Legal News Archive September 2012 Image

Legal News Archive: September 2012

The Serious Consequences of New York’s “Serious Injury” Law

September 27, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

The issue of whether the plaintiff suffered a “serious injury” as defined in the Insurance Law §5102 (d) is raised constantly in those cases in which a plaintiff claims soft tissue injuries, bulging discs, disc herniations, and other cervical and lumbar syndromes. Where the court concludes that a claimed injury fails to meet the criteria set forth in the New York State Insurance Law that defines “serious injury”, the case will be dismissed. Thus, such issues must be dealt with by the plaintiff submitting convincing medical affidavits sufficient to satisfy Section §5102 (d).

Continue Reading: The Serious Consequences of New York’s “Serious Injury” Law

Additional Info: Car Accidents

The Medical Malpractice Case - A Difficult Area of Litigation

September 26, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

The hospitals and doctors throughout our state and nation treat many thousands of patients on any given day. Not always is the outcome of such treatment beneficial to the patient who may suffer significant injuries that were unexpected following the treatment rendered. The fact that there is a poor outcome or bad result however does not in and of itself make the hospital, its staff, or treating doctor’s automatically liable to the injured patient. For the patient who has suffered a bad result from a hospital and/or medical treatment to have a cause of action, the patient who by law has the burden of proof, must establish that the defendant charged committed medical negligence, or what is commonly called medical malpractice.

Continue Reading: The Medical Malpractice Case - A Difficult Area of Litigation

Additional Info: Medical Malpractice

A StoreKeeper’s Negligence when the Instrumentality that Causes Personal Injury is in the Sole Knowledge and Control of the Storekeeper

September 25, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

Under our civil law, the plaintiff has the burden of proof to establish by a fair preponderance of the credible evidence that the injury sustained resulted through the negligence of the storekeeper defendant. The law also recognizes there are those cases where the instrumentality that caused the injury was within the sole knowledge and exclusive control of the defendant. That being the case, there is a specific rule of evidence known as res ipsa loquitor (meaning “the thing speaks for itself”), which once raised by the plaintiff shifts the burden to the defendant owner to offer credible proof that the instrumentality that caused the injury was either not dangerous in its ordinary use, or that the instrumentality did not cause the injury claimed (or some other defense). A recent case, Bonfante v. Mane, Inc., reported in the New York Law Journal on June 26, 2012 (Nassau County, Justice Galasso), is in point. There, a patron visited a salon for a massage. She was placed on the table and when the masseuse used hand pressure on her, the table tipped, causing her to fall and sustaining injury. Presented with those facts, the Court ruled that the doctrine of res ipsa loquitor was applicable and directed that the defendant store keeper was negligent as a matter of law, thereafter setting the case down for an assessment of damages by a jury.

Continue Reading: A StoreKeeper’s Negligence when the Instrumentality that Causes Personal Injury is in the Sole Knowledge and Control of the Storekeeper

Additional Info: Accidents

The Frye Hearing and its Impact upon a Personal Injury Case

September 25, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

The cases that require expert scientific support are quite common in the personal injury field. Take for example a typical medical malpractice case in which the plaintiff claims that Dr. “X” through his negligence caused injury “Y”. Typically, and at least thirty days prior to trial, plaintiff must, in accordance with the New York rules, serve a statement upon the defense attorney setting out the specific field of the plaintiff’s medical expert, qualifications, and opinions that will be offered at trial (Rule 3101 [d]). The defendant must also comply with the rule by serving plaintiff’s counsel with a similar statement.   The reason for the rule is to avoid surprise at trial, in addition to generally limiting the expert to that which is set forth in the 3101 [d] statement.

Continue Reading: The Frye Hearing and its Impact upon a Personal Injury Case

Additional Info: Toxic Exposure

A Consumer’s Rights against a Retailer

September 25, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

There are thousands of products on the market, each of which can cause harm to the consumer or user of the product. When injury occurs as a direct consequence of use, there are various theories of law and legal remedies available to the consumer. For example, the product may have a design defect, or it may have been manufactured with a defective part, or it may have been manufactured negligently (below the reasonable standard of the industry), or it may have failed to affix warnings of its dangers on the product sufficient and prominent enough to alert the consumer of its potential to cause harm if used improperly, etc.

Continue Reading: A Consumer’s Rights against a Retailer

Additional Info: Accidents

A Worker Exposed to a Toxic Substance used on the Job who Suffers Injury May Sue the Manufacturer

September 24, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

Simply stated, negligence is the doing of an act that a reasonably prudent person would not do under the same or similar circumstances. Negligence is also defined as the failure to do an act that a reasonably prudent person would do under the same or similar circumstances.

Continue Reading: A Worker Exposed to a Toxic Substance used on the Job who Suffers Injury May Sue the Manufacturer

Additional Info: Products Liability

Suffering Personal Injury by Falling Down a Defective Step

September 21, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

Falling down steps is not an uncommon occurrence or unusual type of accident. It happens every day to people given the thousands of steps found overall in apartment buildings, subways, office buildings, private homes, commercial establishments, etc. The law is rather clear in a case where plaintiff falls and (1) identifies the exact step or spot involved; (2) describes the dangerous defect that caused the fall (broken step, debris, a spill, snow and ice, etc.); (3) offers proof that the owner of the steps knew or should have known of the defect and failed to repair or remove it.

Continue Reading: Suffering Personal Injury by Falling Down a Defective Step

Additional Info: Slip & Fall Accidents

Liability of a Manufacturer to a Consumer under Strict Products Liability Law

September 20, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

With millions of products on the market, it can be reasonably anticipated that a certain number of consumers will sustain an injury in the use of a product. The question therefore asises: what are the rights of the injured consumer as against the manufacturer? The same question applies to the supplier (distributee) of the product.

Continue Reading: Liability of a Manufacturer to a Consumer under Strict Products Liability Law

Additional Info: Products Liability

The Negligent Operation of a Motor Vehicle and a Pedestrian Knockdown

September 19, 2012 | Former NYS Supreme Court Justice Leonard L. Finz

A typical case arises when a motor vehicle strikes a pedestrian thereby causing serious injury. The questions that are usually raised are whether the operator violated any traffic statutes (e.g. traffic light, stop sign, or other traffic devices); whether the operator drove his vehicle with reasonable care (e.g. speed, road conditions, visibility, etc.); whether the operator had reasonable control of his vehicle; whether the operator saw what in his view he should have seen; whether the operator exercised reasonable care in avoiding contact with the pedestrian, etc. These are all questions that ultimately must be decided by a jury or trier of the fact in determining whether the operator was negligent.

Continue Reading: The Negligent Operation of a Motor Vehicle and a Pedestrian Knockdown

Additional Info: Motor Vehicle Accidents

Basic Facts About Spinal Cord Injuries

September 16, 2012 | Finz & Finz, P.C.

No matter whether caused by a car accident or a fall from improperly maintained stairs, suffering a spinal cord injury (SCI ) can change a person's life. Unfortunately, SCIs are not uncommon: roughly 450,000 people in the United States currently live with a SCI. Each year, approximately 10,000 people suffer an SCI and most of them - about 82 percent - are men between the ages of 16 and 30.

Continue Reading: Basic Facts About Spinal Cord Injuries

Additional Info: Spinal Cord Injuries

Recent Study Clouds Issue of Prostate Cancer Screening

September 10, 2012 | Finz & Finz, P.C.

According to statistics compiled by the American Cancer Society, nearly 242,000 men in the United States are diagnosed with prostate cancer each year. In fact, besides skin cancer, prostate cancer is the most common type of cancer among American men. Despite improvements in treatment options in recent years, nearly 30,000 men die each year from prostate cancer. What is worse, experts disagree about whether early screening is important, which could possibly lead to the delayed diagnosis of prostate cancer.

Continue Reading: Recent Study Clouds Issue of Prostate Cancer Screening

Additional Info: Prostate Cancer

Fatigue a Leading Cause of Large Truck Accidents

September 02, 2012 | Finz & Finz, P.C.

According to statistics compiled by the U.S. Department of Transportation, there are nearly 500,000 truck accidents in the United States each year. Approximately 130,000 people are injured and 5,000 people are killed each year as a result of these accidents. In 98 percent of fatal truck accidents, the people killed were in a passenger vehicle, not a truck.

Continue Reading: Fatigue a Leading Cause of Large Truck Accidents

Additional Info: Driver Fatigue

Recognized Leadership