Category Archives: Personal Injury

Warnings: “TRAIL CLOSED…STOP, RESTRICTED AREA”: Did Hikers Nevertheless Have a Claim After Being Hit By a Falling Tree?

This was originally posted on the SGR Blog.

With the benefit of hindsight, it is clear that some lawsuits never should have been filed. A recent case makes that point.

Unidentified parents, on behalf of themselves and their child (let’s call them the “Walkers”), brought a premises liability action against New York State. They sought damages for injuries sustained when they were struck by a falling tree at Letchworth State Park — and alleged that the State was negligent in failing to inspect the park’s trees and protect visitors to the park from injury.

The Court of Claims denied the Walkers’ motion for partial summary judgment on the issue of liability and granted the State’s cross motion for summary judgment dismissing the claim. The Walkers appealed.

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Budweiser Beer Bottle Bar Brawl on Smith Street: After Customer Served with a Bud Light

This was originally posted on the SGR Blog.

A man enters a bar after having a few beers down the block. Not clear what caused or who initiated an encounter after he was served with the wrong drink—but a bartender hit him with a beer bottle causing injuries. The customer sued the bar for negligent hiring, training and supervision. Did the employee have dangerous propensities?

The action arose out of an incident that occurred on June 3, 2017, at approximately 2:30 a.m., at Bar Great Harry on Smith Street in Brooklyn. At that time and place, a bar back by the name of Carlos Vera, an employee of the Bar, struck Grossman in the face with a bottle. Grossman alleged that the Bar was negligent in failing to prevent the incident; in failing to call the police and ambulance after he was attacked; in failing to exercise reasonable care in hiring, training and supervision of Vera and other employees; and of failing to exercise reasonable care in the ownership, operation, management, maintenance, supervision and control of the pub. Grossman also claimed that the Bar was allowed to become disorderly in violation of Section 106 of the Alcohol Beverage Control Law.

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Bouncy House Brouhaha: Imagined Danger Does Not Invite Rescue

This post originally appeared on the SGR Blog.

What did 26 year old  Samantha Fernandez expect when she entered the bouncy house at her four year old niece’s birthday party? As a recent case illustrates, an injury resulting from an instinctive act of concern raised a plethora of legal issues.

Samantha Fernandez injured her left foot while inside an inflatable rubber bounce house at the Laser Bounce of Li, Inc. children’s entertainment center in Levittown, New York. Fernandez sued Laser Bounce  on various theories of liability, including violations of the New York State Labor Law as well as provisions set forth in bulletins issued by the U.S. Consumer Product Safety Commission. In response to Laser Bounce’s motion for summary judgment, Fernandez retreated to the exclusive theory of liability in this matter that the negligent failure to provide adequate supervision of the bounce house which Laser Bounce owned, operated, maintained, and which it had a responsibility to supervise. Laser Bounce moved for summary judgment dismissing the complaint.

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Loss of a New York City Parking Space Is Not A Laughing Matter: Ask Alec Baldwin

This was originally published on the SGR blog.

Saturday Night Live comedian Alec Baldwin engaged in a shoving match with Wojciech Cieszkowski over a mid-town New York parking space. The result was not a laughing matter. Baldwin was criminally charged and pled guilty to harassment in the second degree.

But that was only the beginning. Cieszkowski sued Baldwin for assault, battery, legal fees and slander per se. In addressing a motion to dismiss the slander claim, the Court took a jurisprudential “deep dive” into the law of defamation, slander ( in general) and slander per se (in particular).

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Hotly Contested Upper West Side Coffee Pot Dispute

This was originally posted on the SGR Blog.

On August 27, 2015, Theodore Comando went to a  deli on the Upper West Side, owned by C.P. Yang Corp, to purchase a cup of coffee. He walked to the counter and lifted a coffee pot from the coffee burner. While lifting the pot, the bottom of the pot fell out, causing his legs and feet to be scalded with second degree burns.

Countering Comando’s version of the facts, the owner of the store, Keumyul Yang, stated in deposition testimony that he was not present during the incident but was told by his employee, Domingo Ogacion, that two coffee pots were involved, and that Comando was holding the right coffee pot and hit the pot into the left coffee pot, causing a hole in the side of the coffee pot that he was holding. However, when was deposed separately, Ogacion stated that Comando was holding the left coffee pot and the bottom fell out.

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I cannot recall why and when I first started collecting the articles about motorcycle accidents; however, over time, I realized that lawsuits arising from such claims are very common (in retrospect, for obvious reasons, the inherent danger and risk of riding a motorcycle).  The causes raise a broad panoply of issues including proximate cause, helmet design and manufacture; and road and intersection signage and speed limits.  A few recent examples follow:

Caro v. Chesnick, 2017 NY Slip Op 07940 (1st Dept., November 14, 2017)

Supreme Court granted defendants’ motion for summary judgment dismissing the complaint.

The First Department briefly described the facts:

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Golf, like any other recreational activity, runs the risk of accidents on the course – and the resulting injuries often lead to “finger pointing” as to which golfer was at fault.  And the game also often raises predictable and unpredictable collateral disputes such as whether a golf club membership is property that can be seized by a judgment creditor; and claims for trespass and nuisance damages when golf balls land on an adjacent property.  Several recent examples follow:

MacIsaac v. Nassau County, 2017 NY Slip Op 05814, 2d Dept. July 26, 2017 Continue reading

Legal “Horse” and Other Tales

The Appellate Division, Third Department, recently issued decisions originating in Supreme Court, Saratoga County, one relating to the Workers’ Compensation Law and the other relating to a personal injury claim – that both had their origin from the riding of horses – and a third opinion, also originating in Supreme Court, Saratoga County, arising out of an automobile that was struck by a deer.

Carey v. Burton P. Schwab, 2014 NY Slip Op 08096 (decided on November 20, 2014) [Stein, J.]

The Court briefly summarized the facts:

[O]n May 24, 2008, defendant and two others rode three horses to a local tavern. While defendant — who was riding a horse he owned named Whiskey — was inside the tavern, Whiskey and another horse got loose from their restraints and took off. One of defendant’s companions went after the horses. Whiskey passed plaintiff and another individual, both of whom assisted defendant’s companion in trying to corral the horses. Whiskey was eventually restrained by defendant’s companion, who asked plaintiff to hold the reins. Plaintiff alleges that, as he was holding the reins, Whiskey head-butted him and stepped on him, causing plaintiff to lose consciousness and suffer injuries. Continue reading