Sidewalk, Stair, and Curb Maintenance

     Sidewalk and stairway maintenance is a constant and worrisome activity, especially in northern parts of the country such as New York State. Snow and ice in the winter combined with weeds and rain in the summer cause damage to our sidewalks. Cracks and changes in sidewalk elevation should be monitored from year to year. We should do this to keep others from tripping, falling, or otherwise injuring themselves on our property. Sometimes, however, even a tiny crack or bump in the concrete can cause someone to injure themselves. So what can be done to protect people who do carefully maintain their property from a lawsuit? Defenses against sidewalk defect-based lawsuits are discussed in a New York Law Journal article written by Robert S. Kelner and Gail S. Kelner.

     A sidewalk defect could indicate anything from a clump of weeds growing in between panels of concrete to an elevated slab. When a sidewalk defect becomes the cause of an accident, the court must decide whether the defect is trivial or actionable. A trivial defect is one that is not significant enough to have caused an accident under normal circumstances; an actionable defect is the exact opposite. 

    So how does the Court decide whether a sidewalk or stair defect is trivial or actionable? A person might guess that the size of the defect determines its status. The bigger the defect, the more potential it has to cause harm, right? Actually, size is just one of several factors that the Court uses to make their decision. The size of the defect alone is not sufficient enough to determine whether it is actionable. There is no minimal size requirement for a defect to be considered either actionable or trivial.

     Along with size, the Court also considers the width, depth, height, irregularity, and visibility of the defect in question. The defect’s surroundings must also be examined. Some environmental factors can worsen the effect of the defect should someone be injured by it. If a defect is difficult to see due to its location, it may be actionable regardless of its size.

     Think of two curbs: one on a residential road somewhere in a small town in the North Country and one on a busy street in the city of Plattsburgh, New York. There are few street lights in the residential road, and so the curb there is poorly lit. The residential curb is also starting to crack and crumble due to many harsh winter seasons. The curb is elevated from the street unevenly and is in need of repair. By contrast, the curb in Plattsburgh is well lit and is maintained regularly. However, this curb has a sharp unmarked edge and is at a greater height than the sidewalk beside it. This section of Plattsburgh also experiences large amounts of traffic.

     Which of these two curbs is likely to be considered a dangerous defect by a reviewing court? The answer is both. Even though these curbs are found in to different environments, there are factors that make each one dangerous. The residential curb is rough and badly lit which may cause someone to stumble and fall. The Plattsburgh curb has a sharp edge at an odd height from the ground and even though it is regularly worked on, it is not marked and a pedestrian may not notice its height do to the heavy traffic. In this example, the height, illumination, condition, and environment for each curb were considered; size was not, but could have been.

     Another why in which the Court analyzes defects is based on whether they could be avoided. If a person could easily avoid a defect while walking like a normal human being, it may be considered trivial.  

     Property owners should always inspect their sidewalks for defects that could cause pedestrians to be injured. If a significant defect is found, it should be taken care of as soon as possible. If it cannot be fixed immediately, it should be marked so that pedestrians can avoid it. Property owners should also consider how their property is lit.

     Contact your local government for curb and sidewalk maintenance or the placement of street lighting around your property. Municipal governments are responsible for fixing roads, curbs, and sidewalks that are used publically, along with the residential owner under certain circumstances. Moreover, in regard to village and city sidewalks, the village and city can be found liable only if a specific notice has been delivered to that municipality describing the defect. That notice of the dangerous defect must be sent prior to the accident. So if you do see a dangerous defect or condition in a sidewalk or curb that you think is going to cause an accident and harm someone, take a few minutes and notify the village or town clerk or the city clerk to help protect others. This notification should be in writing.

     

     For more information about the legal implications of sidewalk or stair defects, or if you or someone you love has been injured due to such a defect, contact Poissant, Nichols, Grue, and Vanier at:

367 West Main Street                                                                        45 Market Street

Malone, New York 12953                                                                 Potsdam, New York 13676

Phone: (518) 483-1440

Toll Free: 1-800-924-3529

-Joseph Nichols

-Paul Nichols

3-D Printing: A Blessing and a Curse

     3-D printing (also known as additive manufacturing) is a relatively new and exciting development in the manufacturing world. While a normal printer can take a document and translated it to ink on a page, a 3-D printer can read three-dimensional digital models and physically form them by adding layers upon layers of different materials including; plastics, metals, or even flesh. The idea that an object of any shape can be created this way opens the world of manufacturing to new possibilities; however, as with any technology, it can be used to break the law. In a recent New York Law Journal article, James A. Johnson expresses both his appreciation and apprehension concerning this new form of production.

     The use of 3-D printing ranges from making children’s toys to practical tools for the workplace. Once a single digital model is obtained, multiple copies of the same object can be printed. Even now, the use of 3-D printing has been extended to the medical field. University of Michigan Researchers used the technology to produce surgical implants for the human body. A company by the name of Organovo developing the technology further in the hopes of producing living and functioning human organs to be used for transplants. They would do this by using 3-D printers. The printer does this by applying layers of living tissue rather than inanimate material. If the tissue is sampled from the patient, there would be no chance of rejection later in their life. Simply put, this technology could save lives that would otherwise be lost.

     While 3-D printing may seem like it can only help the manufacturing and medical world, it could be used for unethical practices as well. Again, the only guide that a 3-D printer or a group of 3-D printers needs to continuously produce something is a single digital file of the required object. Digital models can be made when an item is scanned by a 3-D scanner. This leaves an opportunity for copyright infringement as patented objects could be scanned and copied by rival companies. Some might take such patented material and illegally modify and sell it without the original manufacturer’s consent. As the ever-changing flow of information and files over the Internet continues, it shall become more and more difficult to protect one’s content or intellectual property. It is equally difficult to police items that are sold online, especially if they appear to be legitimate instead of copies of an original.

     For practical reasons, it is always a good idea to patent anything that is your original work or idea. This does not only affect large corporations, but small businesses as well. There may come a time when the ethics of 3-D printing are called into question.

     If you desire to protect your intellectual property or have questions concerning patents or copyrights, contact Poissant, Nichols, Grue, and Vanier for more information at:

367 West Main Street                                                             45 Market Street

Malone, NY 12953                                                                 Potsdam, NY 13676

Phone: (518) 483-1440

Toll Free: 1-800-924-3529

-Paul Nichols

What You See Isn’t Always What You Get: The Eyewitness Problem

     If our memories were perfect, we would never need to study, we would never have to prepare grocery lists or write down someone’s phone number. Unfortunately, these are activities that everyone does constantly throughout their lives. It comes as no surprise that when the average person is asked to remember specific details from a past event, their memory falls slightly short of the truth. Eyewitnesses are important and can provide details to a case that would otherwise remain undiscovered, however; it is important to keep in mind that the human memory is not perfect. Even worse, if we suffer gaps in our memory, we tend to fill that empty space with details that make sense to us, but may not be true.

     In a New York Law Journal article written by Florina Altshiler, she discusses the pros and cons that Eyewitnesses bring to a trial. The article brings up several key points that describe the situations eyewitnesses find themselves in and how their memory is affected by each.

     First, consider the potential cases in which an eyewitness are considered to be valuable. Cases involving car accidents, shootings, assaults, or robberies may occur quickly and under extreme stress. A person witnessing such events must process a lot of information within just a few minutes, sometimes seconds! Now think of memory as it is formed. Every person has their own opinions, biases, and ideas of how things should be. This does have an effect on how we remember things. Even a person’s mood has an effect on their willingness and ability to remember parts of their day.

     Here’s an example: Kelly is on her way to return a defective curtain rod she had purchased from a store in downtown Potsdam, New York. She is doing this during her lunch hour and because of this, there are many noisy vehicles on the street. Kelly is frustrated at the poor quality of the curtain rod and is paying little attention to those around her. She is also in a hurry because her lunch hour ends in the next twenty minutes. As she is walking down the street, two men run out from the alleyway in front of her. The first man is wearing a bright blue hoodie and is bleeding from his left shoulder. The man chasing him is wearing a bright purple hoodie and is carrying a rusty pipe in his right hand. The first man has a beard while the second is clean-shaven. Both are wearing hats. The two men turn the corner and are out of sight in the next five seconds. Kelly has just become an eyewitness to a future case. She will be asked to recall specific details from five seconds of her busy day. Kelly may have a good memory, but her mind did not have time to processes the chase. She may mix up the men’s clothing colors or mistake the rusty pipe for a baseball bat. When the incident occurred, Kelly’s mind was focused on other areas of her life. Kelly may present some valuable evidence at the trial, but then again, she may remember the specifics differently.

     The testimony of an eyewitness can be skewed in other ways as well. Police officers who interview eyewitnesses may ask suggestive questions, or questions that suggest details of a crime to a witness rather than allow the witness to remember them on their own. These suggestive questions may not be intentional; however, they do change an eyewitness’s perception all the same. It is important for members of law enforcement to ask open-ended questions that encourage the eyewitness to remember the crime without specific prompting. There is also research to show that when there are weapons present, such as a gun or a knife, witnesses tend to focus their attention on those objects rather than on the crime itself.

     Eyewitnesses might also face a group mentality when recalling events if the incident was seen by many people. To fill in memory gaps, eyewitnesses may rely on the memory of another to work out the details. This patchwork memory may not be correct, but if the majority of witnesses all agree that something did happen a certain way, it is difficult for a single witness to argue against it without hard proof.

     Jury members should take into account the flaws of human memory when deciding the outcome of a trial. Eyewitness testimony should never be dismissed or disregarded as unimportant, however; if harder evidence exists such as surveillance footage, it should be regarded with greater attention. It is also unwise for those in law enforcement or private investigators to lead a witness with questions that may alter their memory of an incident. Lastly, eyewitnesses themselves should not force memories to form. As noted in the article, memories are temporary creations that we create for ourselves. Eyewitnesses should describe events to the best of their abilities, but should not be pressured into creating false memories.

     For more information concerning eyewitness reports or how an eyewitness is considered in the court room, contact Poissant, Nichols, Grue, and Vanier, P.C. at:

367 West Main Street                                                         45 Market Street

Malone, NY 12953                                                       Potsdam, NY 13676

Phone: (518) 483-1440

Toll Free: 1-800-924-3529

-Paul Nichols 

The No-Fault Provision Explained:

     Forms, agreements, and other such paper work can easily become confusing when dealing with insurance companies. More often than not, people find themselves overwhelmed by insurance companies when trying to recover from an accident. If you were involved in a car accident and did not cause it, keep the following information on hand when dealing with your insurance representative.

     Every insurance contract in New York State must have a No-Fault provision. If you were seriously injured in a car accident, you may be entitled to the following: 

1. If you require medical appointments or procedures because of the accident, the insurance company is required to cover at least $50,000 under the No-Fault provision. This money can also be applied to lost wages if you need to miss work because of the accident.
2. Other medical benefits may continue without an end date as long as the injuries involved are caused by the car accident.
3. If you do happen to need time off from work, you can still be compensated for up to $2,000 a month for up to three years after the accident occurs.
4. For some necessary expenses, you may be provided up to $25.00 per day. This money can be used for:

              -   Traveling to and from doctor’s appointments

              -   Hiring someone to assist you if you are unable to take care of yourself (family excluded)

You may receive compensation in other ways depending on your insurance coverage, but these are the minimum payments that you can receive from any insurance company in New York State.

     In order to qualify for No-Fault coverage, you must submit a No-Fault application within 30 days of the accident. You will need to provide proof that you have been disabled in some way due to the accident, and your doctor must provide that proof once a month for your benefits to continue. You must keep track of your expenses and millage to and from the doctor’s office as well as days of work you have missed. Always have your claim number, insurance company’s address and the name of your adjuster, medical verifications stating that you cannot take care of your own needs, a record of every injury that the accident caused, and the name of your doctor.

     Keep detailed records and documentations for yourself, do not rely on the insurance company or your doctor to keep track of everything. Make sure to ask for copies of forms, receipts, and other proof relating to recover. Lastly, your doctor must bill the insurance company no later than 45 days after an appointment or procedure takes place. Remember to keep a detailed record and receipts as proof of your injuries and expenses.

     Remember that a No-Fault claim is merely compensation for your economic loss as a result of a car accident. It is not compensation for your personal injury and pain and suffering.. In no way does bringing a no fault claim bring an action against the driver who caused the accident. If you wish to sue him or her, that is a separate matter altogether and you should see an attorney immediately to assist you. 

     If you have any questions about the No-Fault claim, contact the Poissant, Nichols, Grue, and Vanier, P.C.

367 West Main Street                                                                       45 Market Street

Malone, New York 12953                                                                Potsdam, NY 13676

Phone: (518) 483-1440

Toll Free: 1-800-924-3529

-Paul Nichols

Dog Bites: Do Dog Owners Really Know Their Pets?

     At one time or another, many parents will be asked by their child to get a dog. The child may promise to take care of and love the dog all by themselves. The most common response to such a question is, “dogs are a lot of responsibility.” At the time, children do not truly understand the real responsibility that comes with owning a dog. They realize that the dog must be fed, walked, and bathed, but that’s about it. Adults who own dogs face a much greater responsibility in the form of liability. Dog owners are, to a certain extent, liable and responsible for their dog’s actions, and that can get very expensive when things go wrong; but how wrong can things really get?

     About one-third of homeowner insurance claims involve dog bites. This amounts to payments of over one-billion dollars a year in compensation for dog bites alone. Moreover, children under the age of 12-years-old are often the ones bitten on or near the owner’s property. In addition, dog owners can be further charged for disobeying local leash laws. It is important for owners to keep this in mind when caring for and restraining their dogs.

     

     Both insurance companies and the law have a similar view when addressing dog bite cases. To put it simply, ‘every dog is entitled to one bite’. Any future bite is considered to be the fault of the owner. This can be referred to as the, ‘One Bite’ rule. If a dog owner knows that their dog has a ‘vicious propensity’, a tendency to cause harm towards others, then they are liable and must cover the damages. When a jerry is asked to consider a case where a person is hurt by someone else’s domesticated animal such as a dog or a horse, the jerry must find that the animal had ‘vicious propensities’ and that the owner of the animal knew or should have known about those vicious propensities.

     

     Although commonly referred to as the ‘One Bite Rule’, it doesn’t necessarily require a bite. Vicious propensity is a natural inclination or usual habit to act in a way that endangers people or property. The jury is asked to consider the attack itself and how severe the damages were by reason of the attack. The animal’s attitude and disposition when people approached it are also considered as well as whether it had ever previously attacked another person. Keep in mind it is not necessary to find that the animal had previously bitten or injured someone. A jerry can find that an animal had vicious propensities if the nature and frequency of its acts provided reasonable grounds to believe that it might cause an injury. For example, a dog growling when being approached by a child, bearing its teeth, and running aggressively toward pedestrians all can be evidence that the animal has vicious propensities.

     If you do get hurt by a domestic animal such as a dog or a horse, our duty as lawyers is to check into the facts of the case. This involves interviewing witnesses who may have had previous contact with the animal and thoroughly investigating the history of the dog. If you or a loved one is harmed by a domesticated animal, contact us at:

367 West Main Street                                                                        45 Market Street

Malone, NY 12953                                                                           Potsdam, New York 13676

Phone: (518) 483-1440

Toll Free: 1-800-924-3529

-Joseph Nichols

-Paul Nichols

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.