her son, who had been with her, said that when he looked down after her fall, there was a floor mat that was “flipped up at the edge”. He deduced that his mother must have tripped over the flipped up edge of the mat. The store should have been more careful with that mat, right?

There are two problems with that:

The Associated Press and the Daily News both reported last week that an injured restaurant patron, Raina Kumra, filed a New York personal injury lawsuit against the White Slab Palace restaurant in lower Manhattan after a stuffed moose head fell from its wall onto her head. The restaurant first opened its doors for business only last February. Her lawsuit claims damages consisting of a concussion, loss of cognitive skills, chronic neck pain, dizzy spells, fatigue and anxiety. The moose head weighed 150 pounds and sported 3-foot-wide antlers.

When this Central New York personal injury lawyer read this story, my first thought was in Latin: “Res ipsa loquitur”. No, I don’t speak Latin. This is a legal doctrine, taught to all first year law students, which allows an injured plaintiff to use circumstantial evidence to prove negligence. In Latin, the phrase means “the thing speaks for itself.” In order to invoke the doctrine, the injured plaintiff has to show that the injury-producing event normally would not happen in the absence of some negligence. (Here, does a moose head just fall from a wall unless someone failed to secure it properly?). The injured person also has to show that the object that caused the injury (here, a moose head) was in the exclusive control of the defendant. The plaintiff must sufficiently eliminate other possible causes, including the conduct of the plaintiff herself or of other parties who might have tampered with the object.

The theory is often used in falling object cases. We at Michaels Bersani Kalabanka have brought several claims based on the theory of “resi ipsa loquitur”, mostly when merchandise falls from a shelf onto a shopper at big-box stores such as Wal-Mart, but also in our New York medical malpractice lawsuits where a doctor leaves a foreign object, such as a surgical sponge, inside the patient.