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In New York, in order to win a case when you are injured in a slip/trip and fall accident, the most important factor is proving “Notice.” Notice is the legal term which means knowledge by the defendant supermarket, shopping mall, department store, other place of business, or municipality, that a particular dangerous condition existed for a period of time, and the failure of that business owner or municipality to repair that condition despite their prior knowledge.

There are two basic types of Notice which can be proven in a dangerous premises case in New York. The first is “Actual Notice.” Actual Notice is defined as knowledge which was provided to the defendant by informing them before the accident by way of a writing or conversation, that the dangerous condition existed and needed to be repaired. For example, in a Bronx trip and fall accident, before a case can be brought against the Bronx municipality, you must prove that they were warned of the broken section of the sidewalk and failed to make repairs. This is the reason that fall down accidents are so difficult to prove against municipalities–What are the chances that someone actually wrote a letter to a municipality before your accident informing the municipality that the sidewalk was cracked or not level? One advantage that we have in prosecuting cases against the 5 boroughs of the Bronx, Brooklyn, Queens, Manhattan, and Staten Island, is the Big Apple Pothole Corporation. Essentially, what Big Apple does is chart every sidewalk in the city for defects, and then send maps to the City of New York of these specific defects, which can then be used in court to legally prove notice. Unfortunately, Big Apple’s reach does not extend past the five boroughs into the suburbs or rural New York to protect the victims of municipal negligence there.

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When clients come to our office after having suffered injuries in a New York car accident, often their car has been totaled by the insurance company, and no photographs were taken of the damage to their vehicle. This presents two major obstacles to a successful resolution of the case. First, when attempting to resolve the claim with the insurance company, New York insurance adjusters rely heavily on visual proof of the damage to the car to determine the severity of an automobile accident. Thus, taking photographs of your car with a cell phone (not optimal but if that’s all you have, use it!), digital camera or plain old Polaroid are absolutely essential to a quick and proper settlement of your case.

Further, if the case is going to trial due to an insufficient offer or no offer at all from the insurance company, those photos showing the smashed in hood or crushed fender go a long way in convincing a New York jury that your injuries were caused by this car accident, and not a degenerative spine or a fender bender twenty years ago.

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As an update to our October 19, 2007 report, a second review of Playland Amusement Park in Rye, New York is not nearly as favorable as the initial report. H. Harold Hudson, a consultant retained by Westchester County Executive Andrew Spano, has determined that although ride operators performed their duties in an “efficient and proficient manner”, there are noticeable improvements that are needed to improve safety at the New York landmark. Clearly, in the wake of the third fatal accident at Playland since 2004, there was a general concern that Playland had become dangerous premises in New York.

Mr. Hudson noted the following:

1. On many of the larger rides, there were too many ride operators, creating an atmosphere in which operators were socializing with their co-employees more than focusing on their ride responsibilities;
2. At shift time, confusion and uncertainty “crept in”, leaving “large gaps in ride operator’s attention to their ride duties”;
3. Security officers were observed spending large amounts of time socializing rather than paying attention to what was going on around them;

4. Operators were observed jumping on and off the carousel platform while the ride was operating at full speed.

This latter observation is of particular concern in light of the tragic death of park employee Gabriela Garin back in June of 2007, who was killed on the “Mind Scrambler” while allegedly not seat belted, and purportedly standing up while the ride was at full speed. In addition, as Ms. Garin was on duty at the time, park rules forbade Ms. Garin from being on the ride at the time of the fatal accident. There is also an open issue as to why the other ride operator started the ride knowing that Ms. Garin was not supposed to be on the ride and was not buckled into her seat.

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The National Highway Traffic Safety Administration (NHTSA) has released its annual report analyzing motorcycle helmet use throughout the United States. Helmet usage in the northeast has increased from 47% in 2006 to 58% in 2007, which unquestionably reduces fatalities and personal injuries suffered in New York motorcycle accidents.

Helmet use is highest in the western United States, with 77% wearing helmets, and lowest in the Midwest, with only 49% using helmets. Rural motorcyclists wear helmets 55% of the time, whereas suburban riders’ usage is 66%. Additionally, usage is lowest on the weekends, at only 54%. The study was performed at 2000 sites across the United States on statistically sampled roadways between 7:00 AM and 6:00 PM.

Amazingly, only 20 states in addition to New York require helmet use, which reduces deaths and prevents serious injuries in motorcycle accidents.

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When clients come to our White Plains, New York office after suffering personal injury, the first question they ask is the same: “Do I have a injury case or don’t I?” The answer to this question revolves around three basic issues, as well as some other considerations which may be significant. The first question that we need to determine is liability, otherwise known as fault. To use a few examples, in a New York slip and fall case against a homeowner, we must be able to establish that: the sidewalk was in fact broken; or that there was no lighting on the stairway, or that there was ice on the driveway which had not been cleared for some time. In a New York motor vehicle accident case, examples would include establishing that: that the client had the green light; that the other driver failed to stop or yield at an intersection, or that the other driver was driving recklessly or speeding.

The second issue is insurance coverage. In motor vehicle accident cases, there are numerous questions to be asked. Does the other driver have sufficient insurance coverage? Is there the possibility of an insurance company disclaimer due to non payment of premiums, or is there the use of a vehicle which is not covered by the policy–i.e.–was the other driver using his or her vehicle for work purposes when it was only insured for personal use? If the other driver was uninsured or underinsured, does the potential client have underinsurance coverage which protects them against an uninsured/underinsured wrongdoer?

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Joe, a 32 year old Westchester County resident, is driving his 2008 Lexus to meet friends in New York City. On his way south on the F.D.R. drive, he is in a serious car accident with a New York City taxicab with a minimal liability insurance policy. Joe is taken to the hospital with serious back injuries, and ultimately is diagnosed with several herniated discs requiring an operation. Although the taxi company has offered their entire policy, Joe’s injuries are in all likelihood permanent, and even with his own no-fault insurance company paying for the surgery, how can Joe be fully compensated for his injuries in this scenario?

Underinsurance is defined as insurance coverage which protects the driver of a car who is injured by the negligent driver of a car which has minimal insurance coverage, such as a $25,000.00 policy. $25,000.00 is now the minimum required insurance coverage in New York State. Underinsurance coverage allows the insured driver to proceed to recover additional compensation against his or her own insurance company after he or she has collected the policy limits of the negligent driver’s car. The main proviso is that the wrongdoer vehicle must have a smaller amount of insurance coverage than the insured who wishes to collect against his or her own underinsurance coverage.

Underinsurance is a vitally important provision of automobile insurance coverage in New York, and it is shocking how few of our clients actually purchase this coverage when they buy a car. In New York, for only a few hundred dollars a year, coverage of up $500,000 in underinsurance can be purchased to protect against the exact scenario Joe finds himself in. The way it works is this. If the wrongdoer vehicle has a minimal insurance policy-i.e.- $25,000, and your injuries far exceed this amount, the case is settled with the negligent party for their policy limits. With notification of the accident promptly to your own insurance company and their permission to enter this initial settlement, we then proceed to commence a claim against your own insurance company under the underinsurance provision of your policy for the maximum amount of this coverage. This would be reduced by a set off of the amount you already received from the negligent driver’s company. Thus, for example, if there is a settlement of $25,000, and you have $500,000 in underinsurance coverage, there is potentially $475,000.00 in underinsurance available to you to ensure that your injuries are fully compensated.

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According to a study by the Rand Corporation, drivers over the age of 65 are two-thirds less likely to be in a car accident than drivers between the ages of 18-25. Further, the oldest drivers are only 16% more likely to be in an automobile accident than drivers between the ages of 26-64, which was a much smaller difference than is commonly believed.

Though older drivers have slower reflexes and deteriorating skills that woudl certainly make them more likely to be in a car accident, they compensate by avoiding riskier driving conditions, and many stop driving when their skills and senses become too impaired. However, older drivers are much more likely to die in an automobile accident than younger drivers, because they are frailer.

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Despite a string of fatal accidents at Westchester County’s Playland Park, including two on the “Mind Scrambler” in the last three years, a safety consultant has found that conditions at the amusement park have actually improved dramatically in that time. Jerry Aldrich was hired by County Executive Andy Spano to conduct an audit of the park after the June 29, 2007 death of 21 year old park employee Gabriela Garin on the “Mind Scrambler.”

Westchester County officials have contended throughout the summer that the amusement park is safe. Although Aldrich’s report did not directly address Ms. Garin’s death or the other fatalities, he suggested that County officials were correct in their contention that the accidents were beyond park managers’ control. Previous reports by the New York State Labor Department and the Westchester County Police faulted the Mind Scrambler ride operator for starting the ride even through he knew Ms. Garin was not properly seated, and Ms. Garin herself for taking a ride while on duty and not properly seating herself.

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The fatal auto accident this past July involving a truck driver and a speeding motorist have brought on renewed calls for stronger traffic enforcement on the New York Tappan Zee Bridge. According to the police investigation, the driver of a 1995 Mitsubishi was driving recklessly and struck the rear of a tractor trailer driven by Ricardo Riveros. The impact of the accident caused the truck to swerve across several lanes of travel, break through 270 feet of concrete barrier before flipping over and exploding into flames on the other side of the bridge, killing Mr. Riveros. This tragic accident has resulted in calls for more traffic enforcement on the Westchester County and Rockland County sides of the bridge, as well as the installation of cameras which could track the rate of speeding drivers.

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For the last six decades, insurance companies have enjoyed immunity from federal anti-trust investigation and prosecution. On February 15th of this year, Senator Leahy (D. Vermont) announced a bipartisan bill that would give the Department of Justice and the Federal Trade Commission the authority to apply antitrust laws to anti-competitive behavior by insurance companies. The insurance industry and its practices have come under serious scrutiny along the Gulf Coast in the wake of Hurricanes Katrina and Rita, said Leahy, who has raised concerns that insurers have been denying claims and delaying payouts to residents along the Gulf Coast instead of honoring their contractual commitments to their customers and helping rebuild that region.

The concern of our legislators in introducing this bill is that by allowing the insurance industry to avoid the scrutiny of anti-trust regulation, this has led to price fixing, agreements not to pay, and market allocations. Americans rely on insurance, and they have the right to be confident that the cost of their insurance, and the decisions by their insurance carriers about which claims will be paid, reflect competitive market conditions, and not private agreements among major insurance companies to deny groups of claims.

Senator Trent Lott, not normally associated with issues such as consumer protection, noted: “One thing I learned coming out of Katrina is that the insurance industry is not subject to antitrust laws,” Senator Lott said. “I’ve looked at the history, and there’s no explanation for why that is – for why antitrust and price fixing in this industry are not covered by the federal government. In this regard, two of the area’s biggest home insurers – Allstate and State Farm – are moving out and abandoning the area. They are not moving out because the companies have hit on hard times — State Farm profits increased 65% in 2006 with earnings of $5.3 billion and Allstate’s 2006 profits rose to a record $5 billion, nearly tripling its profits from the year before.

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