New York Personal Injury Lawyer Blog

The New York Court of Appeals, the highest Court in New York State, ruled on September 22, 2011 that the Port Authority of New York and New Jersey was not liable for the severe injuries and six fatalities caused in the first terrorist bombing of the World Trade Center on February 26, 2003. In the original attack, a car bomb was driven into an underground parking garage and exploded, injuring 1,000 and killing 6.

The theory of the plaintiffs was that the Port Authority had been given numerous warnings from security consultants that the underground garage was a likely and a vulnerable target for a terrorist attack. Under New York State Law, in order to prevail in a personal injury case, a plaintiff must be able to prove that a defendant either knew or should have known that an accident was likely to occur (the concept of legal “notice”) and failed to take reasonable measures to prevent the accident or incident. Notice can be either “actual”, which means through a writing, an e-mail, telephone call or in person conversation, or “constructive”, which means that the defendant should have known based upon the circumstances that the accident was likely to occur and failed to take preventive steps.

In a very closely divided decision, (4-3), the Court ruled that the Port Authority was entitled to what is known as “governmental immunity”, in which governmental bodies, such as the Port Authority, are shielded from certain types of liability for discretionary or ministerial acts that they take. The Court determined that the Port Authority should not be treated in the same manner as a private landlord, who likely would have been held responsible on similar facts. The Court of Appeals focused on the fact that the Port Authority, although made aware of the potential risk of a car bomb in the garage, in its discretion, focused its attention and resources on other areas which it believed warranted enhanced security, including the public concourse and lobbies of the two towers.

The majority decision was written by Judge Theodore T. Jones, Jr., who stated: “Governmental entities cannot be expected to be absolutely infallible guarantors of public safety.” Jones noted that security experts found that the parking garage was a much less significant risk than the concourse and plaza area.

There were 600 plaintiffs in the lawsuit, including many victims employed by Cantor Fitzgerald, the investment firm that was decimated in the September 11, 2001 attacks 8 ½ years later. The February 26, 1993 attack involved two men driving a Ryder truck with several bombs inside into the underground garage, causing the massive explosion.

Many of the lawsuits were settled, but there are some that are still pending. The case was originally heard in 2005, with a Manhattan jury determining that the Port Authority was 68% responsible for the attack, and the terrorists were 32% to blame. The lower level appellate Court in New York, called the Appellate Division, affirmed the lower Court decision in 2008. In the subsequent trial on injuries and damages, after fault was assessed as described above, one victim was awarded $824,100. It was this decision which was appealed to the Court of Appeals and reversed on September 22, 2011.

In the dissent, Judge Ciparick wrote that the Port Authority acted as a landlord, even though it is a governmental entity, and “should be held responsible for not taking basic security measures that would be expected of any private landlord of a large commercial building.”
Since the Court of Appeals is New York’s highest Court, this does not leave recourse for the plaintiffs to appeal the reversal of the $824,000 award.

Continue reading "Port Authority Not Legally Responsible For '93 WTC Attack" »

Over the last several months, there has been a major initiative by some doctors and former NFL players to review, analyze, and develop a plan for how to prevent or limit what is known as "traumatic brain encephalopathy" (injury to the brain caused by repeated blows to the head). On February 20, 2011, this condition was in the spotlight when Dave Duerson, a former star safety for the Chicago Bears, died from a self-inflicted gunshot wound to the abdomen. Duerson specifically shot himself in the abdomen to ensure that his brain could be examined--a brain that he was convinced was diseased from many years of teeth shattering blows to the head. Duerson was involved in more than 550 tackles during his playing career with the Chicago Bears and New York Giants.

It has been shown that approximately 20 former professional football players died at a young age from brain damage associated with traumatic brain encephalopathy. This figure also includes Mike Webster, (known as "Iron Mike” during his playing career) a hall of fame center for the Pittsburgh Steelers, who died of a heart attack after years of depression, financial losses, and multiple suicide attempts. Neuropathologist Dr. Bennet Omalu, who at the time of Webster's death was in the Pittsburgh Medical Examiner's Office, found that Webster's brain had large deposits of "tau", a protein which is in the brain’s microskeleton. According to research, with repeated head trauma, tau loses its self repairing ability and begins to accumulate, causing tangles and threads in the neocortex which can mimic the symptoms of Alzheimer’s disease or Lou Gehrig's Disease.

Dr. Omalu is of the firm opinion that due to the significant risks of brain disease from repeated head trauma, infants under the age of 18 should not play football, and stated in an interview that "There is no reason, no medical justification, for any child younger than 18 to play football, period." He also noted that: "The brain is not fully developed until about age 18. Impact to the head in younger people may not cause any obvious damage that could be seen on CT or MRI, but on the cellular, epigenetic level there is damage."

Since the 1920's, doctors have known that repeated trauma to the brain could lead to neurologic and cognitive deterioration that many boxers suffered from, known initially as "dementia pugilistica." At one time, the assumption was that former athletes who became depressed, abused drugs and lost their families and fortunes were simply not able to cope with life after the glory and adulation of professional sports. But with numerous cases of traumatic brain encephalopathy being reported in football players, hockey players, boxers and military members over the last several years, Boston University established a research institute known as the Center for the Study of Encephalopathy to more thoroughly investigate the effect of repeated head trauma in athletes.

A report published in the Journal of Neuropathology and Experimental Neurology in 2009 evaluated 5 football players and 30 boxers who were dying at very young ages--the football players at age 44 on average and the boxers at age 60. The symptoms they experienced included severe mood disturbances, memory loss, and aggressiveness. Four of the five football players died tragically in suicides, a high speed car chase, and a gunshot wound. The Boston Institute has started a "brain bank" with approximately 100 living players agreeing to donate their brains for research purposes when they die to study chronic traumatic encephalopathy further.

In a more recent development adding further credence to the theory of trauma induced brain injury in professional athletes, in the last 4 months, 3 professional hockey players have committed suicide. Each of these players were known as "enforcers", and blows to the head were both expected and routine, leading to numerous concussions. Wade Belak, the 35 year old forward for the Nashville Predators hanged himself on August 31 in Toronto; 27 year old former Winnipeg Jet Rick Rypien committed suicide in August; and 28 year old former New York Ranger Derek Boogaard took a fatal drug overdose in May. Belak fought 136 times in his 549 game career in the N.H.L, and assessed 1,263 penalty minutes.

To force the NFL's hand on dangers which have been known for many years but not properly addressed, 7 former NFL players filed a class action lawsuit in July of 2011, contending that the league failed to properly treat concussions and attempted to cover up the connection between playing football and developing brain injuries. We intend to closely follow the progress of this case and its implications for athletes across the United States at all levels of football, hockey and other contact sports.

Continue reading "Player Suicides Proof Of Link Between Head Trauma And Brain Injury?" »

Bicycle riding is more popular than ever in the United States, and according to studies, is exceeded only by walking for exercise and swimming in popularity. Unfortunately, bicycling can be a very dangerous activity if common sense measures are not followed, for several reasons, but most significantly, due to many bicyclists sharing the roadways with motor vehicles. This fact is shown by National Highway Traffic Safety Administration (NHTSA) studies, which indicate that there were 718 bicyclists killed in fatal accidents in 2008, and 630 in 2009.

The most dangerous time to ride a bicycle is between the hours of 4:00 PM and 7:59 PM. 70% of fatal bicycle accidents occur in urban areas, and a majority of accidents happen in non-intersections. Males are much more likely to be involved in fatal accidents as well as suffer serious injuries in bicycle crashes, with 82% of the total fatalities and 80% of injuries, according to NHTSA.

The following are the most important safety measures which bicyclists should follow to avoid serious injuries and death:

A. Wear a bicycle helmet. NHTSA reports that bicycle helmets are 85-88% effective in preventing fatal injuries and non-life threatening injuries;

B. Obey all traffic controls such as stop signs, traffic lights, and yield signs;

C. Bicyclists must comply with all rules of the road, including Section 1231 of the New York Vehicle and Traffic Law, which states in relevant part: "Traffic laws apply to persons riding bicycles...Every person riding a bicycle ...upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a motor vehicle by this title."

D. Bicyclists should wear reflective and bright clothing at nights and use reflective devices on their bicycles to ensure that drivers see them;

E. Comply with Vehicle & Traffic Law Section 1236 (a) and (e) by equipping their bicycles with a front white light that emits light 500 feet forward and a rear red or amber light which emits light 300 feet to the rear between the hours of 30 minutes after sunset to 30 minutes before sunrise;

F. Bicyclists should never travel in the opposite direction of traffic on the roadway;

G. Bicyclists must always be aware of debris in the roadway, pedestrians, animals and weather conditions.

Continue reading "Primer--How To Avoid Bicycle Accident Injuries " »