1. Insist on providing a written report to the manager or supervisor of the store or establishment, which you review before signing, and get a copy of that report;

2. When reporting an accident, do not allow the store representative to put words in your mouth (which they love to do) such as that you were looking at the shelves, not the floor, or you were distracted by a child or a cellphone;

3. If you slipped on a substance and there is an open bottle, write down the name of the product. If you slipped or tripped on an item sold in the store, secure this item as it will be of critical importance if your case reaches trial;

4. Take photographs of the accident scene on a cellphone or better yet, a digital camera if you are fortunate enough to have one with you;

5. Obtain the names, addresses, phone numbers and e-mail addresses of any witnesses to the accident;

6. Don't refuse medical attention if you are injured--take them up on their offer to call an ambulance for you. We have many cases in our office in which the client refused medical attention initially, which is a frequent defense of the insurance carriers for these owners of dangerous premises;

7. Take photographs of any visible injuries such as bruising, swelling, and bleeding;

8. Preserve intact any clothing which has been damaged, torn or has blood stains or stains from a spilled substance;

9. Maintain a diary of how the accident has affected your life, documenting pain, loss of range of motion, inability to perform activities of daily living, doctor's appointments, and the loss of enjoyment of hobbies and sports that you would normally engage in.

Thus, if you have suffered injury due to a dangerous product or device, you should do the following whenever possible:

1. Take photographs of the machine, from several angles, and in good light if available;

2. Obtain the manufacturer's name, address (and phone number if on the machine);

3. Write down the model number, serial number and any other information that is on the machine;

4. Get copies of any operating manuals, instructions or paperwork that accompanied the product upon purchase;

5. Attempt to obtain any service records for the machine, or the names and addresses of any companies that serviced the machine;

6. Obtain records of any modifications or changes that have been made to the device or product over the years.

6. Document your injuries by taking photographs immediately after the accident;

7. Secure the names, addresses, phone numbers and e-mail addresses of any witnesses to your accident;

Often, it will not be possible to obtain all of the above items when the machine is old and records are lost or discarded. However, it is vital to the success of a New York defective products case to have as much information as possible to identify potential defendants including manufacturers, distributors, retailers, repair or service companies and suppliers. The manufacturer or distributor can be responsible for many different dangers, including defective design of the product, negligent manufacture of the product, failure to properly maintain the device, improper or lack of safety labels or warnings, and failure to recall products which have a known defect or flaw.

Accidents between a car and large truck account for 10% of fatal motor vehicle accidents in New York, and approximately 5% of the serious personal injury accidents. From 2002 through 2005, there was a range of 140-150 deaths per year in New York truck accidents. The Department of Transportation determined that the three main causes of these accidents was: following too closely-10%; driver inattention or distraction-9%; and failing to yield the right of way-7%. The majority of all truck accidents are caused by aggressive driving by one of both of the drivers involved.

Motorcycle fatalities and motorcycle accidents are on an upward trend, due to the steady popularity of motorcycles, inexperienced riders, the attraction of “extreme” motorcycle riding, and the price of gasoline. Motorcycle deaths on New York highways rose from 155 in 2003 to 163 in 2005.

There are 113,000 miles of highway in New York State and 16,000 of those highways are operated by the state. Intersection crashes account for approximately 25% of all highway fatalities in New York. There were 77,161 fatal intersection crashes in 2005. Overall, there were 142,287 fatal and personal injury accidents in 2003; 133,314 in 2004, and 128,581 in 2005. Rear end and left turn accidents are responsible for about ½ of all New York motor vehicle crashes. There were 479 fatal accidents from cars overturning or colliding with fixed objects in 2005, and 203 fatal accidents or injuries from crashes in construction zones.

From 2003-2005, failing to yield the right of way contributed to 16% of New York fatal car accidents; following too closely 13.5%; and unsafe speed was partially responsible for 11% of the deaths on New York highways. These driver behaviors have remained constant despite the reduction in overall accidents between 2003 and 2005.

In Part 2 of this series, we will the DOT’s findings regarding New York motorcycle accidents, large truck accidents and pedestrian accidents.

The lawsuit seeks damages for the wrongful death of Michael and Guy Bastardi, as well as damages for the pain and suffering of both men. Under New York State law, the main elements of damages would be for pain and suffering and wrongful death. Wrongful death damages are limited to “pecuniary loss.” What this means is that if Ms. Guzzo is the plaintiff, for the wrongful death of her brother and father, her damages would be limited to whatever income her father or brother gave her on a regular basis. She could not recover for the emotional loss of her brother under New York State law, but would have a claim for the “loss of parental guidance” of losing her father in the tragic accident.

However, the more compelling issue in this case will be whether the Bastardi family can prove, as they have alleged, that either or both of the Bastardi men survived the accident, even for a few minutes, in order to recover damages for their pain and suffering. Apparently, the attorney for the Bastardis has statements from some first responders indicating that both men were still breathing and responsive immediately after the accident. In order to establish damages for pain and suffering, it is not enough to show that the men survived the horrific impact, but it must also be shown that they suffered “conscious pain and suffering.”

It is expected that the attorney for Daniel Longo, the other man killed in the Bastardi vehicle, will soon file a lawsuit for his wrongful death. One of the main issues in this case will undoubtedly be the extent of the insurance coverage, which would be sought on behalf of all three men, and will clearly be inadequate in compensating the two families for their horrible losses. Ms. Guzzo did state that the lawsuit was not filed for compensation, but to “shine a public spotlight on drunken driving.” There is no doubt that this tragic accident, lawsuit or not, is and will be in the public spotlight for a very long time. It is also a certainty that any damages the families recover in this case pale in comparison to the losses they have suffered.

Route 1, which stretches from Pelham to Port Chester, is statistically the most dangerous road in Westchester County, with 9.65 accidents per million miles traveled (mmt). In second place as the road where motorists are most likely to be involved in a motor vehicle accident is Route 100B, between Dobbs Ferry and Greenburgh, with 8.65 accidents per mmt. Third most common was Route 119, from White Plains to Tarrytown, with 8.05 accidents per mmt.

Conversely, there were only 1.71 accidents per mmt on I-287 and 1.40 on I-95. The average on the Cross County Parkway was 2.65; Bronx River Parkway averaged 2.63 per mmt; the Hutchinson River Parkway was 1.61, and the Sprain Brook Parkway averaged 1.16 accidents per mmt. The safest road, (ironically concerning the speeds that drivers average on this highway), is I-684 with 0.83 accidents per mmt. This can probably be explained by the fact that 684 is a straight, wide and relatively level highway. The most dangerous small stretch of road in Westchester? The section of Route 9D near the Bear Mountain Bridge, with 13.4 accidents per mmt.

In 2007, young drivers were in 6,669 fatal accidents resulting in 7,650 deaths. There has been a 13% decrease in deaths involving young drivers from 1998 to 2007, with the peak being 9,251 fatalities in 2002. There are three main causes of the much higher percentage of young driver fatalities in this country: failure to wear a seat belt; alcohol involvement, and speeding. According to the study, overall seat belt use among all drivers is 82%, but among young drivers, it is 77%, and in fatal crashes in 2007, 61% were not wearing their seat belts. Regarding alcohol usage, 31% of young drivers involved in fatal accidents in 2007 had some alcohol in their systems, and 26% were over the legal limit of 0.08 percent (BAC).

31% of all fatal crashes in the United States are at least partially attributable to speeding. However, in 2007, a whopping 39% of male drivers age 15-20 killed in auto crashes were speeding when the accident occurred. Young female drivers age 15-20 accounted for 24% of all fatal crashes. Of all ages and genders of motorists, 15-20 year old males are the most likely to be speeding when a fatal car crash occurs.

There is a very important distinction between your testimony about the accident, which should be as short and limited as possible, and testimony about your injuries, pain and the effect on your life, which absolutely must be thorough, descriptive, and no holds barred.

Testimony as to the accident is a minefield since the defense attorney is looking to get testimony from you that can be used to blame the accident on you rather than his client. Classic examples of this are in New York car crash cases and trip and fall accidents. For example, in a deposition involving an auto accident, the attorney will ask the following: "For how long before the accident did you see the other car? Clearly, this is a trick question. You may not have seen the car at all before the accident, but if you did, it would only be a for a few seconds or less, yet countless witnesses will respond "Oh, for a minute before the accident." Obviously, if you had plenty of time to see the other car before an accident, you would have had time to avoid the crash, so make sure you think about the question before you respond. In a trip and fall deposition, the defense attorney will ask: "Where were looking as you were walking? Most people walk looking straight ahead as well as looking toward the ground, but if you only mention looking straight ahead, you have now sown the seeds of a defense that the plaintiff "failed to see what was there to be seen"--meaning that had you been looking at the ground also, you would have seen the uneven or broken sidewalk and avoided the accident. The motto is give short, responsive answers, think carefully about the question before answering, and if you don't know or can't remember a detail, do not hesitate in giving this answer--never guess or speculate!

Remember that this is your own opportunity before trial to let the defense attorneys and insurance companies know why they should try to settle with you prior to trial, so if you minimize your injuries, you better believe they will. I have frequently had clients tell me during our preparation that "I hate to complain, it's not my personality." Guess what? For the two or three hours of the deposition, you must complain, and describe your pain in detail. USE ADJECTIVES! Never say I have "discomfort". A stubbed toe causes discomfort; a torn anterior cruciate ligament or Achilles tendon hurts like hell! Give examples of what your pain feels like, so that the attorneys, and later on, potential jurors will know precisely what you mean: i.e. "The pain is so bad it feels like I am being stabbed with a knife in my knee when I walk..." Make sure that the defense attorneys know exactly how the injuries have prevented you from doing what you love--playing tennis, running, skiing, or playing basketball with the kids, as well as hampered you in doing activities you must do, such as cooking, cleaning, or other household chores.

Do not let the other attorney cut you off if you have not completed your answers about the toll the accident has taken on your life--remember that the attorney is preparing a report to send to the insurance company claims representative--every detail counts!

Because of the vital importance of the deposition, you should make sure to get a good night's sleep the night before, and arrive for the deposition clear headed and well rested. If it's possible, it is better for you not to take pain killers that you would normally take if they have side effects which could affect your alertness and stamina. Additionally, it is my opinion that if you are feeling more of the effects of your injuries while you are testifying, you will be more likely to emphasize the pain and disability form those injuries. I also strongly believe, although many attorneys do not do this, that preparation for the deposition, including how to respond to questions about your accident and injuries most effectively, should be done prior to the date of your deposition. Typically, lawyers meet with their clients to prepare an hour before (sometimes 15 minutes before) the deposition is to take place--this is a huge mistake, especially considering the importance of the deposition and the likelihood that you will be somewhat anxious and less likely to be able to remember the instructions you are given.

When testifying, you must keep your cool and testify in a calm and clear fashion. Defense attorneys have numerous strategies to rattle you, anger you, intimidate you and attempt to cause you to lose your focus and concentration. It is critical that you avoid these traps--your goal should be to convince the defense attorneys that if the case reaches trial, you will be a formidable witness. You will know that you accomplished this goal if within a month or two of the deposition, the defense attorneys approach your attorney to discuss settlement of your case--in my experience, this happens frequently when the client does well at his or her deposition.

Part 2 of this article will focus on the content of your testimony--how to testify most effectively to prove your case.

These three potential cases against municipalities have a common, critical element: A notice of claim, alerting the town, village or city department to the date. time, location and the specifics of the accident must be filed within 90 days of the accident. If a properly prepared notice of claim is not filed with the municipality within that 90 days, your New York County trip and fall, Kings County car accident or Westchester County slip and fall accident (to use three examples) will be denied by the municipality and dismissed by a local Court. There are exceptions to this very harsh rule, for example, in some cases involving infants and those with certain disabilities, but for the most part, failure to file a timely notice of claim is fatal to your personal injury case.

Thus, it is vital that you consult an experienced, knowledgeable lawyer immediately after your accident to assure that your rights and interests are protected.

On September 17, Henry M. Garcia, a nineteen year old unlicensed illegal immigrant from Guatemala, was found to have a BAC of 0.27 percent, more than three times the legal limit. Garcia was arrested after driving for six miles southbound in the northbound lanes of the Taconic, and was finally pulled over when he made a U-turn in Pleasantville. Mr. Garcia was also charged with DWI, aggravated DWI and felony reckless endangerment. His case is pending in Mount Pleasant.

Thankfully, there were no car accidents in either of the September wrong way driving arrests. However, the New York State Department of Transportation is taking action due to the open question: Why are so many drivers, (taking into account their intoxicated condition) driving the wrong way on this parkway? The State DOT will now install "Wrong Way" signs, as well as "Do Not Enter" and "One Way" signs at all exit and entrance ramps on the parkway by 2010. This measure follows federal transportation recommendations that have been in place since 2007.

Driving schools seem to concur that if someone is driving head on toward you in your lane, to avoid a serious car crash, you should try to veer off to the shoulder if possible. If there is no shoulder or this isn't possible, try to steer into the median, since hitting a fixed object is preferable to a head on collision.

Another excellent type of documentation is to maintain a diary of the following: the hospital and medical treatment you underwent; the type of pain you experience on a daily basis, and what activities bring the pain on or exacerbate your suffering; your inability to perform activities of daily living due to your injuries (and identifying the people who must do these activities instead regarding household chores or maintenance); and how the accident has affected your enjoyment of life. This is instrumental when you must give testimony at a deposition or trial (often months or a couple of years after the events) as to treatment, pain and disability, and the toll the accident has taken on your life. These are the most important elements a jury will consider when deciding how much to award for your damages, so keeping a diary is a very smart way to improve your chances of a successful outcome at trial or a more substantial settlement before trial.

The fine for a violation of the new law is $150.00. Graham Parker, a spokesman for the New York State Senate Transportation Committee, claims that the "Legislature will keep in touch with law enforcement agencies after the law takes effect and can change it if needed." Nonetheless, if the purpose of the law was to deter distracted driving and prevent New York fatal car accidents or serious injuries, I personally do not see how this toothless law will do much to accomplish that goal. Distracted driving has become such a serious issue that Ray LaHood, the U.S. Transportation Secretary, has announced that there will be a "distracted driver" summit in Washington on September 30th and October 1st to review the problem.

Local police departments have become more skilled at detecting drivers who are texting while driving, despite the fact that many will hold their phone below dashboard level. Methods include using vehicles that give them the ability to look down into nearby cars to identify texting drivers, stationing a plainclothes officer at a location where he can look down into cars slowing for traffic and then notify a cruiser up ahead, or simply watching body language and eyes looking down rather than straight ahead.

There have been numerous accounts of other drivers seeing Ms. Schuler driving erratically on Routes 17 and 87, weaving in and out of lanes, tailgating and driving across grassy medians. There were several reports that once on the Taconic Parkway northbound (in what Schuler apparently believed was the right lane of the parkway southbound), drivers were beeping their horns, flashing their headlights, and calling 911, all to no avail. It is particularly tragic that with the usual police presence on each of these roadways, (especially on Route 17 and the Taconic), that Ms. Schuler was never stopped and arrested for DWI.

But there is another issue to address here for each of us. If confronted with a car proceeding toward you the wrong way on a high speed roadway, what would you do? Let's start out with some basic estimates and facts. Assuming that the Schuler and Bastardi vehicles were each traveling at approximately 60 miles per hour, that means that the vehicles were moving toward each other at approximately 175 feet per second--120 m.p.h @1.467 feet per second. There is a wide variance in brake reaction time statistically, but generally speaking, the range is between 1.5 seconds and 3 seconds. Then there is what is known as brake engagement distance, (how long it takes the brakes to begin slowing the car once the foot depresses the pedal), which some studies have indicated is about 0.3 seconds. Adding on what is known as physical force distance-- how far the vehicle would continue to travel before it stopped, at least another 150 feet would be needed for each vehicle to come to a stop.

Defensive driving classes teach you to anticipate those places and situations on the road where a head-on collision is possible, such as curvy roads where the other driver could lose control. You are supposed to use your headlights in daylight, to make the other driver think about you. Drive on the right side of your lane, to have more room between your car and the other driver moving into your lane. Lastly, we are taught that if another driver is coming at you in your lane, to turn right, not left, since the other driver will likely turn to their right, enhancing the collision. The idea is to not hit something square, and try for a glancing blow if at all possible. Tragically, that did not happen in this case, with horrendous results.

Please contact the White Plains Law Office of Mark A. Siesel online or toll free at 888-761-7633 if you or a loved on is injured in a car accident or any other type of accident for a free consultation with an experienced, knowledgeable attorney to discuss your case.