Bystander's Recovery

     Negligence can cause injury or death for those who fall victim to unfortunate accidents. Elevator malfunctions, car accidents, and other accidents involving machinery can happen because an owner or operator of that technology did not take the proper care to ensure the safety of others. When someone is injured or killed because of this, their family members suffer greatly. This suffering is made worse when a family member is physically close to the victim during the accident and sees the damage as it is being done. In these cases, such a family member would be considered a bystander.

     Typically, bystanders who see someone become injured cannot take legal action against the cause of that injury as they were technically not involved in the accident. Usually, in terms of receiving compensation only the person injured can take legal action and receive payment for their damages. Fortunately, this is not always the case. Bystanders are able to gain compensation if they were in a zone of danger during the accident.

     Zones of danger are areas around the victim in which one becomes truly fearful for their own safety and becomes emotionally distressed upon seeing or hearing the accident takes place.

     For example, let’s say you are driving your mother to a doctor’s appointment when another vehicle hits your car. The car becomes badly damaged and you suffer a leg injury. Your mother is there with you in the car when the accident takes place and she sees that your leg has been hurt. She herself was not injured, but the experience of the accident causes her emotional distress.     

     In this example, you were the victim of the accident, the car became the zone of danger, and your mother was a bystander. Because she suffered emotional distress at seeing your injury as it took place, she could take legal accident against the negligent driver for compensation. 

     The Zone of Danger applies mainly to car accidents; however, there are other situations where it may be used as well. These include: elevator-related injuries, assaults, and house fires. Taking legal action based on the zone of danger has the following requirements

•  Due to the defendant’s negligence, an unreasonably unsafe zone was created in which one might expect bodily harm to occur.. 
• The plaintiff observed an immediate family member become injured due to this negligence.
•  The plaintiff suffered emotional distress due to fear or shock because the accident took place.

     Let’s use our car accident example again. The person who hit your vehicle with theirs owed you a duty of care to observe the road properly and they did not. This created a zone of danger where someone might expect to be hurt. Your mother, an immediate family member, is there with you to see the accident, and in seeing her son get injured, she becomes emotionally shocked and fearful for her own safety. This example meets the requirements for a zone of danger claim.

     If you have any questions about the zone of danger or have experienced it for yourself, contact Poissant, Nichols, Grue, and Vanier at:

Phone: (518) 483-1440

Toll Free: 1-800-924-3529

     

We have offices at:

45 Market Street Potsdam, NY 13676

367 West Main Street Malone, NY 13676

     Please be assured that whether you live in Malone, New York; Plattsburgh, NY; Canton, NY; Potsdam, NY; Saranac Lake, NY or anywhere else in Northern New York, we can come to your home and meet with you if it is inconvenient for you to come to our offices.  Then, you will see on some previous blogs a picture of our firm.

-Paul Nichols

             

Use Your Right-of-Way The Right Way

     When you were a child, your parents probably told you to look both ways before crossing the street. Since you’re sitting here reading this, you probably took their advice as a child, but what happened when you got older? Did you discover that crosswalks were made specifically for people who wanted to cross the street? Did you pay attention to crosswalk signals and rely on them to keep you safe on your journey? We are all busy people, and taking those extra five seconds to look to the left and right before crossing the street may seem silly when there is a flashing crossing signal telling you that it is safe to walk. That being said, remember your parents’ teachings and take those seconds into consideration. Even as an independent adult, it is still very important to, you guessed it, look both ways before stepping off the curb.

    Many people think that as pedestrians (people who cross the road instead of drive on it,) they have the right of way to get to their destination before the driver of a car makes his or her move. One might also believe that if they are hit by a car while crossing the road, the fault is entirely that of the driver. Are these statements similar to what you believe? An article written by Robert S. Kelner and Gail S. Kelner in the New York Law Journal addresses the issue of pedestrian and driver liability at intersections. In their work, they present some areas of the law that might surprise you.

    For starters, think of right-of-way in terms of priority. Basically, it designates who should go first, a pedestrian or a driver. The right-of-way doesn’t just belong to someone crossing the street. In certain situations, a driver has the right of way. To stay on the safe side, always cross at a marked crosswalk or intersection whenever possible. When you cross in those areas, you do have the right-of-way and drivers must stop or yield to let you cross. However, when someone crosses the street anywhere other than a marked or unmarked crosswalk, the right of way belongs to the driver.  This doesn’t mean you should just strut out into the road wherever there is a crosswalk. As a pedestrian, the law states that you must show due care before crossing. This includes looking for oncoming traffic before crossing the street. If you do not take the time to check your surroundings and get hit by a vehicle, the driver may be able to prove that you were negligent when walking. If they are able to do this, you may not be compensated for your injuries.

    There have been cases where drivers have turned a corner and hit someone who did not look in their direction before leaving the sidewalk. In those cases, the pedestrian was considered comparatively negligent, meaning they were also at fault for the accident.  A pedestrian who is comparatively negligent can still be awarded damages, but the damages are reduced by the percentage that the pedestrian is found to have contributed to the incident.  To avoid such problems, look to both your left and right before crossing the street. It does not satisfy your duty of care to simply glance in one direction and walk forward.

    It is important to keep in mind that not all crosswalks are marked. You also have the right-of-way at the corner of a four-way intersection where the roads run perpendicular to each other in such a way that the corners of the sidewalks like up with one another. Even thin, you still have to look both ways before moving forward.

     You are not required to look behind you when crossing the road as this is considered to be unsafe. It is assumed that if a vehicle is approaching from behind you, the driver should see you before making a turn or driving across an intersection. To put it plainly, you have your job to secure your own safety by looking to the left and right before crossing, and at the same time a driver must fulfill their obligations as well. These include: keeping their vehicle in appropriate condition, maintain a proper lookout, and be aware of people and objects within their field of view. In this way, the responsibility of safety is shared between the two parties. If one fails to show due care, severe injury and loss can occur.

    If you have any questions concerning pedestrian safety and compensation, or if you or a loved one have suffered a related injury, please contact Poissant, Nichols, Grue, and Vanier at (518) 413-1440.  We have offices in Potsdam, New York and Malone, New York.

Summer Fun and Accidents

If you attend the Daytona 500 race this year, you will see language on the back of your ticket that says:  

The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.

This language, called a "disclaimer", seeks to avoid lawsuits even if the employees working the event are careless and cause you physical damage or property damage.

This type of disclaimer language is unfair.  New York State has a law against them.  If you buy a ticket that has a disclaimer on it that tells you, in effect, that if you are hurt -- even because some employee was careless or negligent -- it is of no effect.  That means that in New York no matter what the language states on the back of the ticket, you may bring a claim against "...the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment ... for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees."  (NY General Obligations Law 5-326)

Most people assume that because the disclaimer is on a ticket, that you're out of luck if you get hurt at any facility for which you have paid a fee.  Simply put, you may bring a claim for damages you have sustained if you paid a fee to get into the place and the owner or some employee, (or agent), was careless.

What brought this up in my mind recently was reading a decision by Judge Robert J. Muller, a Judge of the Supreme Court in Boland v. Riding High Dude Ranch, Inc.  In the Boland case, a novice horse back rider fell off her horse.  The defendant dude ranch wanted to introduce into evidence the language of a "written horse rental agreement and general release" that disclaimed any liability and claimed that the defendant could not be sued.  Conceding that the language could not prevent the lawsuit, the dude ranch argued that the language should be introduced as it would somehow show that the injured horseback rider knew the risks associated with horseback riding.  (Here, at issue, was a risk not so well known outside the horseback riding community:  if you do not cinch the saddle onto the horse properly the saddle might slip right around to the side and the rider will fall.  Horses are tricky.  If they know a saddle is being put on them they expand their chest so the saddle is not on too tight.)

Judge Muller, (pictured left), ruled that no mention of the language of the dude ranch's disclaimer should be mentioned at trial.  This is a just result, as the disclaimer language in these tickets, rental agreements, and notices that seek to absolve careless people from negligence is against public policy.  Moreover, in my opinion, if the language were allowed to be placed into evidence it would make the statute, General Obligations Law 5-326 useless.

But, I do have to give great credit to Matthew Kelly, who represented the dude ranch.  It was a clever argument:  that the unenforceable language could still be used to show the injured person's awareness that saddles loosen and riders fall.  However, I am glad that his argument did not win the day.

If you or a loved one have been injured while having summer fun, give us a call and we will meet with you at no charge to help you.
1-800-924-3529.  We can meet you at offices in Plattsburgh, New York; Malone, New York, or Potsdam New York.  We can also go to your home or any other convenient place if you have difficulty travelling.

Snow, Ice, Slip, Fall -- What To Do?

One of the most harrowing accidents, particularly the older we get, is the "slip and fall" on ice.  Most people who fall and get serious, long-lasting injuries, are angry and embarrassed at the same time.  I also think that most people who fall on ice never go to see a lawyer to see what, if anything, can be done.  Some people do not want to put up with the perceived hassle of dealing with the courts and with a lawyer; others do not want to "sue a friend" if they fall on a neighbor's porch or premises; and others feel that it must have been all their fault.

Tom Grue is a very talented and committed lawyer.  He is originally from Champlain, New York and is a partner in our law firm, Poissant, Nichols, Grue and Vanier.  Tom helped the family of a fifty-four year old village police officer who exited his vehicle in a parking lot in Massena, New York, hit his head causing a very severe head injury that resulted in the man's death.  

Though the defendants blamed our client for not watching where he was going, and though the defendants (parking lot owner and the municipality), denied that they had any responsibility for our client's injury and death, Tom was able to through the use of experts in the field of parking lot construction and maintenance and a big dose of common sense,negotiate and mediate an agreement where the defendants paid our client's widow $850,000.  It was good hard work by Tom Grue combined with his tremendous legal skill and knowledge that helped our client's widow to achieve a measure of justice and security.

So, whether you live in Gouverneur, Canton, Potsdam, Ogdensburg, Massena, Tupper Lake, Malone, Saranac Lake, Ellenburg, Chateaugay, Plattsburgh, or even Tom's home town of Champlain, New York, and you had a fall on snow or ice this past winter season, give us a call at 1-800-924-3529.

Older Drivers -- To Drive or Not To Drive

The New York State Department of Motor Vehicles has the authority over the issuance or suspension of a driver's license.  Believe it or not, there does not exist any specific rules pertaining to drivers based on the age of the driver.  While some other states have rules and regulations for older drivers, New York State is silent.  In some states, should a driver of advanced years seek a renewal of their license, they might have to submit to an actual road test; a vision test or maybe more frequent renewal periods.

In New York, license renewal is required first, five years after the first license and then every eight years after that.

But New York State's Vehicle and Traffic Law does have a catch-all:  "If the Commissioner [of Motor Vehicles] has reasonable grounds to believe that a person holding a license is not qualified to drive a motor vehicle, the Commissioner may require such person to submit to an examination to determine their qualification."

While there is no mandate to report someone to the Department of Motor Vehicles, typically, such reports come from physicians, police or concerned family members.  If you are a family member who has concerns about the abilities of an elderly driver suffering from poor and uncorrected vision, dementia or related cognitive conditions, or just plain bad driving, you can report to the Department of Motor Vehicles on a form DS-7.  A physician may make a report to the DMV on form DS-6.

There is no definitive standard to prove or disprove that an elderly person should have his or her license revoked.  Family members are very reticent to contact the DMV to have a mother, father, aunt or uncle or grandparent approached by the Department of Motor Vehicles and have their license revoked.  There is a tremendous loss of control and elderly driver necessarily confronts once the license is lifted.  Social contacts and independence becomes a challenging way of life without the freedom that driving one's own car brings.

Moreover, physicians in New York State are seemingly under added pressure to report obvious cases of elderly drivers who are incapable of driving but still choose to drive.  Recently a Court of Appeals case, Davis v. South Nassau Community Hospital found that a medical professional was liable to the public at large.  Similarly in the State of California an 85 year old woman was driving and steering her car into oncoming traffic.  The doctor treating her for dementia did not contact California's DMV about the dementia.  The family brought suit against the doctor for failing to take action against the driver's license of the 85 year old.

Our firm can assist you if you have been hurt by a driver who just should not have been in control of a car.  We serve Northern New York State, which includes Watertown, Massena, Canton, Potsdam, Tupper Lake, Saranac Lake, Malone, Chateaugay, Plattsburgh and all villages in between.

As a proud card carrying member of AARP, I'd suggest that if you or a loved one, or a patient or a friend have doubts about someone's ability to drive you read this fine article by clicking on this link:

http://www.aarp.org/home-garden/transportation/info-05-2010/Warning_Signs_Stopping.html

Joe Nichols

Suing Lawyers -- Legal Malpractice

Legal Malpractice:  the breach of duty of care by a lawyer that damages a client.  

If you feel that you have been victimized by legal malpractice it is no time to abandon the legal profession and give up.  You should see an attorney, as counter-intuitive as that may seem.

The legal profession is unique in its determination and effectiveness in cleaning up the profession, something attorneys should be very proud of that.  The various Bar Associations throughout the State of New York have grievance  and the Committee on Professional Standards operates through the four Appellate Divisions of New York State to protect the public from unethical attorneys.  These committees not only seek to protect the public, but also to deter attorney misconduct and preserve the reputation of the attorneys throughout the state who work hard and ethically for their clients.

If you are the victim of legal malpractice and have suffered financial loss, one of the things you may want to consider is to contact the Lawyer's Fund for Client Protection.  You can e-mail them at info@nylawfund.org or call them at 1-800-442-3863.  These matters are held in a very personal and confidential manner.   

Victims of legal malpractice should also consult with an attorney.  The attorney will review with you what went wrong in your legal representation.  For example, if your attorney failed to file an action before the expiration of the statute of limitations, you may have an action in legal malpractice against that attorney.  Basically, you have to prove that your previous attorney failed to file your action in a timely fashion; that your case was a meritorious case, and that you suffered damages.

But what if your previous attorney, rather than simply making a careless mistake, misled you?  In that instance, a client may claim a violation of New York State Judiciary Law 487.  If the attorney was "guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party" that attorney is not only guilty of a misdemeanor, he will also be obligated to pay "treble damages", that is three times the damages that you can prove you sustained by reason of the misconduct of the attorney.

As always, the best way to find out whether you have a case is to call us and set up an appointment.  Your first consultation will be free of charge.  Call us at 1-800-924-3529.  Many of you know that we have offices or can meet you in Canton, New York; Potsdam, New York; Malone, New York; Plattsburgh, New York and the entire Northern New York State area.

From Left:  Tom Grue, Steve Vanier, Luke Babbie and Joe Nichols

What Happens If You Die Without a Will??

What happens to your property if you die without a will?  Our advice is always to make an appointment with an attorney and have a will done for the benefit of your family and for your peace of mind.

So, just what does happen to your house, your things, your money, all the things you have spent a life time building up, if you die and neglect to have a will drafted by an attorney?

Contrary to popular opinion, your estate will not go to the State.

Our Estates, Powers and Trusts Law in New York State gives a road map to the family by setting forth the persons qualified to share in the estate of a deceased relative.  When a person dies without a will they die "intestate".  When a decedent dies intestate, her property will pass to relatives in the following order:

1.  If survived by a spouse and children, the spouse receives the first $50,000 and one-half of the rest of the estate.  The children share the other one-half of the balance.  

2.  If survived by only a spouse and no children, your spouse receives everything.

3.  If survived by only children, the children equally share everything.  

4.  If survived by only parents, the surviving parent or parents receive everything.  Your brothers and sisters do not take anything unless both parents predecease the deceased intestate.

5.  If survived by only siblings and/or children of deceased siblings they share in the estate with children of deceased siblings sharing in a special way called "representation."  

The facts of each persons circumstances are very different.  For example, if you own your house with a spouse, the house will not go into your estate, but will pass automatically to your spouse upon your death.  Generally speaking, the same happens to joint bank accounts and other investments or funds held jointly.

It is always wise to consult with an attorney, ask a lot of questions and get a lot of answers about how you can plan for the distribution of your property after your death.  Other related questions will include how to try to protect your property should you need long-term care such as nursing home care or residence in an "assisted living" facility.

The point is that you will experience peace of mind and protect your family if you spend a few minutes with a qualified attorney.

Joe Nichols

From Left:  Tom Grue, Steve Vanier Luke Babbie and Joe Nichols