The Taub Law Firm, P.C. secures $4,000,000 Settlement for 55 Year Old Woman Involved in a Motor Vehicle v. Pedestrian Accident
An injury may be caused by the negligence of an owner, landlord, tenant or property manager.
Property owners, tenants,and management companies are responsible to keep their properties in a reasonably safe condition. This includes municipalities, but there is a special condition for filing a Notice of Claim when a municipality is involved.
When a person is injured by a slip-and-fall due to negligently removed ice and snow, a trip-and-fall due to a cracked sidewalk or pot-holed parking lot, or any other cause that is associated with a premises of any kind, the injured person has the right to seek compensation for their damages from any and all of the people responsible for keeping that premises in a reasonably safe condition.
In order to prove a negligence case based upon a fall at a premises, the injured person must be able to show first that a dangerous and/or defective condition caused the fall, and then that the owner and/or others responsible for the premises knew of the defect and yet failed to timely and properly remedy it.
What Qualifies as a"Dangerous and Defective Condition?"
Property owners, tenants, managing companies, and maintenance companies are responsible for keeping their property in a reasonably safe condition. The failure to do so may give rise to a dangerous and/or defective condition. Liability in a negligence action based on such a condition depends on whether the condition was neither too small to be considered de minimis but also not too large to be considered open and obvious.
Liability also depends on causation: whether the existence of the condition was a cause of the incident. Although a person may have fallen while walking across a badly cracked sidewalk, for example, if the fall was caused when they tripped over their shoelaces, then the sidewalk, no matter how badly cracked, was not the cause of the fall and there is no case against those responsible for maintaining that sidewalk. The injury must be caused by the defective condition.
This week, the Village Voice took up the issue of Special Needs Trusts -- special funds created to ensure that beneficiaries who are disabled or mentally ill can enjoy the use of property which is intended to be held for their benefit (these trusts are occasionally set up for severely injured personal injury clients).
As the Voice article states, "there are virtually no rules governing whether trustees are spending in the best interests of their clients. Worse, the courts can only review these cases if someone complains."
Recently, according the article, Manhattan Surrogate Judge Kristen Booth Glen picked a fight with the banks who oversee such trusts, and issued a ruling that could change the way such trusts are managed.
The full article in the Voice is available here, while a preview appears below.
Our thoughts about Special Needs Trusts and the quandaries involved? We have handled a plethora of cases where a Supplemental Needs Trust or a Pooled Trust has become necessary because our client received certain benefits from the government (such as Medicaid) to cover healthcare, public assistance, food stamps, and housing. To accept a settlement or obtain a verdict in a personal injury case without taking the proper precautions could result in forfeiture of those benefits. Accordingly, a Trust is needed.
The problems with the trust are numerous, but here are a few:
1. If the Plaintiff (recipient) is not mentally disabled or impaired they are often frustrated and annoyed with all the “red tape” attached to obtain permission and consent for expenditures. They are also upset with the limitations reviewed and often imposed as to what may be purchased and when.
2. Also if the Plaintiff (recipient) is not mentally disabled or impaired they are often resentment of the limitations as they view the money awarded as being compensation for their pain and suffering. They often don’t see the big picture in that taxpayer’s money has carried them and will continue to support them in the future. They become resentful that the attorney earns a fee while they have constant and substantial limitations and tight procedures to follow.
3. (This is more in line with the Voice article:) When the Plaintiff is mentally disabled or impaired and relies upon a trustee or guardian to make decisions, in addition to the procedure “red tape” involved there is always the problem and temptation for that trustee or guardian to abuse his/her discretion and authority and use some of those funds for benefits on people or items other than for the sole benefit of the Plaintiff.
4. In all instances where a trustee or guardian is eligible for a fee for services rendered there is always the possibility to seeking payments in excess of services rendered. This applies to attorneys and law firms who have put in such positions of authority.
5. In a pooled trust where the remaining funds revert back to a charity upon the death of the Plaintiff (recipient) there often appears to be an ongoing battle between the trustee and Plaintiff for the release of funds, due to the trustee seeking to preserve as much of the corpus as possible for the charity when Plaintiff dies.
The full article in the Voice is available here, while a preview appears below.
The Ruling That Could Change Everything For Disabled People With Million-Dollar Trusts
A pissed-off judge, a $3 million inheritance, and a neglected autistic man
By Katia Savchuk for THE VILLAGE VOICE
Published: July 10, 2013
WHEN JUDGE KRISTEN BOOTH GLEN walked into her Manhattan Surrogate's courtroom one day in 2007, she had no idea she was about to challenge the nation's top banks on behalf of tens of thousands of disabled people. Read more>>>
Join Our Petition to subscribe NYC to "PublicStuff," a Convenient and Efficient Mobile App That Addresses Potholes and Other City Defects
*Update: the petition is now live and you can electronically sign on to join the cause!
In cities like Philadelphia, everyday residents can now alert their municipality to potholes, cracked sidewalks, and other dangerous and defective conditions via a mobile application known as PublicStuff.
A recent article in the New York Times denoted how, despite this achievement, the City of New York does NOT use the service, and instead remains relegated to the unwieldy and Orwellian 311 system. Though 311 has a web site and mobile app, these interfaces do not record whether a request was "accepted," is "in progress" or is "closed" (as it claims to do).
In the meantime, any alerts sent to PublicStuff by New York City residents are called "orphan requests," essentially meaning they go nowhere.
Of course, municipal liability for any injuries as a result of defective conditions is tightly protected through the City's "pothole law" (Administrative Code of City of NY § 7-201(c)(2)), whereby only prior written notice of a defect fifteen (15) days before an accident allows for victims to seek monetary redress. The fact that an application like PublicStuff might open the City to greater liability is outweighed by the value of making conditions safer through such a "crowdsourced" effort.
If you are interested in the City subscribing to this service, we encourage you to sign on to our online petition and/or alert your NYC Council Member regarding same. We believe the City will be safer as a result of this service.
Proposed changes for a deteriorated profession.
(Note: on the web site Medium, this is a collaborative post where readers can weigh in with their own thoughts and comments. Please join the conversation there).
It’s time for real tort reform.
Not ill-advised “caps”—with fraudulent or exaggerated cases still making it into the court system while legitimate, egregious instances of wrongdoing become arbitrarily limited in the process, or the repeal of century-old protections for laborers to further line the pockets of real estate developers as construction jobs become only more perilous.
No, it’s time for nothing less than a sea-change in the policies that currently govern the practice of law...
(continue to the full post on the web site Medium, where you can also weigh in).
This piece is offered in tandem with a more robust work entitled "A Retort to Tort Reform," which appears below:
Insurance, licenses, helmets, and traffic law changes are among the issues that must be addressed immediately.
The debut of the “Citibike” program is an exciting moment for the City of New York, despite some predictable opposition. But many issues need to be addressed, such as insurance, licenses, helmets, and traffic law changes. Such reforms should apply not just to bike share programs, but possibly for all bicyclists in general.
*Note: on the web site Medium, this is a collaborative post where readers are invited to weigh in with commentary and suggestions, in addition to my proposed reforms (icons along the right margin of the Medium web site should allow this).
1. Mandatory (or at least optional) insurance requirements. The fact that most bicyclists are uninsured is a gaping hole in the ability for accident victims to recover when they sustain injuries. Many pedestrians have been seriously wounded or even killed by bicyclists.
As a personal injury lawyer, I often represent bicyclists as Plaintiffs when they are injured by motor vehicles, I also ocassionally sue bicyclists for striking pedestrians. However, unless the bicyclists are employed by a messenger service or restaurant, whereby they are in the scope of employment while making deliveries (and thus covered by the employer’s insurance), there can often be little ability to recover any verdict award from a leisure bicyclist’s personal assets.
The Citibike program already charges user fees for riders to utilize the service. Like Zipcar, the car sharing program where insurance is automatically included, the Citibike fee should include the cost of insurance for any accidents. It seems unclear as to whether it does, but this should certainly be a mandatory component for allowing access to the “Citibike” bicycles.
The further question is then whether the state should also require insurance for all bicyclists, or at least make it available. Such insurance is often difficult to obtain— not always easily tethered to a renter’s or homeowner’s policy and rarely independently available (though this may change). In any event, this all leads to the next issue.
2. Should bicyclists be licensed? This issue cuts a few ways. Along with a requirement (or at least an option) for insurance coverage, another issue is whether bicyclists should be licensed and/or be required to have small license plates posted on their frames. If plates were required, traffic cameras could then capture them with respect to cyclists who violate traffic laws,cause motor vehicle accidents, or are wanted in police investigations. Any bicycle without a plate could immediately be pulled over to enforce the rule, such as with motor vehicles presently.
If a license simply came in tandem with the purchase of insurance, the system could work rather seamlessly. However, the more requirements imposed to obtain the license (such as a biking test or a written test on the rules of the road), the greater the chance of creating scofflaws. Restaurant delivery workers, especially, are at the highest risk to flout such a law, as these workers are often undocumented in our immigration system. That being said, basic tests such as providing proof of a most recent eye and/or hearing exam, and proof of insurance in order to obtain the license would be helpful.
A separate issue would then be whether the owner of the bicycle would be required to have the license / insurance, or the rider of the bicycle, or both. Most restaurants require their workers to bring their own bike to and from the job, and these bicycles are often previously stolen and sold to the workers in a black market. There might need to be a further crackdown on these unseemly elements in order to make the whole program work, or a law mandating the restaurant provide license plates / insurance to its restaurant workers.
3. Create helmet requirements / “helmet share” programs. Citibike does not provide helmets to its riders. Though helmets are not a requirement for those over age 14, with many new cyclists on the road posing as potential accident victims, this creates a worrisome trend for personal injury lawyers like myself. Do we represent a cyclist with a severe head injury, where the accident was clearly someone else’s fault but the damages could have been easily mitigated had the victim worn a helmet? A flood of new litigation along these lines seems likely, and unnecessary.
The position of pro-cycling groups such as Transportation Alternativesis that a helmet requirement would be impractical and/or pose health concerns.
But if our cities are now at the point where we can erect self-cleaning public restrooms, is a self-cleaning “helmet share” that far off? The option should at least somehow be provided to cyclists as part of the Citibike program.
4. Amend the Vehicle and Traffic Law to be more realistic. According to New York’s Vehicle and Traffic Law, “bicyclists are granted all of the rights and are subject to all of the duties of the driver of a motor vehicle.” Technically, bicyclists must therefore stop at every red light, exactly like all other vehicles on the roadway.
The elephant in the room is that it is impractical for bicyclists to stop at every red light. Yet there are still many large, dangerous intersections where stopping fully, and abiding by the VTL, is warranted.
A discussion needs to take place whereby the VTL might be amended to be more realistic and in accordance with a cyclists’ experiences. The following scenarios should be considered for cyclists to “use their discretion:”
(a) Crossing the intersection of a one-way roadway controlled by only by a stop sign.
(b) Crossing the intersection of a one-way roadway controlled by a standard traffic light.
Allowing cyclists to “use their discretion” in one or both of the above-mentioned scenarios, while more vigorously enforcing the need for cyclists to stop at more complex and/or dangerous intersections (and also enforcing the prohibition of bicycling against the flow of vehicle traffic) would go a long way to ushering bicyclists into greater respect and compliance with the law.
While bike sharing programs present exciting opportunities for a new vibrancy in the fabric of the urban experience, issues such as insurance, licenses, helmets, and traffic law changes need to be addressed. Such reforms should apply not just to bike share programs, but possibly for all bicyclists in general.
Matthew Taub is a writer and lawyer in Brooklyn, NY. He is the author of “Death of the Dying City,” a novel.