I've been rather busy work-wise, but didn't want to let this one slip through the cracks like so many other potential posts. Because how can you let a new theory of liability on a common fact pattern, apparently never tested before in New York, just slip away?

The fact pattern is this: A self-service store (supermarket, Wal-Mart, etc.) with refuse on the floor. Patron slips, falls and is injured on the refuse. A fairly typical type of personal injury case.

To hold the market accountable, we've long been taught that notice of that banana peel sitting there was needed to prove liability. This can be done either by showing that the store had actual notice of the debris (someone complained or an employee saw it), or that the store should have known it was there (constructive notice). Constructive notice might come up if the injured person points out that the banana peel was black, for instance, in trying to show it had been there for a long time. Because we've been taught that you can hold a store liable if it knew (or should have known) of the mess.

But wait! As per Lou and the Law, New York counsel may be overlooking a theory of liability that has been accepted in 20 states, yet there aren't any citations in New York state courts for the attempt to use that theory. It isn't even discussed, much less analyzed. Lou refers to the Mode of Operation Rule. According to Lou:

The rule provides that If a proprietor could reasonably anticipate a hazard could arise based on the manner in which his business regularly operates, a plaintiff does not have to prove actual or constructive notice of the hazard....

When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk...

Lou, who defended cases for decades as a trial lawyer with Liberty Mutual, has much more at this link: When will New York adopt the Mode of Operation Rule?

Labels: Slip and Fall

There is the perception amongst many that any injury gives rise to a legitimate lawsuit. Not so. Here are two dismissals on Tuesday from the Appellate Division, First Department of personal injury cases, with relatively routine fact patterns.

First up, a slip and fall on a waxy floor. In a very brief decision, the court wrote in a Purcell v. York Building Maintenance Corp.:

Plaintiff's claim that appellant created the slippery condition of the floor on which plaintiff slipped by excessive waxing rests only on her observation that the floor was "shiny." Such evidence, without more, does not permit an inference of negligent waxing....Nor may such inference be made on the basis of plaintiff's testimony that a carpet and a yellow "caution" or "slippery" sign were placed on the floor shortly after her fall.

Next up, this plaintiff was injured when she tripped on garbage at a street fair. In Torres v. Washington Heights Business Improvement District Management Association, the court chucked the case, writing:

Although defendant, as a licensee who obtained permission to use the designated streets to sponsor and host the fair, owed a duty of care to maintain the area in a reasonably safe condition, the evidence demonstrates that defendant established its entitlement to summary judgment by showing that it had no constructive notice of the defective condition. The general awareness of litter in the streets is insufficient to raise a triable issue as to whether defendant had constructive notice of the plastic bag that caused plaintiff's fall.

Both cases involve the issue of notice. If defendants aren't aware of defects then they don't have the chance to fix them. (In the first case, that assumes the floor was even overly waxy to begin with.) That notice has to be actual or constructive (which means proving the defect was there so long that they should have known.)

The time to figure out if you have notice of the defect is (hopefully) not during depositions, but during intake and investigation. If you can't establish it without discovery from the defendant, the issue becomes that much harder. And if you can't establish it at all, expect your case to be heading for dismisssal.

Labels: Slip and Fall

A couple of links today to point you elsewhere, because I see no need to re-invent the wheel on some basics for the practitioner.

First is an intake questionnaire for a slip and fall case [10/5/09: That page, from a company called Beacon Network Investigations, with a list of various questions, has now been altered] to get the basic information you need. When I see one of these, I always cross-check it against my own to see if I can improve the one I use.

Note that it is not comprehensive. It's missing, for example. the date/time/place. And every intake sheet in a personal injury case should ask if the client has filed for bankruptcy or intends to. (Because if they do, any potential suit belongs to the bankruptcy trustee, not the injured person.). Nevertheless, it's always good to see if one's own intake forms can be improved or refreshed by looking at others.

Next up is an article on snow and ice cases written by Scott Kreppein for a local lawyer's quarterly that he has reprinted. Cases regarding injuries from falls on snow and ice get tossed out by the courts all the time (see, for example, Sip and Fall on Ice/Slush - Case Dismissed) because a storm is still in progress or for other reasons. It's important to know this stuff before the client interview, so that the attorney can do a proper analyses and not find him or herself with an unhappy client and unhappy bank account a year or two later. A good post to copy and save, and one that includes additional practitioner tips.

Labels: Slip and Fall

The Yale Club has Answered Robert Bork's slip and fall personal injury case. Bork --- the former SCOTUS nominee, conservative favorite and tort "reformer" -- had sued the Yale Club for causing him to fall as he attempted to step up to the dais to give remarks. His federal suit, started in the Southern District of New York for "in excess of $1,000,000" plus punitive damages, has been met with widespread ridicule, as noted at the bottom of the post linked above. The then 79-year old former jurist claimed there should have been a step and/or handrail for him.

The Answer is here: YaleClubAnswer.pdf.

The Amended Complaint that it responds to is here:Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

With Yale now answering, Judge Bork is unable to voluntarily dismiss his case under FRCP 41 without prejudice and re-start it in New York Supreme Court, a more favorable venue as I discussed in What Should Bork Do Now?

To no great surprise, the Yale Club denies the allegations of negligence, specifically blames Judge Bork for the fall, claims the risks incident to "the situation" were open and obvious, and asserts that he has already received some remuneration for his economic loss.

Yale Club counsel is Eric Schnittman, who does not appear to have a website or much in the way of available information. New York's court database lists him as a 1983 graduate of Fordham Law School.

The matter has been assigned to Judge Naomi Buchwald, appointed in 1999 by Pres. Clinton.


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Bork Trip And Fall Suit, Personal Injury, Slip and Fall

As you likely know, Judge Robert Bork filed a New York personal injury lawsuit last week in federal court here. Due to his prior advocacy for tort reform, he has been lampooned, mocked and otherwise pilloried for having engaged in excessive claims over what appears to be a routine trip-and-fall action at the Yale Club.

But this post is not about mockery or political criticism. The issue today is, given the error-riddled Complaint that has contributed to the scorn, what should he do next? Since this is, after all, the New York Personal Injury Law Blog, I figure I'm the guy to take a shot at this.

So here are the top 10 things Judge Bork should consider:

10. Voluntarily dismiss the federal court complaint, as of right, before the Yale Club answers (FRCP 41). Once defendant answers, you need permission to dismiss and they may not be so quick to agree without exacting something from you.

9. Re-start in New York State Supreme Court. State court actions are cheaper because we don't have expert depositions and don't generally depose treating physicians. (In this case, expect for each side one or two doctors depending on your actual ailments, and a buildings inspector for code violations.) If the expense of litigation has been one of your court reform mantras, this is a good excuse to re-start here, since there are fewer legal hours and less cold, hard cash involved. Since you will be financially accountable for the disbursements (if a standard retainer agreement were entered into), this is particularly important for you as your attorneys would be repaid the money they laid out for you from the gross recovery. (With a local defendant, they may not be able to remove back to federal court, notwithstanding diversity.)

8. Dump the punitive damages claim. You know better than that. (And, by the way, it is not a separate cause of action, as your attorneys framed it.)

7. Dump the claim for attorneys fees. They are not allowed in New York.

6. Dump the claim for pre-judgment interest. It is not allowed in New York.

5. Make sure the new complaint explicitly alleges the Yale Club owns the premises. You didn't do it the first time. If they are going to deny it, you want to know now.

4. Make sure the new complaint explicitly alleges the Yale Club controls and operates the premises. You failed to do this the first time. If the Yale Club contracted operations to a 3rd party, or allowed the New Criterion magazine as a sponsor to undertake these activities, you want to know now. Make sure each fact is separately pleaded so you know exactly what position the Yale Club is taking with respect to who operated and controlled this event and this room when they answer the Complaint with admissions and denials.

3. Make sure the new complaint specifically claims the New Criterion did not operate or control this event in any way, or sue them if you think they did. This is important since you alleged they were the "host." (In paragraph 7, you called both Yale and New Criterion the "host.") Whatever you do, just don't leave this vague as you did the first time. It may not be the Yale Club that did the actual set-up for the dais. Do you want to wait for the statute of limitations to expire only to see the Yale Club point at the empty chair?

2. Do not make a claim for future lost speaking fees, unless they are huge. If you do, your prior writings and statements on tort reform may become relevant to show that your stock as a speaker to conservative groups has been devalued as a result of the appearance of hypocrisy in filing a suit with some meritless claims thrown in to the mix. The man-on-the-street may well remember you as a SCOTUS nominee, but they surely don't know of what you have written. You don't want them to know either, because some of the claims in your federal complaint can't be justified under any legal theory. And that makes you, as a former big-shot judge, look bad. And you are not in a position to simply blame your lawyers for having made so many errors.

1. The New York State Trial Lawyers Association has over 4,500 lawyers. Hire someone that knows what they are doing with this area of law, not a white collar criminal defense or securities lawyer that can't draft a simple trip and fall complaint. And remember also that you don't need a BigLaw "litigator" that probably hasn't tried a case in years. And you do need someone that knows how to move a case efficiently.

BigLaw doesn't mean best law.

Addendum 6/29/07 -- Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Bork Trip And Fall Suit, Personal Injury, Slip and Fall

Former Supreme Court nominee Robert Bork has sued the Yale Club for an amount "in excess of $1,000,000," plus punitive damages, as a result of a trip and fall accident on June 6, 2006. The Complaint is here via the WSJ. The accident happened while he was climbing to the dais for a speech, and there were no steps or handrail for the 79-year old Bork to hold on to.

The main injury he claims to have suffered were a hematoma in the leg that required surgery and months of rehabilitation. The New York Times notes that he proceeded to deliver the speech after he had fallen.

My thoughts on the Complaint:

1. This is a routine New York personal injury case. There is nothing particularly exceptional about it from the Complaint other than the plaintiff, a noted conservative jurist who has been part of the American Enterprise Institute, which engages in tort "reform" activities.
2. Since no hospitalization is mentioned, I assume that the surgery for the hematoma was out-patient and may have been a simple drainage of some kind. Perhaps the med-bloggers who visit here can offer up a bit more on what kind of surgery was likely;
3. The Complaint doesn't even come close to explaining why punitive damages would be warranted in such a routine negligence matter. My gut reaction is that it is frivolous.
   
4. The Complaint asked for attorneys fees. Why? You can't get them in New York for a standard personal injury claim.
5. The Complaint asks for pre-judgment interest. Why? You can't get that here either. Sad, but true. Interest runs from the date of the judgment not from the date of the accident, thereby giving insurance companies a reason to delay litigation as long as possible. Perhaps Judge Bork wants to come with me the next time I lobby the legislature to amend the law to include pre-judgment interest?
6. The Complaint asks for an amount "in excess of $1,000,000" (not merely $1M, but in excess of). Where are the damages for making such a huge demand?
   

Ted Frank at Overlawyered has already jumped on this case and called it "embarrassingly silly," noting the defenses of assumption of risk and a condition that was "open and obvious." He adds in the comments, interestingly, that "it's conceivable that there might be an [Americans with Disabilities Act] claim of some sort."

A quote from Bork, from Bloomberg news:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the ``expensive, capricious and unpredictable'' civil justice system in the U.S.

``Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,'' they wrote.

I suspect that the folks at TortDeform will now add Bork to their roster of "Do as I say, not as I do" hypocrites of tort reform that suddenly changed their minds when it was no longer someone else's injuries at stake.

Finally, the Complaint is signed by Bork's counsel Randy Mastro, of Gibson Dunn & Crutcher. Mastro's bio asserts that he "is a litigation partner who handles both civil and white collar criminal cases." Also listed is Brian Lutz, who does "securities litigation, corporate control contests, antitrust matters (both civil and criminal), insurance/reinsurance coverage disputes, and white collar defense." This is a white shoe firm with a dozen offices around the world. They apparently have lots of BigLaw experience. There is no personal injury law experience noted for either.

The case is Bork v. Yale Club, 07-cv-4826, U.S. District Court, Southern District of New York (Manhattan)

Addendum:

• More thoughts on choosing the right counsel from Carolyn Elefant: What Judge Bork's Choice of PI Counsel Says About Lawyer Rankings like Avvo and Marketing;
• Robert Bork, Jr. defends his father's suit at Overlawyered;
• This post now appears at Volokh, where I added the following comments in response to another:

  This was not a standard complaint. If it were, his counsel would have explicitly alleged that the Yale Club owned, operated and controlled the premises. (It can still be inferred, but it was poor drafting.)
  
  The complaint is filled with specifics about the incident (usually not done locally, it is usually very general), also meaning it is not boilerplate.
  
  They make multiple, unrelated , allegations in a single paragraph, making it impossible to admit or deny any of the facts in the answer (thereby destroying any benefit to putting in specifics) . And while not fatal, it is against the rules.
  
  It is certainly not boilerplate to allege punitive damages in a trip and fall case unless there is something particularly outrageous. And it isn't a separate cause of action for punitives as they have alleged.
  
  And it is certainly not boilerplate to ask for things such as pre-judgment interest and attorneys' fees in such an action, when they are clearly not allowed.
  
  Claiming something is boilerplate only works for a rookie lawyer who didn't know better. Not for a former SCOTUS nominee with counsel from a BigLaw firm. (What would Bork say if he were on the bench and presented with such an excuse?)
  
  The reality is that there are thousands of solo and small firm practitioners who know this stuff cold, and Bork picked counsel with a lack of experience. That's what I glean from the Complaint, and is the most likely reason frivolous claims appear.

A sampling of some other commentary:

• Tort reformer Robert Bork sues Yale Club (Think Progress)
  
• Bork: Tort Reform for Thee But Not for Me (Booman Tribune)
• Milking It (The Moderate Voice)
• Leading Conservative Activist Seeks Punitive Damages (American Constitution Society)
• The Urgent Need for Tort Reform (Grasping Reality With Both Hands)
• Lawsuit of the Day: Robert Bork Hearts Plaintiffs? (Above The Law)
• Bork and the Barbary Pirates (Volokh - David Bernstein)
• The Fall of Bork (Reason Magazine - Brian Doherty)
• Tort Reform Bork sues for 1 million dollars (Crooks and Liars)
• Is Bork's Trip and Fall a Misstep? (New York Times Opinionater - Tobin Harshaw)
• Groucho & Javert (Slacktivist)
• Legal Funnies (Alas, A Blog)
• Advocate for tort reform sues for over $1M (Bring it on!)
• Robert Bork, tort-reform advocate, files slip-and-fall lawsuit (The Carpetbagger Report)
• When Tort Reformers Slip And Fall (Mother Jones)
  

Addendum 6/11/07 - I have a new post on the subject: What Should Bork Do Now?

Addendum 6/13/07 - I searched TownHall, a site with dozens of conservative commentators, to add additional viewpoints to this collection, but could find no reference whatsoever to the lawsuit.

Addendum 6/14/07 - New comments after New York Times weighs in with editorial: Bork's New York Personal Injury Case and The New York Times

Addendum 6/29/07 -- Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

Addendum 7/17/07 -- Bork Attorney Randy Mastro is picked by Rudy Giuliani to be on Justice Advisory Committee


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Bork Trip And Fall Suit, Frivolous Claims, Interesting Cases in the News, Personal Injury, Slip and Fall

Trip and fall cases are interesting because of two competing defenses:

1. That the defect was so small as to be "trivial"; and
2. That the defect was so large as to be "open and obvious."

In this case, the defendant prevails on the first of the two defenses:

The plaintiff asserts that there was a height differential of 5/8 of an inch between the two surfaces, and contends that this height differential caused the accident.

"[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury." However, a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In this case, the defendants made a prima facie showing, through the plaintiff's testimony and the photographs identified by her as accurately depicting the condition of the curb cut at the time of the accident, that the alleged defect did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law. The evidence which the plaintiffs submitted in opposition to this showing failed to raise a triable issue of fact.

If a defendant does not prevail on one, a claimant should expect the defendant will then pursue the other.

The case is: Joseph v Villages at Huntington Home Owners Assn., Inc.

Labels: FAQ-Personal Injury, Personal Injury, Slip and Fall

This New York slip and fall case is one that should never have been taken by the attorney:

While attempting to disembark a bus owned and operated by the defendants, the plaintiff slipped on a step which she described as wet and slushy, and fell from the bus. It is undisputed that a heavy snow had fallen several days earlier and that passengers were tracking snow, slush, and water from the ground onto the bus.

In trying to establish liability against the bus company, however, the court ruled that:

under the weather conditions which [sic] existed at the time of the accident, it would be unreasonable to expect the defendants to constantly clean the floors of their buses.

My own feeling is that juries don't like such cases, and great care should be taken when selecting them. If a sidewalk trap has existed for years it is one thing, but sloppy/slushy conditions bring with it risks that are sometimes unreasonable to shift to another.

On the flip side, an interesting approach to the issue might have been to discuss the flooring of the steps, and the potential use of outdoor carpets or other materials to make the steps slip-resistant in adverse conditions (the way office buildings lay out the mats) but there was no such discussion in the record.

The case is McKenizie v. County of Westchester, from New York's Appellate Division, Second Department.

Labels: Personal Injury, Slip and Fall

New York City's Transit Authority was found liable yesterday by the Court of Appeals, for a trip and fall accident on subway stairs it neither owns nor controls.

A 4-1 majority of the high court adopted a 101-year old "Schlesinger rule" that imposes on common carriers a duty to provide safe ingress and egress on approaches that are "constantly and notoriously used."

The court wrote:

Where, as here, a stairwell or approach is primarily used as a means of access to and egress from the common carrier, that carrier has a duty to exercise reasonable care to see that such means of approach remain in a safe condition or, where appropriate, to take such precautions or give such warnings as would protect those using such area against unforeseen danger.

...

In the case before us, the evidence at trial was sufficient to establish that the stairway in question was used primarily as a means of access to and from the subway. Therefore, defendants had a duty to maintain the stairway or to warn patrons of any dangerous condition. So imperative is the duty to provide a safe means of access to and from the subway that such duty may not be delegated to another. Thus, even if the responsibility to maintain the stairway resides in another entity, defendants may not avoid their responsibility "to at least provide against injury to its passengers by erecting such barricades, or giving such warning, as [would] guard against accidents.

The decision in Bingham v. New York City Transit Authority is here.

Labels: Personal Injury, Slip and Fall

A Nassau County slip and fall case ran aground when the laywer-husband of the injuried plaintiff was found to be in violation of an ethical rule. The accident occurred in the parking lot of a restaurant. The husband had a loss of consortium claim and appeared pro se, and also sought to represent his wife.

It seems, however, that he was not only the husband but also a witness to the accident. While he could represent himself pro se, he could not represent his wife since that violates the lawyer-witness rule, DR 5-102 [1200.21]:

A lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client.

The attorney tried to get around this by saying that he was not employed as the attorney of record for his wife, that his wife was also pro se, and that he had a power of attorney to appear at conferences for her. The court rejected this rather creative argument.

A nice exposition on the law by Justice Lamarca in Nassau. The case is Smolensky v. T.G.I. Fridays.

Labels: Attorney Ethics, Personal Injury, Slip and Fall