Articles Posted in Auto Accident Injury

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An old woman, 95 years of age, is a patient at a certain Staten island hospital. On 9 June 1998, she became comatose, cyanotic and unresponsive after she became disconnected from her ventilator machine. An employee of the hospital heard the old woman’s room alarm sound but the alarm at the nurses’ station failed to sound. Hence, it could not be determined as to how long the old woman remained disconnected from the ventilator. Respirator assistance was then provided to the old woman by the medical staff of the hospital. Thereafter, she was immediately transferred back to the cardiac care unit, which is where she had been prior to the ventilator incident, and there she received intensive therapeutic care and massive blood transfusions. From 10 June 1998 through 11 June 1998, the consulting neurologist indicated in his progress notes that the old woman had a guarded prognosis and was not receptive to outside stimuli. From 12 June 1998 through 17 June 1998, the progress notes indicated that the old woman was improving. The old woman’s neurologist then noted that she was at baseline, neurologically stable. In other words, the old woman’s neurological condition returned to the state that it had been prior to the ventilator disconnection. Thereafter, the hospital took several remedial measures to prevent any future incidents of this type. The hospital’s Code 15 committee reviewed the old woman’s case to decide whether or not it warranted Code 15 treatment, which consists of reporting to the Agency for Health Care Administration or AHCA within fifteen days of the incident, but later voted against such Code 15 treatment, believing that since the old woman recovered to her neurological baseline, no brain damage or brain injury had occurred. Instead of filing the incident as a Code 15, the hospital reported the occurrence as an adverse incident in its Annual Report of Incidents.

Consequently, the AHCA filed an administrative complaint against the hospital and contends that the hospital violated the law by reason of their failure to report a hypoxic event that caused brain damage to a patient as a Code 15 occurrence.

Sometime in December 2000, a formal hearing was held. After that, the administrative Law Judge or ALJ concluded that the old woman did in fact suffer from a brain damage, a transient or temporary brain damage, and the hospital should have reported the incident as a Code 15; and recommended that AHCA had justification to levy a $5,000.00 administrative fine against the hospital.

The hospital now appeals the aforesaid order.

The first issue is whether or not the hospital was required to report the incident to the AHCA.
Under the law, the hospital, as a licensed hospital facility, is required to report to AHCA within fifteen days of occurrence, any adverse or untoward incident that results in a brain or spinal injury to a patient. The standard of review of an agency decision based upon an issue of law is whether the agency erroneously interpreted the law and, if so, whether a correct interpretation compels a particular action. An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference. However, a court need not defer to an agency’s construction or application of a statute if special agency expertise is not required, or if the agency’s interpretation conflicts with the plain and ordinary meaning of the statute. If the language of the statute is clear and unambiguous and conveys a clear and definite meaning, the statute should be given its plain meaning. When necessary, the plain and ordinary meaning of words in a statute can be ascertained by reference to a dictionary.

Here, the subject statute provides for the term “brain damage”, which exists under the list of every potential personal injury enumerated therein, separate and apart from any condition that results in a limitation of neurological, physical, or sensory function which continues after discharge from the facility. Thus, it is irrelevant under the injury or adverse or untoward incident, whether any brain damage in fact continues after discharge from the facility. Upon a reading of the subject statute, the words clearly mandate that whenever a brain or spinal injury to a patient result, it needs to be reported as a Code 15 occurrence. There is no word permanent before the word brain injury. In fact, the only term in the list of injuries enumerated, that the Legislature described as permanent, is that of disfigurement. No such other term modifies brain damage. Thus, since the Legislature did not modify the term brain damage with any word such as permanent or temporary, this intentional legislative omission cannot be lightly disregarded. The rule is, courts are not at liberty to add words to statutes that were not placed there by the Legislature. Thus, the Queens court finds that the plain meaning of the term is clear and unambiguous.

Moreover, under the Webster’s Third New International Dictionary, the word “damage” is defined as a loss due to injury; injury or harm to a person, property or reputation; while under the Black’s Law Dictionary, it is defined as a loss or injury to person or property. Obviously, this dictionary definition does not confine the term to only permanent injury. Thus, based upon the plain meaning of the subject statute, the court finds that brain damage can result even if a patient, such as the old woman, returns to a neurological baseline.

The second issue is whether or not the requirement of reporting any incident of brain damage to AHCA is indeed a logical interpretation of the applicable statute.

As a rule, once an enumerated incident occurs, a licensed facility must report to the agency within fifteen days. If a facility does not have to report an incident caused by a ventilator disconnection until the facility learns whether or not the incident is of a permanent nature, then in many cases it would be impossible for the facility to report to the agency within fifteen days.

Here, while the old woman did begin to return to a neurological baseline within three to four days, it is also quite possible that the old woman could have remained comatose for months before returning to baseline. If the court would rule that he hospital was not required to report the incident because the old woman later recovered, this outcome is not reasonable and would render the fifteen-day reporting requirement period dependent upon the length of the personal injury instead of its severity. Thus, the court finds that the hospital is certainly required to make the report. This interpretation of the subject statute renders a more logical outcome.

Lastly, the third issue is whether or not AHCA’s construction and interpretation of the term “brain damage” were vague and unconstitutional as applied to appellant, but AHCA argues that appellant waived this constitutional challenge by failing to raise this issue timely.
Under the rules, constitutional challenges can be raised for the first time on appeal. Administrative agencies lack the power to consider or determine constitutional issues. Courts have ruled that the administrative process cannot resolve a constitutional attack on a statute, rule or regulation; and that a party is not required to argue the facial constitutionality of a statute before an administrative agency because the agency lacks the power to declare a statute unconstitutional.

Here, since the order appealed from was decided by an administrative agency, the hospital can challenge the constitutionality of AHCA’s action for the first time in appeal. Nonetheless, the subject statute is clear and unambiguous; and, the rule is, if the record demonstrates that a party engaged in some conduct that is clearly proscribed by the plain and ordinary meaning of the statute, then that party cannot successfully challenge it for vagueness. The AHCA’s construction and interpretation of the statute are not vague and were not unconstitutionally applied to the hospital. Thus, by not reporting the ventilator incident as a Code 15 occurrence, the hospital undoubtedly violated the statute.
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Depression is a disease that affects many Americans. In recent years as the unemployment rate has skyrocketed, depression has increased as well. Workers who find themselves in vastly different life circumstances than they had planned for, are likely to begin to suffer from depression even if they never have experienced problems in the past. A person who is injured while on the job and finds themselves disabled is more likely than any other unemployed person to suffer from depression related illnesses. A disabled Nassau worker has gone virtually overnight from being a strong active employed person to being bedridden for several days or weeks and unemployed. The new wording to the Family Medical Leave Act states that if a person is catastrophically injured on the job, their company is only required to keep their job open for them for twelve weeks. At the end of the twelve week period, that injured employee may be fired and a new person hired to fill their job. The days of companies and even government entities standing behind an employee who has been injured on the job are over.

That was the situation that one New York highway department worker found himself in when he was struck by a car while at work. He sustained serious personal injury from this accident in December of 1995. His spinal injury left him disabled and unable to return to work. He began to suffer from depression and in January of 1998, his wife found him dead by his own hand. She filed a request for workers compensation death benefits. Her contention was that her husband committed suicide because of his depression which was directly related to the accident at work. A Workers’ Compensation Law Judge agreed that the wife should be granted death benefits. The Workers’ Compensation Board determined that she should not be awarded death benefits because they found that there was no causal relationship associated to the accident and the husband’s suicide. The wife filed an appeal of their decision.

She based her appeal on the fact that death benefits are deemed appropriate if the work injury results in insanity, brain injury, brain deterioration or a pattern of mental deterioration which may culminate in suicide. She also contends that there was no lawyer on the board to evaluate the application of law in this case. According to the Laws of New York State, in order for this woman to be awarded compensation, she must show that there was a causal link between the accident and her husband’s suicide. In order to demonstrate a causal link, she must present competent medical proof that her husband suffered from a mental deterioration brought on by the accident that ended in him taking his own life. The board is required to give more credence to an opinion based on medical evidence, than they are their own opinions that are not based on medical knowledge.

In this case, the wife presented only one medical expert to prove her case. The doctor that she presented was a board certified psychiatrist; however, he had never actually treated her husband before his death. The Suffolk doctor based his opinion only on the written medical records and correspondence with the man’s wife. The court did not feel that this was a sufficient medical opinion in light of the fact that the doctor had never even met the injured man. The medical records that were produced from doctors who did actually treat and know the man before his death showed no mention that the man was suffering from depression or any other type of mental illness. Based on this information the court agrees with the Workers’ Compensation Board that there is not enough evidence present to grant her a death benefits claim.
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A Pensacola, Florida, man is accused of violently pushing his 4-month-old son which caused the child to suffer a traumatic brain injury (TBI). Bond was set for the man at $150,000.
The 20-year-old father, of the 200 block of Marigold Drive was arrested and charged with three separate counts of aggravated child abuse.

As of late last week, he was still in the Escambia County Jail.

According to an expert in Nassau, the child was apparently brought to a hospital by someone close to him. The exact details of that are not known at the present time. The Sacred Heart Hospital contacted the Sheriff’s Office when they suspected the child’s injuries resulted from abuse.

The father initially told deputies that his infant son regurgitated some food and became unresponsive, but he later admitted that he had been sitting on the floor holding his son. The child was crying so much that the father became frustrated and “pushed the infant backward causing the infant to hit his head on the floor.”

In America, a Suffolk Attorney says, children suffer daily from this hidden epidemic known as child abuse. The epidemic covers every socioeconomic level and reaches across cultural and ethnic boundaries. Victims can be found within all religions and at all levels of education.

Every 10 seconds a report of child abuse is made. That tallies to over 3 million child abuse reports that are made annually; this number is not inflated for reports with multiple children listed. In 2007, for instance, over 5.8 million children were involved in the 3.2 million reports. In approximately 10.8% of the above cases, physical abuse was alleged or proven.

The sad truth is that almost five children die daily due to child abuse. More than 75% of them are younger than 4 years of age.

In many cases, one of the parents is also abused and subjugated to the will and pressure of the other. It is surprisingly hard to stop the abuse cycle, even though it is not what anyone wants to be a victim of.
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When a baby suffers from a brain injury at birth, it is a devastating event for the entire family. The family is stricken with the knowledge that the happy healthy baby that they were expecting has received a birth injury that will render that child disabled for the rest of their lives. In cases of this nature where medical malpractice is involved, it is especially devastating for the parents. Many problems can affect the medical malpractice lawsuit in these cases. There are generally more than one doctor present at deliveries in hospitals these days. When there is more than one doctor, it can be difficult to determine which doctor deviated from acceptable medical practice of the day.

One case that involved a child who was delivered by an obstetrician in New York City, left this question unanswered. One of the doctors who attended the birth admits that he was negligent, but claims that the obstetrician who was responsible for the delivery of the child was responsible for the larger portion of blame. He contends that he was not involved in the actual delivery or prenatal care of the mother. He contends that the vast majority of brain damage occurred during that time of the delivery and not after the delivery when he became involved in the case. The doctor stated that he was responsible for caring for the newborn infant when the baby born. He stated that the primary injury to the child occurred when the obstetrician who delivered the child failed to administer oxygen to the mother when the child compressed the umbilical cord during labor. The obstetrician failed to notice that the child was not getting enough blood or oxygen through the umbilical cord until the child had been hypoxic for some time.

Following the delivery of the baby, the obstetrician handed the infant off to the Long Island pediatrician who was standing by. He contends that he was negligent because when he observed the child’s blood tests, he noticed that there was a very high bilirubin count. A high bilirubin count is indicative that the child has had a traumatic birth and that the baby may have suffered from a brain injury. He states that he was also negligent in that the child also had a high hematocrit level which would also tend to indicate that the baby had suffered brain damage during birth. If he had acted immediately with appropriate oxygen therapy, there is a chance that the child would not have suffered as severe a brain injury as he did. However, the pediatrician failed to act and some undetermined time after the child was born, it was discovered that the infant was severely brain damaged.

The parents of the child filed a personal injury lawsuit to recover damages from the medical malpractice that existed in that delivery room. The parents won the lawsuit and were awarded over two million dollars in damages. The pediatrician filed a motion that would prevent the family from recovering more than $450,000 from him personally as a result of the injury to the baby. He contends that he was not the person who caused the greatest amount of damage to the baby and that he should not have to share equally with the cost of damages that the obstetrician caused. The court evaluated the decision of the trial court and determined that the jury was not wrong in awarding damages to the parents and that the sum that was awarded was not extreme. They also contend that the testimony that was given at trial did not provide any type of identifiable manner in which the percentage of guilt could be divided between the two doctors. For that reason, the appeals court determined that the prior order of the court was accurate and that the responsibility would be shared equally between the two doctors.
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When an accident occurs that involves a personal injury, it is important that the injured person seeks help immediately. The laws of New York are truncated when it comes to personal injury. They have set limits on many of the areas that involve compensable injury. If a person does not file their claim within a certain period of time, they will be barred from recovering damages at all. By the same token, the person must prove that their injury is serious under the guidelines of the law. The law defines the guidelines that describe an injury as either serious or substantial. It also provides guidelines that establish what permanent loss of use relates to. For a person to recover damages based on these statutes, they must be able to establish that their injury falls into these categories.

A substantial injury is one that demands a change in the person’s lifestyle. A person who has suffered from a substantial or serious injury will have to stop doing many of the activities that they used to be able to do. If a person is able to continue performing their jobs, or handling their home lives in much the same manner that they were conducting themselves prior to the injury, then they have not sustained a serious injury in accordance with the laws of the state of New York. Generally, when a person makes a claim for personal injury as the result of an accident, they must bring forth expert testimony that will support their claim. A claim of serious injury that is not supported by medical evidence will fail. In fact, a claim of serious injury that is supported only by medical expert opinion and not supported by concrete medical tests will likely fail as well. When a person files a claim of this sort, it is critical that they are sure that they can present this type of medical evidence in court.

Sometimes, even having several doctors willing to testify in your behalf can be challenged. In one case from New York, a limousine driver was involved in an accident that resulted in his sustaining multiple injuries that he claimed were serious under the statute. In fact, some of his claims involved the fact that he was deprived the use of some body parts. He also claimed a serious spine injury and brain injury. He had no less than four medical experts testify on his behalf that he was unable to work or perform daily functions that he had once enjoyed based upon the injury that he had sustained.

The Staten Island defendants in the suit, claimed that he had failed to present a sufficient case to show that he had sustained a serious injury by way of the legal definition of the injury. They brought forth their own doctors who testified that the man’s injuries were treatable. That would mean that the injuries were not considered permanent under the law and would prohibit the man from succeeding with his claim. They filed a motion in Queens with the court to enable them to obtain a summary judgment that would state that the man’s claims were not proved.

A summary judgment is a court action that provides a determination of liability to one party over another without going to trial. The action of a summary judgment is severe and most courts refrain from granting summary judgment in all but the most solid cases. Summary judgment precludes a trial and can limit the recourse that an individual has. In this case, the court denied the insurance company’s motion for summary judgment based on the evidence that the injured man provided. He had definitive test results from his doctors.
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A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.

On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Nassau Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.

The core of the woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.

In an attempt to reverse the Court’s determination, the accused men both separately move for leave to renew the Court’s Decision and Order. Both accused state that their respective motions are made pursuant to the Civil Practice Law and Rules, which provides for a combined motion for leave to reargue and leave to renew.

The Civil Practice Law provides that a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.

In considering such a motion made pursuant to the Civil Practice Law and Rules, a Court must measure each branch of the motion according to the requirements which govern motions for re-argument and renewal, respectively.

In the instant case, one of the accused make it plain in his motion and reply papers that his motion is one for renewal, not re-argument. Specifically, in the reply it is stated that, despite the woman’s assertion that the accused men’s motion is a combined motion to renew and reargue, the accused men’s motion was in fact made as motion to renew. Yet, the accused men include in his motion and reply papers various arguments previously submitted to the Court, without identifying which matters of fact or law the Court allegedly overlooked or misapprehended.

The other man from Suffolk is intimate that his motion is both a renewal and a re-argument motion, although the labeling of his own motion is inconsistent within the affirmation of counsel. Finally, in his reply, the accused claim that the motion is a combined one for renewal and re-argument.

In any event, the Court will consider each such motion separately, as required by statute. Firstly, with respect to the first man’s renewal motion, the Court notes that the accused have not presented any new facts for the Court’s consideration, nor have they demonstrated that there has been a change in the law that would change the Court’s prior determination. Thus, the accused man’s motion to renew is denied, but the Court will consider his motion as one seeking leave to reargue.

The other accused man’s renewal motion is likewise denied. Although the accused have submitted the woman’s deposition testimony, which he did not possess when he filed the original summary judgment motion, the woman’s testimony does not change the prior determination of the Court. The woman’s testimony consists of a total of six (6) pages wherein she testified that she remembers nothing about the accident. She did not testify about the general appearance of the roadways involved, nor did she offer testimony about the bushes in question. Despite the fact that her testimony is wholly and plainly of no moment regarding the men’s liability related to the bushes, the accused men both submitted such testimony in support of their motion.

Although both men’s motions are not specifically and properly identified, the Court will afford a broader view of their respective motions and treat those motions as motions for re-argument as well.

At his oral examination before trial, one of the men testified that he had consumed alcohol on the day of the accident. He testified that ultimately he pled guilty to driving while under the influence of alcohol and that he was sentenced upon that conviction. He stated at his deposition that he was also prosecuted and pled guilty to vehicular assault in the 2nd degree, a class E felony. He admitted that he was operating a motor vehicle while having 0.09 of 1% per centum or more of alcohol in his blood. His license was subsequently revoked.

The man also testified that at the time of the accident which resulted to the woman’s injury, he was operating his motor vehicle heading northbound on Oceanside Road. The complainant woman was operating her vehicle westbound and was attempting to make a left hand turn onto Oceanside Road when the impact occurred. The woman’s travel was governed by a stop sign on Erwin Place. The facts established that, at the intersection, Oceanside Road is slightly curved so that a vehicle traveling north on Oceanside Road, such as the accused man’s vehicle, would be driving on a bend as he approached the subject T-intersection. In fact, the man testified at his deposition that a person traveling on Oceanside Road did not have clear view of the intersection as a result of the curvature of the road, the telephone pole, the speed limit sign and also the hedgerow on the accused man’s properties.

It was also established on the underlying motions that the other man is the owner of the premises, which sits on the south-east corner of said T-intersection, and the front of which faces Erwin Place. The accused is the owner as tenants in common of the premises, which home is adjacent to the other accused man’s home, and the front of which faces Oceanside Road. It was legitimate entitlement to summary judgment as a matter of law.

The testimony of the non-party witnesses establishes that the bushes in question may have contributed to the occurrence of the accident underlying the action, thus raising triable issues of fact with respect to the personal injury liability of both the accused. Neither of the accused men submitted the non-party witness deposition testimony to the Court. The woman submitted that deposition testimony in her opposition to the instant motions made by the accused.

The woman’s former boyfriend testified that the bushes that are blocking the view of the vehicles located on Erwin Place, thus interfering with a driver’s ability to see cars traveling northbound on Oceanside Road.

A passenger in the car traveling behind the woman described that same intersection as being obstructed by bushes that were about six feet high.

A man driving the car traveling behind the woman at the time of the accident testified that the bushes in question block the view of the oncoming traffic on Oceanside Road. He saw the truck only after it had passed the bushes. According to him, the bushes started relatively close to the intersection and ran all the way down and he couldn’t really see the street at all.
The Court turns to the accused men’s claims that the town ordinances do not apply to them, and do not place any duty on them with regard to motorists.

Specifically, the ordinances alleged by the woman to have been breached by the moving accused men relate to Fences and Fences and Planting screens. Upon their instant motions to renew, the accused have failed to proffer any new or additional facts surrounding the alleged statutory breaches. Nevertheless, even overlooking the otherwise fatal procedural infirmity, the accused have failed to demonstrate, yet again on the renewed motion, that the ordinances do not apply to them.

As the Court detailed in its prior Decision and Order, the woman’s personal injury claims against the accused relate to their alleged failure to keep the hedges on their property properly trimmed so as to permit maximum view of the T-intersection. In that regard, while it is true that generally property owners have no common-law duty to control the vegetation on their property for the benefit of public highway users, the accused have failed to show that the shrubbery at issue does not apply to them. Upon their instant motions, the accused maintain that even if the shrubbery at issue is deemed to be a planting screen within the meaning of the ordinances, the language of the ordinances to not specifically outline or intimate that the ordinance is in place to protect drivers on a highway. Relying principally upon the Second Departments’ rulings as well as the Court of Appeals’ ruling, the accused argue that in addition to the fact that there is no common law duty owed to the woman by the landowners, the public policy also supports the finding that they as private landowners cannot be held liable to the accused. The arguments are unavailing.

It is true that there is no common law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway. The absence of a common law duty on the abutting owner, however, does not end the inquiry into the abutting owner’s potential liability. There exists an exception to the common law rule when, as in this case, an ordinance or a specific regulatory provision places an affirmative duty on the abutting owner to maintain and keep the area free of obstructions. It is undisputed that the Town of Hempstead Building Zone Ordinance, impose upon the property owners a duty to prevent vegetation from visually obstructing the roadway. Thus, in the absence of any demonstration by the accused that they complied with said ordinances, proof of noncompliance with the regulatory provisions may give rise to tort liability for any damages proximately caused thereby.
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A Manhattan contractor who owned a home improvement company obtained a contract to renovate a couple’s home. The man worked on the couple’s home: he was up on the roof supervising the repair of the roof when he slipped and fell. He hit his head and sustained a brain injury.

He filed a personal injury complaint against Workmen’s Compensation, against his own company and against the couple who owned the house he was renovating. In that personal injury case, trial was held to determine if the brain injury sustained by the contractor qualifies as a grave injury under the Workmen’s Compensation Law.

During the trial, the contractor adduced proof regarding the extent and nature of his brain injury. His medical experts testified that the contractor had cognitive dysfunction which permanently disabled him from doing any work. The insurance company provided its own expert who conducted a neuropsychological evaluation of the contractor. The expert of the insurance company found that the contractor’s brain injury was severe and traumatic such that he has lost the ability to make decisions required in daily life.

The contractor’s home improvement company was insured for Workmen’s Compensation by an insurance company. During the trial to determine the extent of the grave injury sustained by the contractor, the insurance company sent its lawyer who fully and knowingly participated in the trial even though it was not a party to the said personal injury action. The Queens insurance company was allowed to propound questions to the witnesses presented during the trial. At the end of the trial, the court declared that the contractor suffered a grave brain injury. The contractor was then given an award of damages amounting to about $6,500,000.00 which the couple and the home improvement company immediately paid and settled. The home improvement company and the owners of the house then seek reimbursement or contribution from the insurer of the home improvement company
The insurance company then filed a case where it seeks a judicial declaration that it is not bound by the findings during the personal injury proceedings that the contractor sustained a grave injury. The only question before the Court is whether or not the insurance company is not bound by the findings in the personal injury action that the contractor sustained a grave injury.

The Court held that in order for the insurance company to be held as bound by the findings in the personal injury case, there must be proof that it was a party to the personal injury case or at least privy with any of the parties in that case; the interests of the insurance company were represented during the trial; and the insurance company had a fair opportunity to fully participate in litigating the issue of the nature and extent of the contractor’s brain injury.

The extent and nature of the contractor’s brain injury were fully litigated in the personal injury action. Because the insurance company provided its own expert to examine the contractor, the insurance company is deemed to have been given a fair and full opportunity to be privy to the litigation. Because the insurance company was allowed to propound questions to the witnesses, it is inevitable to conclude that it was given the opportunity to litigate the issue.
For these reasons, the insurance company can no longer be allowed to re-litigate the issue of whether or not the contractor sustained a grave injury. This action for judicial declaration must be dismissed. The insurance company is estopped or barred from re-litigating this issue again.
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Defendant American Real Estate Holdings, LP (American), an out-of-possession owner, leased the building where plaintiff’s accident occurred to defendant Levitz Furniture Corporation of Queens (Levitz). The building consisted of a furniture showroom, an office and warehouse space. Prior to plaintiff’s accident, Levitz had sold large furniture shelving rack unit, as well as other similar units, to defendant and third-party plaintiff International Storage Systems, Inc. (International). International was in the business of buying, dismantling, selling and then reinstalling large furniture rack systems. Pursuant to an oral agreement, which is reflected in various invoices and purchase orders, International then hired plaintiff’s employer, third-party and second-third party defendant Heatley Installations (Heatley), to disassemble the furniture rack system and transport it to another location.

A Lawyer said that, plaintiff testified that, just prior to his accident he was in the process of disassembling the free-standing furniture rack system while standing on a particle-board deck located on the third level of the rack. As plaintiff was removing beams from the level above, and dropping them onto the deck, the deck broke, causing him to fall and sustain brain injuries.

At the time of his accident, the Staten Island plaintiff was not utilizing an available order selector provided for use in retrieving furniture at higher levels. An order selector is a piece of equipment resembling a forklift, which has a platform upon which a worker can stand. In addition, although he was wearing the safety belt provided to him by his employer, plaintiff had not properly tethered to the order selector, despite having been directed to do so less than one hour before his accident.

Plaintiff then filed an action to recover damages against the defendants, for personal injuries he sustained.

Defendants American and Levitz move, for summary judgment dismissing plaintiff complaint as against them and granting indemnity as against defendant and third-party plaintiff International and third-party defendant and second-third party defendant Heatley.
Plaintiff cross-moves, for an order (1) granting summary judgment in his favor on his Labor Law § 240 (1) claim as against defendants American, Levitz and International; (2) granting a Special Trial Preference in his favor; and (3) directing that plaintiff be entitled to a lower burden of proof due to his cognitive injuries.

Defendant and third-party plaintiff International moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s complaint, as well as all cross claims against it.

Third-party defendant and second-third party defendant Heatley also moves, for summary judgment dismissing the third-party and second third-party actions against it in accordance with Section 23 of the Massachusetts Workers’ Compensation Law which bars all third-party actions against the employer in common law; or, in the alternative, in the absence of a finding of “grave injury,” in accordance with Section 11 of the New York Workers’ Compensation Law. Heatley also moves for summary judgment on the ground that plaintiff’s actions were the sole proximate cause of his injuries.

The issue in this case is whether plaintiff is entitled to summary judgment to recover damages from the defendants, for personal injuries he sustained.

The Court in resolving the motion said that, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. The burden then shifts to the motion’s opponent to present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact.

Labor Law § 240 (1), also known as the Scaffold Law, provides, in relevant part:
All contractors and owners and their agents in the erection, demolition, repairing, altering, painting … shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists … and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Labor Law § 240 (1) was designed to prevent those types of accidents in which the scaffold or other protective device proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object or person. To prevail on a section 240 (1) claim, the plaintiff must show that the statute was violated and that this violation was a proximate cause of the plaintiff’s injuries.

Pursuant to a stipulation of discontinuance, plaintiff discontinued his claims as against defendant Levitz. As such, Levitz’s motion to dismiss plaintiff’s claims as against it is denied as moot.

Initially, it should be noted that the furniture rack from which plaintiff fell was a “structure” within the meaning of the Labor Law, as a structure is viewed as `any production or piece of work artificially built up or composed of parts joined together in some definite manner’. In addition, since the furniture rack is to be considered a “structure” for Labor Law purposes, and because plaintiff was directed to dismantle it, plaintiff was engaged in demolition work covered by the Labor Law. Further, testimony in the record indicates that the furniture rack was being used by plaintiff, as well as other workers, as the functional equivalent of a scaffold at the time of plaintiff’s accident.

American moves to dismiss plaintiff’s claims against it on the ground that it was an out-of-possession owner who lacked notice or knowledge of the work being performed at the site.
The Court said that, it is well settled that, to recover under Labor Law §§ 200, 240 and 241 as a member of the special class for whose protection these provisions were adopted, a plaintiff must establish two criteria: (1) that he was permitted or suffered to perform work on a structure and, (2) that he was hired by the owner, the general contractor or an agent of the owner or general contractor
In order for the Labor Law to be applied to an out-of-possession owner, there must be a connection between the defendant and the worker, whether by a lease agreement or grant of an easement, or other property interest.

In the case at bar, a review of the record reveals no proof that defendant American contracted for the work at issue or that it had any notice whatsoever that plaintiff was on its premises until after the accident. In fact, under a triple net lease between American and Levitz, Levitz was responsible for all structural and non-structural repairs, maintenance and costs. American did not employ anyone to supervise any work on the property. As no nexus has been shown to have existed between American and plaintiff in this case, American cannot be charged with the duty of providing the safe working conditions contemplated by Labor Law §§ 240 (1) and 241 (6). Thus, American is entitled to summary judgment dismissing plaintiffs section 240 (1) and 241 (6) claims as against it.

However, as evidence in the record indicates that defendant International not only owned the furniture racks at issue at the time of plaintiffs accident, but that it also contracted with third-party defendant Heatley for their disassembly and removal, International is to be considered an owner of the structure within the meaning of the Labor Law.

Defendant International asserts that plaintiffs Labor Law § 240 (1) claim must be dismissed as against it, as plaintiff’s own negligent actions in not wearing his safety harness, despite being told by his employer that he had to be tied off in order to work, as the sole proximate cause of his head injuries. Where plaintiffs own actions are the sole proximate cause of the accident, there can be no liability under Labor Law § 240 (1).

Here, the Court said that, even if plaintiff was negligent for his failure to properly tether his safety harness, utilize the order picker, or for dropping beams onto the decking, the testimony indicates that such alleged failures were not the sole proximate cause of his head injuries in light of the fact that the particle board shelving that plaintiff was utilizing as a scaffold collapsed. Where the owner or contractor fails to provide adequate safety devices to protect workers from elevation-related injuries and that failure is a cause of plaintiff’s injury, the negligence, if any, of the injured worker is of no consequence. In other words, even if the plaintiff was partially at fault, a worker’s contributory negligence is not a defense to a Labor Law § 240 (1) claim. Neither comparative fault nor assumption of the risk is a defense to a Labor Law § 240 (1) cause of action. Thus, defendant International is not entitled to summary judgment dismissing plaintiff’s Labor Law § 240 (1) claim against it, however plaintiff is entitled to summary judgment on the issue of liability under Labor Law § 240 (1) as against defendant International.

With regard to the claim for common-law indemnification, defendants American and Levitz move for summary judgment in their favor on their cross claims for common-law indemnification as against International and Heatley. In addition, Heatley moves for summary judgment dismissing International’s third-party action for indemnification on the ground that, under Massachusetts Workers’ Compensation Law § 23, all third-party actions against the employer in common law are barred.

The Court in resolving the claim of the defendants said that, to establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident. In the absence of any negligence, a claim for common-law indemnity may be established upon a showing that the proposed indemnitor had the authority to direct, supervise, and control the work giving rise to the injury.

Here, defendants American and Levitz have not been shown to be guilty of any negligence. In addition, although vicariously liable for plaintiff’s brain injuries under Labor Law § 240 (1), such liability is not tantamount to negligence. Moreover, defendant International did not exercise a degree of control over plaintiffs work so as to predicate liability based on common-law negligence. In fact, a review of the record indicates that plaintiff’s work was supervised solely by his employer, Heatley.

The Court held that, general supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed.
Thus, defendants American and Levitz are not entitled to summary judgment in their favor on their cross claim for common-law indemnification as against defendant and third-party plaintiff International. In addition, International is entitled to summary judgment dismissing American and Levitz’s cross claim for indemnification against it.

Moving forward to plaintiff’s cross-motion for lesser burden of proof, the Court said that, a plaintiff who suffers amnesia as a result of a defendant’s acts is not held to as high a degree of proof in establishing his right to recover for head injury as a plaintiff who can describe the events. “It is only where the memory loss has effectively prevented a plaintiff from describing the occurrence that invocation of the rule of Schechter v. Klanfer is warranted”.
In the case of Schechter v. Klanfer (supra), wherein the plaintiff, who was injured while operating a motorboat, was unable to recall the events of his accident, the Court noted:
The danger is, of course, that amnesia is easily feigned. The dangers may be ameliorated. Plaintiff has the burden of proof on the issue of amnesia as on other issues. A jury should be instructed that before the lesser burden of persuasion is applied, because of the danger of shamming, they must be satisfied that the evidence of amnesia is clear and convincing, supported by the objective nature and extent of any other physical injuries sustained, and that the amnesia was clearly a result of the accident.

In the absence of expert evidence establishing a loss of memory and its causal relationship to defendant’s fault, the jury may not consider the question or apply a lesser degree of proof in evaluating plaintiff’s claim. On this record, it is clear that plaintiff, although he suffers from a memory defect caused by his accident, is not entitled to application of this rule. When plaintiff was asked if, other than taking medication, there was any reason that he was not able to testify in his deposition, plaintiff replied in the negative. Thus, as in this case, where the parties are on equal footing insofar as accessibility to the facts there is no need to afford preferential treatment.

The Court in resolving plaintiff’s cross-motion for trial preference, stated CPLR 3403 (a) (3) allows for a trial preference in an action in which the interests of justice will be served by an early trial. Under the circumstances of this case, and in light of evidence of plaintiff’s indigency, plaintiff’s application for a trial preference is granted in the interests of justice. Plaintiff testified that he currently resides in a homeless shelter in Chicago, which provides food to him. Plaintiff, who has not worked since his accident, also testified that he does not know if he can care for himself. Plaintiff also stated that he receives no workers’ compensation and does not have a bank account.

In addition, in his medical report, Dr. Schuster concurs that, as a result of plaintiff’s brain injury, plaintiff is indigent and existing in a city shelter. Kim Allen, the manager of the facility where plaintiff currently resides, stated that at the time that plaintiff was referred to the facility, plaintiff had been wandering the streets in Chicago for several days. She also maintained that, other than cashing his Social Security Disability checks, plaintiff does not manage his own finances. Thus, plaintiff is entitled to trial preference in this action.
Hence, in view of the foregoing, the Court ordered that the part of American’s motion, for summary judgment dismissing plaintiff’s complaint against it is granted; and the complaint is severed and dismissed as to this defendant.; and it is further ordered that defendant Levitz motion, for summary judgment dismissing plaintiff’s complaint against it is denied as moot; and it is further ordered defendant and third-party plaintiff International’s motion, for summary judgment dismissing plaintiff’s Labor Law §§ 240 (1) and 241 (6) claims predicated on violations of Industrial Code 12 NYCRR §§ 23-1.11 (a), 23-1.22 (c) (1) and 23-5.1 (c) (1), (f) and (g) as against it are denied; and it is further ordered that the parts of International’s motion, pursuant to CPLR 3212, for summary judgment dismissing plaintiff’s common-law negligence and Labor Law § 200 claims, as well as American and Levitz’s cross claims for indemnification as against it, are granted; and it is further the parts of plaintiff’s cross motion, for summary judgment in his favor on his Labor Law § 240 (1) claim as against defendants American and Levitz and directing that plaintiff be entitled to a lower burden of proof due to his cognitive injuries are denied; and it is further ordered that plaintiff’s cross motion, for summary judgment in his favor on his Labor Law § 240 (1) claim as against International, and granting a Special Trial Preference in his favor are granted.
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Personal Injury accidents can have life altering effects on the person who is injured. Sometimes, the problems that the person suffers exceed the physical injuries that have occurred. When a person goes from being active and unimpaired one day to infirmed the next, it is impossible for the person to not have some depression about the change in life circumstances. In some of these cases, the injured person becomes so depressed by the changes in his or her life circumstances that they lose the will to live. In these cases, New York law has stipulated that if the person filing a wrongful death suit must be able to show that there is a causal link between the person’s suicide and the injury that they received at work.

One case that involved this type of wrongful death action involved a man who was injured twice at work. He was injured 14 years before his death and then again five years before his death. In 1945, the decedent was an usher at a movie theatre when a fight broke out in the men’s room. He attempted to break up the fight and was pushed into a marble wall, and suffered a brain injury. He was diagnosed with a cerebral concussion as a result of the accident and eleven days later a workers’ compensation doctor announced that he was fully recovered. His wife claims that although he went back to work. Her husband suffered from headaches blackouts, and fainting spells following this accident.

The second accident occurred in 1959 in Nassau, when he suffered a debilitating back injury while at work. The back injury changed his lifestyle and caused him to plummet into a state of deep depression. His wife stated that it was this deep depression that led him to take his own life. The workers compensation board disagreed. They contend that this man was suffering from many issues that affected his mental stability long before he took his own life. They contend that he was suffering from mental illness before he had his first work place injury in 1945.

The workers compensation board attorneys state that it was his life story that pointed to their contention that his work place injury had nothing to do with his suicide. They testified that his birth was the result of the rape of his mother who was crippled. She could not stand the sight of him after his birth and gave him up for adoption. He was raised in foster care and had medical problems from birth. He suffered from painful rickets as a small child because of his poor nutrition. He had surgery in 1940 for a polyp in his right ear. Four years later he was hospitalized because of a severe bout of renal colic. He remained in the hospital for a month. The year before his first industrial accident, he voluntarily admitted himself into the Queens General Mental Hygiene Clinic for anxiety and back pain. He told the medical personnel at that time that he had fallen off of a stoop three years before. He told them that as a result of the fall, he would get panicky and have black outs. He told them that he would have occasions of blindness that would occur about twice a day and that he suffered from headaches every day. He also told them that he had strange dreams and nightmares. The board maintained that while the causes of suicide are many, this man was headed in that direction long before his first industrial accident.

The court in Suffolk did not agree. They reviewed all of the associated evidence and determined that while this man clearly had other issues to deal with, the change in life circumstances that occurred following his back injury were dramatic. The depression that resulted was well documented and the Supreme Court ruled that the death was associated to the personal injury.
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According to the research provided in a study released last week, the Army could reduce the chances of a soldier suffering from brain injury simply by having them wear a helmet one size larger and containing slightly thicker padding.

The study in Long Island found that as little as a Enlarge Closen eighth of an inch more cushion could decrease impact force on the skull by up to 24% – a substantial difference when determining whether or not brain trauma is on the menu.

Brain injury is a common occurrence on the battlefield of Afghanistan, and the Army is looking to verify the findings and then to move toward issuing larger helmets with the extra padding. Concussions are common among troops knocked about inside armored vehicles or flung to the ground while on foot patrols.

The results of the research and development are very encouraging. The work warrants field testing on a limited and experimental basis, starting with a brigade of soldiers. For a widespread policy and wardrobe change, more research and validation of the findings are necessary.

During the summer of 2010 alone, battlefield doctors diagnosed more than 300 service members per month with concussions and mild traumatic brain injuries (TBI). A smaller number of service members were diagnosed with more moderate or severe head wounds.
A New York Brain Injury Law Specialist says the effectiveness and economic brilliance of the study is that it offers an answer that is drawn from equipment the Army already has. “This is what appears to be an off-the-shelf solution.”

Helmets currently weigh about 5½ pounds. Upgrading to one size larger would add about 4 ounces of weight to the headgear. The study found that adding padding beyond an eighth of an inch provided only slightly better protection, and since they are concerned and unwilling to create helmets that are too large or heavy for soldiers to maneuver in, they are working with the idea of the 1/8 inch padding.

Although this discovery by Bronx scientists improves protection against a blow to the head, soldiers still need a bulletproof helmet and one that will resist blast waves. Only then will the brains of soldiers be completely protected from TBIs on the battlefield.
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