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Pain Management has become a major growth industry in this country, with wide spread addiction to Oxycodone and Hydrocodone a large part of the problem. For many of our clients who are injured in automobile accidents, construction accidents or trip and fall accidents, when the pain becomes intractable and surgery is not necessarily an option, it is now a common practice for the clients to undergo lumbar or cervical epidural steroid injections. For example, in 2011, approximately 2.5 million Medicare recipients and a similar amount of younger patients received the injections.

Spinal injections for back or neck pain is now under significant scrutiny as the result of a meningitis outbreak which has spread across the United States. The drug which is responsible for the meningitis outbreak is known as mehtylprednisolone acetate, which was apparently made by a company called New England Compounding Center (NECC) in Framingham, Massachusetts. According to an article by Denise Grady, Andrew Pollack and Sabrina Tavernise in the New York Times on October 9, 2012, the company sold 17,676 vials of the mehtylprednisolone acetate to 75 pain clinics in 23 states across the United States. The New York Times has reported that compounding centers are used by doctors and hospitals to obtain certain medications for two major reasons. First, when medications are in short supply, compounding centers such as NECC are a potential alternative, and second, the prices for the drugs from the compounding centers are often much lower than if the hospitals had to purchase the medications from a pharmaceutical company.

So far, there are 7 reported fatalities, 57 people who have become ill from the tainted medications, and potentially thousands more who could be endangered. It appears that the medication was contaminated with a fungus, which is the worst of three possible ways to contract meningitis, the others being through a virus or bacteria. Doctors note that the fungal meningitis is hardest to treat and leads to strokes. The only means to determine if the person is suffering from meningitis is to perform a spinal tap. If the spinal fluid is cloudy, it is likely that the person has the fungal infection.

The New York Times article discussed the tragic case of Eddie C. Lovelace, a judge in Kentucky who was still on the bench in his late seventies. Judge Lovelace was suffering from severe neck pain from a car crash. He underwent spinal injections for pain relief, and within several months, he was dead at the age of 78. Doctors and hospitals frequently do not have any idea where the medication they are prescribing and requesting comes from. Dr. Anders Cohen, the chief of neurosurgery at Brooklyn Hospital Center, notes: “We ask for the medication, it’s in stock, we use it. I don’t know if it’s coming from A, B or C. This is a wakeup call about where your stuff is coming from.”

Compounding centers are able to provide the medications less expensively since they are not subject to the federal oversight of the Food and Drug Administration, (FDA), which requires stringent testing before a drug offered by a pharmaceutical company can be approved for public use. The approval process takes several years and costs the drug companies several million dollars. New England Compounding charged $25.00 for a vial of five 80 milligram doses, whereas a similar vial of Depo-Medrol, manufactured by Pfizer, costs in the range of $40-$46.00. Compounders are able to register as pharmacies, placing them under the review of state agencies and regulations, not the federal government. The F.D.A. reports that problems with products be reported to the agency, whereas there is no equivalent procedure under state laws, allowing compounding centers like NECC to flourish.

Ironically, The New England Compounding Center had significant problems in the past, with several complaints lodged against the company over the past decade. The Massachusetts State Health Dept. inspected the company in 2006, and as a result, the letter sent a letter to the company accusing them of among other things, illegal production of an anesthetic topical cream and allowing a doctor’s office to order products without prescriptions for patients. It is also tragic to note that there is a significant question as to whether the injections are even effective, so that many patients risked their health or their lives for a questionable treatment to alleviate their suffering.

As a precaution, the F.D.A. is advising health care professionals and consumers not to use any product manufactured by the NECC until further notice.

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According to an article in the Bloomberg News last week, the City of New York will pay approximately $735 million in 2012 in settlement or jury verdicts as a result of medical malpractice claims, excessive force and false arrest cases against the NYPD, and claims involving collisions with NYC vehicles or due to improperly maintained roadways. This article focuses on the police abuse cases. In my opinion, the tremendous volume of cases against NYC for excessive force and false arrest is not at all surprising, as we have seen an alarming trend of improper police conduct in New York City in recent years. For example, in 2010, the City was forced to settle a class action lawsuit contending that the Department of Corrections illegally strip searched 100,000 inmates upon incarceration for misdemeanors or lesser charges. The City paid a whopping 33 million to resolve this class action litigation.

Further, in 2011, the NYC paid $15 million to resolve a class action lawsuit instituted in 2005 in which 22,000 New York residents were improperly charged with loitering in violation of a regulation which was determined to be unconstitutional thirteen years earlier! There has been an ongoing increase in police abuse cases for several years, with a 46% increase in claim payouts from 2006 to 2010. In 2010, the City of New York paid $136 million in jury verdicts or settlements in false arrest, excessive force or other abuse cases. In 2010, there were 2,657 civil rights claims filed against the NYPD and other City departments.

In other areas of tort litigation, the City of New York has taken proactive measures to improve the safety of the City and its citizens (and to a great extent, protect the City from claims and lawsuits). For example, in 2003, the New York City Administrative Code was amended to include a provision which mandates that adjoining landowners maintain and repair public sidewalks. According to Bloomberg News, this regulation saves the City of New York approximately $40 million annually in trip and fall cases. Similarly with regard to medical malpractice cases, the City created a special legal unit to review practices and analyze procedures. Apparently, this resulted in a 17% reduction in claims costs from 2006 to 2010, with the City paying $134 million in medical malpractice claims against the 11 public hospitals in 2010.

The City contends that in a large majority of cases, their police officers “did the right thing, but from a risk management point of view we want to settle meritorious claims…” Thus, City officials argue that they made a “business decision to settle, rather than run the risk of a much greater tort judgment against us.” However, this defense can hardly explain the conduct of NYPD officers in arresting 10,000 citizens on charges that haven’t been valid for almost 15 years, or strip searching 100,000 people on lowly charges such as disorderly conduct or trespass, which are often not even crimes but rather violations, the equivalent of a traffic infraction. If the City would focus its efforts on enhanced training of its officers and on proper police procedure, undoubtedly the trend of increased brutality and false arrest cases could be reversed.

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Earlier this month, New York State Court of Claims judge Stephen J. Mignano awarded 32 year old Mahopac resident Slim Zouaoui more than 20 million in damages as the result of a March 11, 2007 car accident in Somers, New York in which the judge found that the State of New York had failed to maintain the roadway in a reasonably safe condition. On the date in question, Zouaoui was traveling eastbound on Route 6 in Somers between Windsor Road and Mahopac Avenue when a vehicle traveling westbound lost control due to an icy condition on the roadway, came into Zouaoui’s lane and collided with his vehicle, crushing his left arm and causing him severe injuries.

In the first part of the case, decided by Judge Mignano in April of 2011, the judge found that the State of New York Department of Transportation was on notice of recurrent icy conditions on Route 6 in the Somers accident location, which was caused by an overflow of water onto the roadway during the daytime hours, and then a refreeze of that water during the evening hours, causing very icy conditions. Judge Mignano determined that the evidence against the State was overwhelming, based on Department of Transportation records which called the area a “hot spot”, which required “extra focus”, and “baby-sitting.” This evidence was supplemented by the fact that there had been two similar accidents in the preceding 9 days before the March 11 accident, and the damning evidence that because the accident occurred on a Sunday, the DOT workers were not working that day and therefore could not provide the necessary “baby-sitting” to prevent the roadway from becoming a hazard.

Having tried many cases in the New York State Court of Claims over the last twenty five years, (all cases against the State are tried in the Court of Claims and there are no jury trials) it is unusual in my experience for judges to rule against the State in highway maintenance cases, and the amount awarded to Mr. Zouaoui is certainly eye opening and substantial for a Court of Claims judge.

With regard to the damages awarded by Judge Mignano, the evidence during the damages trial was that Mr. Zouaoui was required to undergo 28 surgeries since the accident, and due to his left arm being crushed in the accident, lost most of the function in his left arm. However, it is very surprising that Judge Mignano awarded 11 million dollars out of the overall judgment for past and future pain and suffering, in that judges are generally much more conservative in awarding damages for pain and suffering than jurors tend to be, and I cannot remember a pain and suffering award of a similar amount in recent years in a Court of Claims case. Apparently, the judge was also persuaded by the long term narcotic pain medication that Mr. Zouaoui has been required to take to date, clearly reflecting the level of pain that he must obviously be enduring from the accident and into the future.

With regard to the financial damages incurred by Mr. Zouaoui, although he has been able to keep his job as a senior vice president for a information technology firm, which pays him approximately $167,000 annually, Judge Mignano noted that the car accident effectively prevented Mr. Zouaoui from future promotions and raises, will shorten his work life expectancy by about 6 years, and have a damaging effect on his remaining approximately 23 years of work life expectancy. Further, it appears from the decision that the State made the rather foolish decision not to offer a vigorous defense on the damages issue or any countervailing testimony or evidence to reduce the judge’s award for lost earnings and reduced earning capacity, which totaled approximately 9 million dollars. I make this statement based on the reference in the judge’s decision that: “…claimant’s limited employability within the industry should he need to look for work in the future, the shortening of his work life by six years, and the resulting effect on his income over remaining 23 years of his (reduced) work life expectancy was undisputed.”

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A recent serious motor vehicle accident involving Staten Island residents Wilma and Victor Rao brings into stark focus the importance of “SUM” insurance coverage when an accident victim suffers injuries through the negligence of a driver either with no insurance coverage (due to an insurance lapse or never having insurance to begin with) or insufficient coverage to compensate for the injuries and financial losses suffered by the victims. “Sum” means supplemental underinsurance (for accidents with drivers that have inadequate insurance), or uninsurance (for accidents with drivers that have no insurance). The Raos were in an accident with 29 year old ex-convict Christopher Chin, who went through a stop sign, struck the Chin vehicle, and had no insurance on his vehicle.

Victor Rao, 51, who was in a medically induced coma for one month, suffered loss of vision in his left eye, brain injuries, a broken hip, several fractures in his right arm, and an inability to use his right hand. Victor’s wife, Wilma Rao, 56, suffered a fractured pelvis and broken collarbone. Despite these severe injuries, Ms. Rao is valiantly attempting to run both her antique store and Mr. Rao’s freight forwarding business while all also assisting in her husband’s rehabilitation and taking care of their two children.

The huge problem for the Raos, as it is for so many car accident victims in the State of New York, is that while they had $100,000 in bodily liability insurance coverage, which would protect other drivers if they were negligent in an accident and injured someone else, they had only $25,000 in SUM uninsured/underinsurance coverage. Thus, since Mr. Chin, who is also being charged with two counts of felony second degree vehicular assault, has no assets and no insurance, the Raos are each limited to $25,000 through their SUM uninsurance coverage for all of their physical and financial injuries. This could have been so easily averted if they had simply been advised by their insurance broker, or if they went through the insurance company directly, a claim representative, that they should consider raising their underinsurance/uninsurance coverage to at least the same amount as their bodily injury coverage of $100,000 per person.

Whenever a car accident victim walks into our office, one of the first topics we discuss is the issue of underinsurance coverage. Because we usually do not yet know if the defendant has sufficient insurance coverage (or as in the Rao case, any coverage at all), it is vital to find out what SUM coverage our client has to protect themselves. Further, there is a specific requirement with SUM claims that they be filed promptly after an accident has occurred, so time is of the essence.

One other very important detail to remember about SUM coverage is that it only applies if the SUM coverage of the injured person is more than the bodily liability coverage of the other car involved in the accident. For example, if the bodily liability coverage of the negligent other driver is $100,000, and so is the SUM coverage of our client, than the SUM coverage does not apply, and it would also not apply if the other driver’s coverage was more than our clients’ SUM coverage. However, if the SUM coverage is more than the bodily injury coverage of the wrongdoer’s policy, then the bodily injury policy coverage is subtracted from the SUM coverage and what is remaining would be available to our injured clients. In this latter example, if the SUM coverage is $250,000 and the bodily injury liability of the other driver is $100,000, then there would be $150,000 available SUM coverage—i.e. $250,000 SUM Coverage–$100,000 Bodily Liability Coverage from wrongdoer= $150,000 remaining available SUM coverage.

“SUM” coverage is a vital yet frequently not purchased element of automobile insurance which protects a driver or passenger from being injured in an accident with either an uninsured driver or driver with inadequate insurance to compensate the injured car occupant (s) for their pain and suffering, medical bills and lost earnings sustained as a result of the other driver’s negligence.

The irony of SUM coverage is that is relatively inexpensive, (in the range of $150.00 per year to provide good coverage) and insurance brokers often neglect to mention to the clients the benefits of this coverage in an effort to reduce possible claims against the insurance companies that they are beholden to.

As a long standing member of the New York State Trial Lawyer’s Association, I have lobbied along with many other members of NYSTLA for at least the last few years to change the rules about SUM coverage from what is known as an “opt-in” provision (meaning that you have to specifically request the coverage to obtain it) to an “opt –out” provision, in which the person applying for car insurance would have the same SUM coverage protecting them as they would bodily injury coverage protecting other drivers and car occupants UNLESS they specifically stated that they did not want this coverage. We were successful in persuading the NY State Legislature to pass a bill with the new “opt-out “ provision for SUM coverage, which is presently sitting on Governor’ Cuomo’s desk and facing strenuous opposition from the big car insurance companies such as Allstate (“You’re In Good Hands”), State Farm (“The Good Hands People)”, Progressive, Geico and others.

I would strongly urge anyone who has read and taken an interest in this article to contact the Governor Cuomo’s office today to urge him to sign the SUM Bill, which is also identified as Senate Bill S7887 (Seward) and Assembly A10784 (Morelle).

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On Sunday, July 8, 2012, there was a fatal accident on the Saw Mill Parkway in Yonkers near the Rumsey Road exit. At approximately 12:15 PM that Sunday, a Mercedes driven by 36 year old Kenyatta Garner of South Carolina was traveling northbound at a reportedly excessive speed when Garner struck a Honda Civic in the right lane and lost control of the vehicle. According to the Westchester County Police, the Garner vehicle then struck a center divider, hit an overpass for the eastbound Cross County parkway, and flipped over numerous times. According to a police spokesman, the Mercedes then “disintegrated”, with twisted metal, debris, and a trail of bodies left behind.

Two passengers in the Garner vehicle were killed when they were ejected from the car: Tony Fortune, 46, and Shanikka Hunter, 28, both of the Bronx. Mr. Fortune was a front seat passenger who was reportedly ejected from the sunroof, and Ms. Hunter was a rear seat passenger. It is believed that neither Mr. Fortune nor Ms. Hunter were wearing seat belts. The other three occupants of the car also suffered serious injuries and were hospitalized at Jacobi Medical Center in the Bronx, with one listed as critical. However, the extent of their injuries has not yet been disclosed.

The driver of the Honda Civic initially struck by the Mercedes, 23 year old Benjamin Ferder of New Rochelle, was fortunately not seriously injured, and was treated and released from Jacobi Medical Center.

The Saw Mill Parkway is one of a group of Westchester County Roadways which is particularly dangerous, (along with the Bronx River Parkway and Hutchinson River Parkway), in that the roadway is narrow, a large portion of the roadway has no shoulders, and there are many short entrances to the parkway making it very difficult to merge with traffic already flowing at 60-70 m.p.h. The Saw Mill Parkway is approximately 30 miles in length, beginning from the Henry Hudson Parkway in Yonkers to I-684 in Bedford. Since 1980, the parkway has been maintained by the New York State DOT, and approximately 95,000 vehicles use the parkway on a daily basis. Construction of the parkway began in 1926, when vehicles were obviously a lot smaller and didn’t travel at speeds over 60 miles per hour. World War II put a halt to construction for a few years in the 1940’s. Widening the parkway was considered in the 1950’s and 1960’s but never happened, and vehicles clearly are travelling at faster speeds than ever with distracted driving becoming a bigger issue, adding to the dangers overall.

It is likely that the final determination of the Westchester County Police will be that the primary factor in this horrific car accident was excessive speed, and certainly toxicology tests will be done to examine whether intoxication played a role. However, there is no doubt that the configuration and narrow boundaries of the Saw Mill Parkway add to the dangers of high speed driving on this roadway. At some point in the future, maybe the issue of widening this well traveled parkway will be reconsidered and implemented.

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This past week, CNN anchor Anderson Cooper reported on what personal injury attorneys around the country have known for the last several years: Allstate and State Farm Insurance Company have a policy of refusing to pay on legitimate claims for pain and suffering, medical and hospital bills, and lost earnings, particularly in what are known as “low speed impacts” in which the injured car accident victim’s car does not have significant property damage. In this two part report beginning on July 3rd on CNN, the strategy of “Deny, Delay and Defend” is laid bare for exactly what it is, an effort by multi billion dollar companies to avoid payment of claims on the premise that there is fraud, when the true rationale is to maximize profits for corporations which rake in huge monies while doing their level best to avoid showing their profit and loss statements.
Simply put, the strategy is deny: we weren’t at fault because your client stopped short or didn’t go to the hospital right away; delay: we need several months to evaluate your claim by doctors, therapists, bio-mechanical engineers, or “trauma experts” (a new tactic in which insurance company adjusters have records reviewed by emergency room physicians who has never examined the plaintiff but determine that they could not have been injured in the accident because they didn’t complain of a particular injury right away); Lastly, defend: “We are offering you $7,500 and you have until this date to accept. If you do not accept by that date, the offer is withdrawn and will not be made again.”

As a personal injury attorney who has been litigating cases against Allstate and State Farm for over 25 years, one of the classic tactics that these corporations use, particularly in low speed impact cases, is to take the cases to trial, make posters out of the damage photographs, and show them to a jury with the exclamation: “How could this minor accident have caused all of those injuries/this surgery/that amount of treatment?” The fact is, and orthopedists and neurologists will readily acknowledge this, that cars are manufactured now so that there are accidents with substantial damage to the cars and the occupants walk away without any injury, (particularly since the advent of air bags for both front and side collisions) and many crashes in which there is almost no visible damage (due to the improved design of cars, or the point of impact between the vehicles, or damage not visible to the undercarriage of the car, for example), where the previously uninjured person now has severe back or neck pain requiring long term treatment and sometimes surgery.

The report also discusses a book written by Davis Berardinelli, called “From Good Hands To Boxing Gloves”, which illuminates the policy of treating most minor accident claim victims as frauds, and the effort to pay pennies on the dollar on legitimate claims to cause personal injury attorneys to decide that claims against Allstate or State Farm insureds without definitive fractures or noticeable property damage are not worth the expenditure in time or money. As Mr. Berardinelli notes in an interview, if they can save $1,000 on one million claims, “you can do the math.” One ironic story in the report was of a former Allstate claims adjuster who used to believe the company line that virtually all minor impact victims were malingerers—that is, until she was an accident victim herself and now has severe neck and back pain with a car that was barely damaged.

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The National Transportation Safety Board (NTSB) released its final report this week concerning the causes of the fatal bus crash in the Bronx last year that killed 15 passengers and seriously injured 18 others. On March 12, 2011, a charter bus that was returning from the Mohegan Lake Casino in Connecticut to Chinatown on Route 95 in the Bronx lost control, flipped over, struck a guardrail and then a stanchion which held a traffic sign. The impact sheared off the roof of the bus, causing the fatalities and severe injuries to the passengers.

Preliminary investigation determined that the driver, Ophadell Williams, was operating the bus at 78 m.p.h just before the crash. The speed limit in that location of Route 95 is 50 m.p.h. Williams also claimed that before the fatal crash, the bus was “clipped” by a truck, but this could not be confirmed, and there were several reports from other truck drivers who witnessed the early morning crash that Williams appeared to be falling asleep as the bus was veering onto the shoulder of the road.

Williams was indicted on several charges of manslaughter and criminally negligent homicide later in 2011 and is being held on $250,000 bail at Rikers Island. Investigators further learned last year that Williams had a criminal record, his driver’s license had been suspended 8 times, and he had been fired from previous employment with the MTA and another bus company. World Wide Travel, the company that operated the bus, was apparently unaware of Williams’’ background as federal law only requires states to provide charter bus companies with the last three years of a commercial bus driver’s driving history.

The recommendations by the NTSB are as follows:

1. States would now require an onboard safety monitoring system which would permit the charter bus company to detect unsafe driving by its drivers. This would have permitted Williams’ employer to send a warning before the bus left the travel lanes of 95 and struck the guardrail;
2. States would be required to maintain 10 years of a commercial bus driver’s history, rather than the 3 years it presently requires. Had World Wide Travel received more substantial information on Mr. Williams’ criminal and employment background, it seems clear he would not have been permitted to operate any buses at any time;
3. That the National Highway Traffic Safety Board develop equipment which would limit the top speed that buses, motor coaches and trucks can travel at—Williams was operating the bus at 78 m.p.h. and investigation revealed that even at impact, the bus was traveling at 64 m.p.h.;
4. That safety equipment protocols for charter buses such as seat belts and shoulder harnesses be reassessed. Presently, this equipment is not federally mandated for bus passengers, (only drivers) but clearly some of the passengers who were either killed or seriously injured would have had a much better chance of surviving or being less seriously injured if they weren’t thrown from their seats;

5. A directive that the American Association of State Highway and Transportation officials work on developing high performance barriers on new construction and rehabilitation projects to improve guardrails. The barrier surrounding the stanchion in this crash was constructed to prevent only cars, and not commercial vehicles, from striking the support post.

As stated by the chairwoman of the NTSB, Deborah Hersman: “Together, fatigue and speed are an especially lethal combination…[this was] a deadly crash that did not have to happen.”

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In a case believed to be the first of its kind in the United States, a New Jersey judge ruled on May 25, 2012 that a woman who was texting her boyfriend when the boyfriend was involved in an accident with a motorcycle and seriously injured a husband and wife is not liable for their injuries. On September 21, 2009, Shannon Colonna was texting her boyfriend, Kyle Best, 18, who was driving a Chevy truck in Mine Hill, New Jersey. Best was in the process of returning one of Colonna’s texts when his truck struck a motorcycle occupied by David and Linda Kubert. In the car accident, David Kubert had his left leg torn off above the knee, and Linda Kubert suffered injuries to her left leg which ultimately led to amputation.

David Kubert described that they observed Best holding the steering wheel with his elbows and with his head down. The Chevy truck swerved across a double yellow line and struck the Kuberts’ motorcycle head on. Mr. Kubert saw his left leg torn off and Ms. Kubert observed that the bones in her left leg were coming out of her pants.

The Kuberts’ lawyer sued both Mr. Best and Ms. Colonna, arguing that although Ms. Colonna was not in the vehicle at the time of the accident, she was “electronically present” and knew that Mr. Best was driving while responding to her texts. Phone records showed that Colonna and Best had texted each other 62 times the day of the accident, including just prior to the impact. At a deposition during the “discovery” stage of the case, however, Ms. Colonna denied any knowledge that Mr. Best was driving as he was answering her text messages.

In the criminal case, Best pled guilty to distracted driving, acknowledging that he was using his cell phone and responding to a series of text messages he received from Colonna around the time of the accident. The judge ordered Mr. Best to speak at 14 high schools about the dangers of texting while driving. He must also pay $775.00 in fines. No action has been taken against Best’s driver’s license at this time.

38 states across the Unites States have banned texting while driving, including New York in 2011.

State Superior Court Judge David Rand agreed with the defense that Ms. Colonna could not be held legally responsible for the accident and horrendous injuries suffered by the Kuberts. It appears that Judge Rand determined that his role is to interpret the existing law, not create new laws, and that if state legislators want to ban sending texts to drivers, they will have to pass a law to that effect. Clearly, however, the trend is moving in the direction of more enforcement against distracted driving, and the next logical step may be to institute liability against those who cause distracted driving as well as those who commit the violation. However, in this case, the bottom line is that if Best had simply waited until he stopped driving to respond, or even pulled over, the accident would never have occurred.

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Last week, there was a fatal accident in a Brooklyn apartment complex partially owned by ex- MLB first baseman Mo Vaughn, when 12 year old Yakim McDaniels was killed while playing “chicken” on a roll-up gate. Apparently, McDaniels and two other teens were riding the gate as it proceeded upward. The two other boys jumped off, but McDaniel’s hand got caught in the gate, he could not dislodge it, and his head and upper body was forced into the mechanism, fracturing his neck and killing him.

The gate has a sensor by which it will not continue downward if pedestrians are underneath it, but nothing to prevent it from rising. McDaniels suffered severe head trauma and had to be cut out of the gate before he could receive medical treatment. He was taken to Brookdale Hospital where he was pronounced dead within hours of the May 6, 2012 accident.

Residents of the area interviewed shortly after the accident stated that they had complained to Omni New York on numerous occasions that kids were playing on the gates, to no avail. Supposedly, management had set up a basketball program on the premises but it was closed by management due to tenant complaints about noise. Omni office manager Arleigh Hardy noted that there is a playground on the property, but acknowledged that it was for younger children. She stated that it was a “tragic accident”, and claimed that the owner will pay for funeral expenses.

There is a possibility that the family will sue for the wrongful death of Yakim McDaniels, and pain and suffering (if it can be proven) before he died. When someone dies almost instantaneously, the only way to prove “conscious” pain and suffering is to obtain witness testimony that the fatally injured person either complained of pain, or even moaned in pain, before they died. Even a few seconds of conscious pain and suffering can be compensable.

However, this will be a difficult case to establish negligence in due to the issue of what is called “comparative negligence.” Comparative negligence is the responsibility of the person who is suing for injuries for causing their own injuries. (in this instance, a family member would have to be appointed to be Yakim’s legal guardian for a lawsuit to proceed). If however, management received numerous letters and complaints documenting the dangerousness of the activity and failed to prevent it from continuing, there is a possibility that there could be a finding of negligence against Omni New York as well.

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On April 29, 2012, there was a tragic fatal car accident on the Bronx River Parkway southbound near the Bronx Zoo exit. 45 year old Maria Gonzalez was driving a 2004 Honda Pilot with her 85 year old father, Jacob Nunez, 81 year old mother, Anna Julia Martinez, 9 year old daughter, Jazlyn Gonzalez, 39 year old sister, Maria Nunez, and two nieces, Naily, age 7, and Marlyn, age 3, passengers in the car when she lost control of the Honda, struck the center median, went across three lanes of travel, and vaulted over a 4 foot high guardrail on the right border of the road, falling 60 feet to the southwest grounds of the Bronx Zoo. All seven occupants of the car were killed by blunt force trauma, as determined by the New York City Medical Examiner.

This section of the Bronx River Parkway appears particularly hazardous, if not statistically so, with narrow lanes, no shoulder, no breakdown lanes, and curvy roadway configuration. The Parkway was constructed in 1940 when cars were certainly much shorter, lighter, and slower. Investigation by the local authorities has apparently determined that at the time of the accident, the vehicle was travelling at approximately 68 miles per hour. The speed limit is 50 m.p.h, although vehicles rarely travel at the speed limit on that roadway.

Back in June of 2012, there was a similar accident on the northbound side of the Bronx River Parkway in the same location, in which a driver lost control of his SUV, struck the divider, crossed two lanes and went over the guardrail, falling twenty feet and landing on a pickup truck in a parking lot. However, in that accident, the driver and passenger both survived the crash.

The New York State Department of Transportation has announced that they will immediately begin construction of concrete barriers along the outside lanes of travel in three locations near the southern border of the Parkway. Additionally, workers will install signs and striping in the area of the accident, which will now be deemed a construction zone, with a speed limit of 35 m.p.h. If a driver is convicted of speeding in a construction zone, fines can be doubled and points are increased dramatically, potentially leading to a license suspension.

Interestingly, NYS Department of Transportation statistics show that fatal motor vehicle accidents were at a hundred year low in 2011, with 243 fatalities, of which 161 were pedestrians or bicyclists. Conversely, in the State of North Carolina, which has a similar population to New York City, there are typically approximately 1,300 traffic deaths annually. The national average for motor vehicle fatalities in 2010 per National Highway Traffic Safety Administration (NHTSA) data was 1.11 deaths per 100 million miles traveled, whereas the fatality average in New York urban areas is 0.64 deaths per 100 million miles traveled.

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