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Last month, two members of Gov. Cuomo’s state security team with the NYS Police were involved in car accidents with pedestrians on consecutive days in Mount Kisco. First, on January 18, 2012, Dolce Perez, 22, was stuck as she was crossing Main Street by a vehicle operated by Sgt. Joseph Crispino as he was attempting to turn left from Maple Avenue onto Main Street. Ms. Perez was taken to Westchester Medical Center in Valhalla, reportedly with a skull fracture. She was quoted as follows: I remember walking across the street, the light at the intersection was red and I had a walk sign, and then the car must have hit me because the next thing I remember is I woke up in the hospital.” According to a State Police spokesperson, they are still investigating the fault of this first accident.

Then, the following day, on January 19, 2012, 50 year old Jeronimo Ardon-Perez was crossing North Bedford Road (Route 117) when he was struck by a vehicle operated by State Police Investigator Gregory Panzarella. In both pedestrian accidents, the troopers were off duty and alone in their unmarked vehicles. In this second auto accident, the state police spokesperson claims that Mr. Ardon-Perez “crossed into the front” of Panzarella’s unmarked 2005 Pontiac Grand Prix, and that the vehicle “clearly was operating within the right of way.” Mr. Perez (no relation to the fist victim) was also taken to Westchester Medical Center with serious head injuries and injuries to his legs.

The State Police reconstruction unit is investigating both accidents, which certainly begs the question as to whether there is a conflict of interest in the investigation. In my own experience, I have had cases in which local police officers were involved in accidents, and the investigation was referred to the State Police to avoid the conflict of having the same police agency “Investigate its own.” The State Police spokesperson noted that: “It is customary for us to handle our own accidents, regardless of where they happen…we are a close to 5,000 person agency, with different groups that handle different matters, and we are able to separate investigations from the groups that are involved.”

Both of the troopers are on duty and no sobriety tests were given to either. The State Police deny that there is any significance to the fact that these two accidents happened in such close proximity in time and location.

There are regulations under the New York State Vehicle & Traffic Law which control the right of way at an intersection and the rights of both pedestrians and drivers of motor vehicles. Specifically, under section 1111 of the Vehicle & Traffic Law, if a pedestrian is within a crosswalk with the green light, the pedestrian has the right of way and all vehicles must yield to that pedestrian. Conversely, if the pedestrian is attempting to cross in an intersection without a traffic signal, under 1151 of the Vehicle & Traffic Law, the pedestrian is only permitted to cross if the vehicle is not “so close that it is impractical for the driver to yield.”

Thus, in determining fault in these two cases, the issues will be: Were Dolce Perez and Jeronimo Ardon-Perez within a crosswalk? Was there a traffic control signal? Was the traffic signal green for them? If there was no traffic control signal, was there sufficient time for the troopers to have stopped their vehicles?

We will monitor the investigation of these two cases and report further on any developments.

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In the first in what is likely to be a litany of civil lawsuits, a 29 year old man has filed a personal injury civil lawsuit against former Penn State assistant football coach, Jerry Sandusky, the Second Mile, (the charity for “at risk children” that Sandusky founded) and Penn State University. The plaintiff, who is identified only as “John Doe A”, alleges that he first met Sandusky when he was a ten year old boy through a Second Mile program. He alleges that he was sexually assaulted by Sandusky more than 100 times over a 4 year period from 1992 through 1996.

The plaintiff in this civil lawsuit is apparently not one of the eight victims described in the grand jury report released earlier this month. John Doe A claims that Sandusky recruited him with gifts, travel and privileges as a promising athlete, and that the abuse took place at Sandusky’s home, in the locker room on the Penn State campus, and at the site of a bowl game. It is also alleged that Sandusky threatened the plaintiff and his family if he disclosed the ongoing abuse.

Jeffrey Anderson, the attorney for John Doe A, is a well known lawyer from Minnesota who specializes in “clergy sexual abuse.” Anderson’s co-counsel Marci Hamilton indicated that John Doe A had lengthy discussions with Pennsylvania authorities this week.

I have reviewed the 27 page complaint filed on November 30, 2011 in the Court of Common Pleas in Philadelphia County, Pennsylvania. There are eight causes of action against the three defendants, with $50,000 the monetary amount being sought for each count. The complaint recounts the entire history of the sexual abuse scandal at Penn State, including the well publicized incidents in 2000, when Sandusky was allegedly observed orally sodomizing a young boy by a school janitor, and the 2002 incident when he was allegedly caught raping another 10 year old victim by assistant coach Mike McQueary.

In the complaint, there are causes of action for:

1. Childhood sexual abuse and “vicarious liability”;
2. Negligence;
3. Negligent supervision;
4. Premises liability;
5. Negligent misrepresentation;
6. Intentional infliction of emotional distress;
7. Intentional misrepresentation;

8. Civil conspiracy to endanger children.

The complaint was drafted in a way to establish liability against the “deep pocket” defendants, meaning Penn State and to a lesser extent, the Second Mile, as these are the parties likely to have sufficient assets to satisfy a judgment if the case proceeds to trial and liability (fault) is proven against Penn State and the Second Mile. Many of the allegations contain the language ”knew or should have known”, which is a legal concept known as actual and constructive notice. Essentially, Mr. Anderson is alleging that either Penn State and the Second Mile knew of Sandusky’s abuse of children (actual notice), which can be proven through direct observation of witnesses, conversations, or documents, or should have known,(constructive notice) in that these defendants would have to have been oblivious to clear indications that Sandusky was abusing children but chose to ignore these signs. For example, shouldn’t anyone have been questioning why Sandusky continuously was alone in the company of young boys in locker rooms, at his home, at bowl games and other locations? How come no other coaches were ever present for these activities?

The vicarious liability action, which means that one party can be found responsible for the actions of another, is premised on the fact that Sandusky was a representative and employee of the Second Mile and Penn State, who could be held accountable if it is established that Sandusky was acting as their representative in his interactions with children.

Of these eight causes of action, only the first and third were commenced against all three defendants, including Sandusky. Clearly, the manner in which the complaint is written is designed to establish fault against Penn State and Second Mile for placing Sandusky in a position in which he would have access to young children and be in a position to engage in abuse. Anderson knows that Sandusky does not have the assets that a huge corporation such as Penn State has, or to a lesser extent, the Second Mile, to pay a judgment if the case proceeds to trial. Further, there is also a significant insurance coverage question. Many policies are written to exclude coverage for intentional actions, or to exclude insurance coverage for sexual assault.

It is not at all surprising that Sandusky has reportedly transferred the title of his house to his wife, unquestionably fearing civil lawsuits and the loss of his assets. However, there is a concept in the law by which if assets are transferred in anticipation of litigation, the transfer can be voided as fraudulent. On the other hand, some states do have an exemption for the homestead, potentially removing Sandusky’s house as a possible asset to satisfy a judgment. If Sandusky has bank accounts or stocks, those are assets which he will undoubtedly have a problem transferring and or protecting now that the first of several civil lawsuits has been filed.

We will continue to report on the Penn State scandal as it is apparent that this is the inception of what is certain to be a litany of criminal and civil lawsuits, with a wide range of legal issues to be resolved.

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For those of us who have represented the victims of serious New York car accidents over the last 25 years, the No-Fault threshold has proven to be a minefield of inconsistent and unfair results and decisions, particularly when comparing the decisions of Courts in the First Department, which includes Manhattan and the Bronx, with the Second Department, which is comprised of Brooklyn, Staten Island, Queens, and several suburban counties including Westchester, Rockland and Dutchess Counties. More specifically, decisions in Manhattan and the Bronx in cases in which the injured person has suffered injuries other than fractures (which automatically meet the “No-Fault threshold” and thus can be pursued in Court) are much more favorably received by the appellate Courts when the defendant makes a motion to dismiss than they are in the 2nd Department.

The No-fault threshold, which is defined in Section 5102 (d) of the New York State Insurance Law, requires a specific level of injury suffered in a car accident before a plaintiff can successfully commence a lawsuit for compensation. Injuries that automatically meet the no-fault threshold include a fracture, a disfigurement, a dismemberment, death, the death of a fetus, and a series of very specific type of soft tissue injuries which are subject to much interpretation and confusion. This latter group of injuries, including “a significant limitation of use of a body function or system”, and “permanent consequential limitation of use of a body organ or member”, are the specific problem areas, in which the same exact injury might be considered a “serious injury” which meets the no-fault threshold in the Bronx, but does not pass muster in the more conservative and harsh viewpoint of judges in the Second Department.

As a classic example, I have represented clients who suffered torn labrums or rotator cuffs, and had surgery as a result, who are determined to have a “serious injury” meeting the No-fault threshold in the Bronx, yet that same injury and surgery in Westchester does not qualify as “serious” in the view of the presiding judge. Further, herniated discs in the back or neck form the basis of a large percentage of defense motions to dismiss for lack of a threshold injury due to the legal uncertainty and inconsistency that surrounds cases involving these injuries. Ironically, an injury as potentially minor as a fractured pinky or toe without long term treatment is automatically a threshold injury, whereas a victim of a car crash with long term treatment for back or neck herniations could be facing a motion to dismiss their case for lack of a “threshold” injury.

In the last few years, the appellate Courts have added another onerous requirement to cases in which the injured person suffers soft tissue injuries, which the Court of Appeals, and specifically Chief Judge Lippman, has finally dispensed with as not required by Section 5102. That requirement was that the treating doctor for the victim immediately record specific findings of lost range of motion of the injured body part, whether it be an arm, leg, hip, back, neck, or ankle, and if there were no contemporaneous range of motion findings, the case would be subject to dismissal. This harsh result was the scenario in a trio of cases which the Court of Appeals decided to review, and in two of those three cases, the Court of Appeals reversed the dismissal and remanded the cases back to the lower Court for a trial by jury.

The three cases were brought by Joseph Perl, David Adler, and Sheila Travis and for purposes of this article, we are focusing on the first two cases. In the Perl case, Mr. Perl testified that as a result of his accident, he could no longer have marital relations, garden, or carry packages while shopping. Mr. Adler testified that he was having trouble lifting his children and ambulating. In both cases, the treating doctor conducted several tests upon his initial examinations, found that there was some restriction of range of motion and strength, but he did not quantify the lost ranges of motion that he observed in the examinations. However, several years later, the treating doctor did use instruments to document that both men had suffered specific, quantifiable losses of range of motion. As a result of the treating doctor’s failure to provide contemporaneous loss of range of motion, both cases were dismissed at the lower Court level.

Finally, at long last for practitioners in the field of automobile accident litigation, New York’s highest Court clarified the long held belief that the No-Fault statute does not require “a contemporaneous demonstration of restricted range of motion”, and noted that a qualitative assessment of the plaintiff’s condition will also suffice to meet the requirements, as long as this assessment has an objective basis and compares the plaintiff’s limitations to normal function. In music to the ears of plaintiff lawyers in auto accident litigation, the Court stated:

“We agree…that a rule requiring contemporaneous numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject rule that would make contemporaneous quantitative measurements a prerequisite to recovery.”

Our next objective is to lobby the New York State Legislature to expand the definition of a threshold injury to include herniated discs of the cervical or lumbar spine, torn tendons of the arm such as a torn labrum or rotator cuff, and tears of knee cartilage, ligaments or tendons such as a torn anterior cruciate ligament or torn meniscus.

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Earlier this year, over 125 former NFL players, including Mark Duper, Ottis Anderson, and Jim McMahon, filed lawsuits against the N.F.L. in Los Angeles Superior Court and the United States District Court in Pennsylvania. The basic allegations are that the NFL, as well as the helmet manufacturer Riddell, knew that repeated concussions would cause traumatic brain injury and long term debilitating cumulative effects, such as memory loss, dementia, depression, and what is known as CTE, or chronic traumatic encephalopathy. CTE is the more formal name for dementia pugilistica, or “punch drunk syndrome”, which was (not surprisingly by its name) a disease which used to be diagnosed in boxers after years of blows to the head. In CTE, which presently can only be diagnosed on an autopsy, the brain shows evidence of protein deposits called “tau” from damage to brain tissue from repeated blows.

The players have also claimed that in 1994, the N.F.L. authorized a study entitled “NFL Committee on Mild Traumatic Brain Injury” and that this investigation incorrectly resulted in findings that multiple concussions did not lead to chronic cumulative damage to the brain. Thus, the players argue, they were never warned that multiple blows to the head could lead to the devastation of memory loss, depression, mood changes, dementia and severe headaches, along with CTE. Alternatively they have claimed that the findings of the study were fraudulently concealed and that the NFL did have evidence from the study of the long term debilitating effects of repeated head trauma.

Tragic deaths of former NFL stars have brought the CTE issue into the forefront, including, most recently, that of Dave Duerson, a star defensive back for the 1985 Super Bowl champion Chicago Bears and later the New York Giants in their championship 1990 season who committed suicide in February of this year. Duerson was a successful businessman after his NFL career ended, but then began complaining to his family of headaches, blurred vision and a deteriorating memory in the months before his death. Duerson was so convinced that he was suffering from CTE that he shot himself in the chest, rather than the head, so that his brain could be studied by the Boston University Center for the Study of Traumatic Encephalopathy, Duerson’s suspicions were confirmed at autopsy when it was discovered that the Neuropathologist who examined his brain found indisputable evidence of CTE, with “no evidence of any other disorder.” Similarly, in 2002, Mike Webster, the hall of fame, four time Super Bowl Champion center for the Pittsburgh Steelers during their 1970’s heyday, died after years of anguish and cognitive dysfunction caused by damage to his frontal lobe from numerous concussions. Ironically, Webster was known during his playing career as an undersized, overachieving and disciplined ballplayer, who played for 17 seasons, yet he died after suffering from bad health, depression and having pled no contest to forging prescriptions to obtain Ritalin.

The players claim that their motivation for the lawsuit is threefold: to prevent present NFL players from suffering the same fate from repeated concussions; to implement a system by which players will receive the short term and long term medical care they need if suffering from brain injuries; and to obtain compensation for the injuries they suffered. The NFL’s defense is premised on the following: that the players knew of, and assumed any risks of injury when they played football; the NFL was not responsible for any of the injuries that the players suffered; and the appropriate forum for resolving the players’ claims, as contained in the collective bargaining agreement, is arbitration, not a jury trial.

Taking each of the NFL’s arguments in order, if I were arguing for the player’s in these cases, it seems clear that the original practice and thinking about helmet to helmet collisions and concussions was faulty. Routinely from the beginning of NFL history through at least the mid 1990’s, players and coaches would refer to severe collisions as “stingers” or “getting your bell rung.” If a team doctor was even summoned to check out the player, as long as he could answer a few rudimentary questions accurately, they would be allowed to remain in the game. There was tremendous pressure on the player to keep playing, particularly if the player was not a star and could be replaced.

The second argument by the NFL that the league is not responsible for the spate of injuries and deaths of former players is belied by recent changes that the NFL has now made in recognition of the clear evidence otherwise. Players who commit helmet to helmet penalties are now subject to suspension and fines. A player who suffers a concussion is not permitted to remain in the game under the new “return to play guidelines” implemented in 2009. Certainly, if that 1994 study did in fact warn of the dangers of repeated concussions and these warnings were concealed by the NFL, this would create significant liability problems for the league.

Lastly, it is blatantly obvious why the NFL would want to keep these cases in an arbitration setting. If a jury believes that the NFL concealed or lied about evidence of long term effects from repeated concussion or head injuries, there could be huge verdicts which would likely be more substantial that any potential arbitration determination.

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In the wake of the most recent fatal bus accident on May 31 on a Virginia highway, U.S. Transportation Secretary Raymond LaHood criticized the Federal Motor Carrier Safety Administration (FMCSA), the Department of Transportation agency in charge of bus and truck safety, for failing to shut the bus company down. Essentially, LaHood was taking his own department to task regarding the latest tragic bus accident, in which a Sky Express bus on its way to Chinatown in Manhattan rolled over, killing four people.

The company, Sky Express of Charlotte, had a history of substantial safety violations, and had received an unsatisfactory safety rating on April 12, 2011. However, based on FMCSA rules, Sky Express had received an extension to continue operations while the investigation of its safety record continued, although the company could have been shut down on May 28, 2011, three days prior to the fatal crash in Virginia.

Mr. LaHood has been pushing for increased bus safety measures, including seat belts for passengers, sturdier roofs and windows that would prevent passengers from being ejected in a rollover. Additionally, LaHood put forth a plan in 2009 to reduce distracted driving and fatigued bus drivers. There have been a spate of horrific bus accidents in 2011, including the bus that rolled over on March 12 on I-95 in the Bronx, with the roof being sheared off and 15 passenger deaths, the fatal accident two days later on the New Jersey Turnpike, killing 2 and injuring 41, and more recently, another fatal accident in Cle Elum, Washington, which killed two and caused many injuries. LaHood stated: “There is no excuse for delay when a bus operator should be put out of business for safety’s sake…on my watch, there will never be another extension granted to a carrier we believe is unsafe.” Unfortunately, this pronouncement came a little late for the victims of the Virginia, New Jersey, Washington and Bronx crashes, but hopefully the increased attention from the Department of Transportation and Congress will finally result in some concrete safety measures to protect bus passengers in this country.

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We have several written articles recently about the dangers of distracted driving, which has led to numerous fatal accidents and serious car crashes, and has become a huge safety issue with people continuing to text after they start driving their vehicles. Now the federal government has decided to get involved. On January 26, 2010, the U.S. government officially banned truck drivers and bus drivers from sending text messages while driving, in a move that was widely supported and promoted by trucking and transportation companies.

U.S. Transportation Secretary Raymond LaHood has made the reduction of distracted driving a priority of his tenure. 19 states previously banned texting while driving, and late last year, New York made texting while driving a secondary offense, by which drivers can only be charged with texting while driving if they are also committing another traffic infraction such as speeding or disregarding a traffic control device. New York Senator Chuck Shumer noted that the ban is “a giant step forward for safety on our roads, but we must do more…” Shumer was referring to a push in Congress to ban texting while driving in cars and mass transit, which has reportedly faced opposition by wireless carriers and the mobile phone industry.

Drivers of commercial vehicles caught texting while driving could face fines of up to $2,750.00. A study by the Virginia Tech Transportation Institute released last year found that truckers were 23 times more likely to be involved in a car crash or close call when texting while driving. The Federal Motor Carrier Safety Administration found in their study that texting drivers take their eyes off the road for an average of 4.6 of each 6 seconds, which at 55mph would have their vehicles traveling a complete football field without the drivers looking at the road!

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