New York Personal Injury Lawyer Blog

Robert Donohue, a Southeast resident whose wife and 8 year old daughter were killed by a drunk driver back on June 8, 2009, has filed a Putnam County wrongful death lawsuit against the owner of the vehicle and the property owner where the accident happened. The facts are that on June 8, 2009, Lori Donohue and her daughter Kayla were outside of Kayla's dance class at the Seven Stars School of Performing Arts in Brewster, when illegal immigrant Conses Garcia-Zacarias, who was driving while intoxicated, struck the two and killed them.

Garcia-Zacarias, illegally in the United States from Guatemala, was employed by horse trainer Valarie Renihan, a Westchester County resident, and was apparently living with several other undocumented workers employed by Renihan in a Southeast house leased by Renihan. Renihan is being sued on the basis that she permitted Garcia-Zacarias to operate her Ford F-350 pick up truck despite the fact that she knew or should have known that he was an unlicensed, illegal immigrant. Mr. Donohue is also suing Jan and Mindy Stark, the owners of the property where the accident occurred, on the theory that they knew that the dance school was close to a very busy road and had there been barricades between the parking lot and the roadway, the accident could have been prevented.

Shortly after the accident, the Town of Brewster installed concrete barriers to protect visitors as they walked to and from the dance school. Further, the Starks added columns to provide for a sheltered walkway. The allegations in the lawsuit are that the Starks should have taken these safety measures prior to the accident and were aware of the dangerous proximity of the dance school parking lot to the roadway. However, it would appear that this will be a much more difficult allegation to prove than the claims as to Mr. Garcia-Zacarias, who clearly should not have been permitted to operate a motor vehicle without a license and who was operating a motor vehicle with a blood alcohol content (BAC) of almost twice the legal limit at the time of the accident.

Garcia-Zacarias pled guilty to two counts of vehicular homicide in November of 2009 and is serving a jail term of 8 1/3 to 25 years in the Clinton Correctional Facility in Dannemora, New York. When he completes his jail sentence, Garcia-Zacarias will likely be deported to Guatemala.

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With the incredibly snowy winter we're having here in the Metropolitan area, people are slipping on icy sidewalks and stairways and suffering very serious injuries. In New York, in order to be successful in a slip and fall accident, you must be able to establish that the landowner had "notice" of the dangerous condition of the walkway or stairs prior to the accident. Notice can be either "constructive"; that is, that the landlord or property owner "knew of should have known" of the icy conditions--i.e. the landlord has his or her office there and could observe the dangerous conditions, or "actual", meaning that the property owner knew of the snow or ice by virtue of a letter, e-mail or phone call specifically informing she or he about the snow and ice conditions.

If you are the victim of a slip and fall on ice or snow, make sure that you do the following:

1. Take photographs of the area where you fell from numerous different angles (have a friend or relative do this for you after learning of the accident). This is critical, as particularly in snow and ice accident cases, most of the time the conditions have changed or have disappeared within hours after the accident, making it much more difficult to prove your case if the case proceeds to litigation.

2. Obtain the names, addresses, phone numbers and e-mail addresses of all witnesses to the accident. This is another critically important factor in proving cases, as defendants and insurance companies frequently utilize the defense that the accident either did not occur at all or did not happen where the injured person says it did.

3. Report the accident to the property owner, and if possible, obtain a copy of the accident report.

4. Report the accident to the police, and request a copy of the police report.

5. Keep any damaged property or clothing in a safe place as it will be evidence in the case.

6. Seek hospital and medical treatment immediately. It is vital that you make sure that the triage nurse correctly describes the happening of the accident and that you confirm this before leaving the hospital. We are seeing an increase (either for reasons or carelessness or more sinister reasons) in admitting notes which distinctly blame the accident on the injured person without any foundation, for example: "patient reported that while late for work, he slipped on the driveway and broke his left arm", or "while attempting to answer her cellphone, patient didn't observe the ice on the sidewalk and fell, landing on her right hip." In both of these cases, the admitting notes were completely inaccurate, but once you leave the hospital, try to convince the insurance company of that fact.

As for don'ts, there are two critical ones to remember. First, do not sign anything from an insurance company for the property owner. For example, they will often contact you before you are aware of the extent for your injuries, offering to pay for your medical bills in exchange for your signature on a "release" which will end your rights to bring a claim or lawsuit. Second, do not agree to give a recorded statement on the telephone to the insurance adjuster. These insurance representatives are trained in asking questions to elicit answers which attribute the fault of the accident to you.

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