August 23rd, 2010
For more than a century, New York State’s workers have enjoyed the protection of the Labor Law. One law in particular, Labor Law § 240(1), has afforded exceptional protection to a worker engaged in a protected activity, and whose injuries have come about either because he has fallen from a height or because materials have fallen from a height onto him. The protection is so exceptional that an injured worker’s own partial fault will be overlooked if it is determined that the law was violated in the context of a protected activity. Compare that to a typical personal injury case–in which the injured party’s own partial fault is calculated as a percentage of the total fault that caused the injury, and any compensation award is reduced in proportion to that injured party’s own fault.
The “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” are all protected activities according to the statute. Thus, when a worker who is engaged in a protected activity suffers injury after falling from a height due to the absence or failure of a safety device, that worker is afforded special protection under the labor law. Similarly, if a worker suffers injury because materials fall from a height due to the absence or failure of a safety device, that worker is afforded special protection under the labor law.
Much debate in this area of the law has focused on the question of whether the worker was engaged in a protected activity. The courts have made it clear that “routine maintenance” activity is not protected under this section of the Labor Law. For example, a worker who falls from a ladder due to the ladder’s failure, while in the course of changing a burned out light bulb, has been deemed to be performing routine maintenance, and not engaged in a protected activity. On the other hand, repairing or replacing the light fixture that holds the bulb has been deemed to be non-routine repair work, and thus enjoys the label of protected activity.
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June 21st, 2010
Here in the Bronx we love baseball, and we relish the opportunity to participate in athletic and recreational activities. Unfortunately, accidents can occur when participating in such events. Sometimes, these accidents may be due to the fault of the owner of the property where the event took place, or the organizer of the event.
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Is the property owner or event organizer legally responsible for an injury suffered by an event participant? The owner or organizer has long argued that a participant assumes the risk of injury by participating in the event. With regard to sporting and entertainment activities, courts have long agreed that the owner or organizer does not owe a legal obligation to injured participants for those risks that are obvious and inherent in the activity. Otherwise, the rational goes, owners and organizers of athletic and recreational activities would be sued out of existence, and society would lose out on the enormous social value provided by such athletic activities.
These protections from legal liability afforded to owners and organizers of athletic and recreational events have, over recent years, been expanded to owners and organizers of nonathletic, non-recreational events. But this slow expansion in favor of owners and against injured accident victims has been brought to a halt, thanks to an April 6, 2010 decision by the New York Court of Appeals. In that case this legal protection, known as the “no-duty” rule, had been expanded by a trial court to protect a school from liability when a student had slid down a banister and fell. At least initially, the school had successfully argued that the student had assumed the risk of injury when he elected to engage in horseplay. But on April 6, 2010, New York’s Court of Appeals, our state’s highest court, affirmed a reversal of the trial court, which had initially granted judgment to the school. The Court ruled that owners and organizers of events are protected from legal liability only in the context of athletic and recreational pursuits that possess enormous social value. A child sliding down a banister does not possess such social value, and therefore the owner – the school in this case – may be held legally responsible for its alleged failure to properly supervise the student.
Trupia v. Lake George (Cornell Law School)
Tags: athletics, horseplay, liability, New York Court of Appeals, Personal Injury Law, Recreation
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June 8th, 2010
Motor vehicle accidents are fought in court pursuant to a unique set of rules. Perhaps the biggest rule states that an injured plaintiff must be able to prove that he or she sustained a “serious injury” in order to keep the case in court. “Serious injury” is defined by the Insurance Law, and absent evidence of a serious injury the case is subject to be tossed out of court. The law as it relates to what qualifies as a serious injury, and what does not, has evolved quite a bit over the years. This is particularly so because, due to the large amount of motor vehicle lawsuits in our court system, appellate courts are continuously being asked to consider cases, with different degrees of proof of injury. With each new look, appellate courts have been given the opportunity to refine the legal definition of “serious injury.” And with each new look, it seems as though it has become more difficult and onerous for a plaintiff to meet the definition of serious injury.
The Appellate Court for the Second Judicial Department recently handed down a decision, in November 2009, which places an additional obstacle upon an injured plaintiff seeking to prove a serious injury. Until then, the law was settled that an injured plaintiff had to, among other things, prove the “duration of the alleged injury and the extent or degree of the limitations associated therewith.” See, Jourbine v. Ma Yuk Fu, 67 AD3d 865 (2nd Dept. 2009). The duration requirement meant proving that the injury was not fleeting, but rather permanent, accompanied by an explanation for a gap in treatment, if there was a gap. The limitations requirement meant proving how normal activities of daily life have now, because of the injury, been impeded. In its decision of November 2009, the Appellate Division Second Department has signaled that additional proof is required. An injured plaintiff better be prepared to offer proof of “range-of-motion” limitations that were documented by a doctor immediately after the accident occurred. In the absence of “range-of-motion” limitations documented immediately after the accident, it seems as though the injured plaintiff will not be able to prove “serious injury.” It will be interesting to see whether the other Appellate Divisions of New York State follow this reasoning.
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Tags: court rulings, Law, New York Supreme Court Appellate Division, Personal Injury Law, serious injury, Traffic collision
Posted in Personal Injury Law | No Comments »
May 27th, 2010
In order to better provide improve our relationship with the legal practice, developments in personal injury/accident law, and the Bronx community, the Law Offices of William A. Gallina has vastly expanded our presence online. We are looking to continue on this front for the long haul, and that’s why we’ve started this blog. The Official Blog of the Law Offices of William A. Gallina will post on subjects ranging from the legal field as it pertains to personal injury—our primary area of practice.
In addition to posting on developments in the legal field as well as updates with our firm, we will also be posting regularly on issues related specifically to the Bronx, continued our long-standing reputation as a community resource.
Is there a new issue in the legal area that you want to here about? Is there a new development at the Bronx Zoo, a new restaurant in Morris Park, or a recent trade by the Yankees that’s captured your interest? We’ll do our best to cover all of it. We want to make sure that those who come to gallinalaw.com know that they can rely on us, just as they would if they came to our office. Don’t hesitate to send an email, follow us on Facebook or Twitter, call us or visit our office the old fashioned way with any questions. That’s what we’re here for 
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April 6th, 2010
Welcome to WordPress. This is your first post. Edit or delete it, then start blogging!
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