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Last month, two members of Gov. Cuomo’s state security team with the NYS Police were involved in car accidents with pedestrians on consecutive days in Mount Kisco. First, on January 18, 2012, Dolce Perez, 22, was stuck as she was crossing Main Street by a vehicle operated by Sgt. Joseph Crispino as he was attempting to turn left from Maple Avenue onto Main Street. Ms. Perez was taken to Westchester Medical Center in Valhalla, reportedly with a skull fracture. She was quoted as follows: I remember walking across the street, the light at the intersection was red and I had a walk sign, and then the car must have hit me because the next thing I remember is I woke up in the hospital.” According to a State Police spokesperson, they are still investigating the fault of this first accident.

Then, the following day, on January 19, 2012, 50 year old Jeronimo Ardon-Perez was crossing North Bedford Road (Route 117) when he was struck by a vehicle operated by State Police Investigator Gregory Panzarella. In both pedestrian accidents, the troopers were off duty and alone in their unmarked vehicles. In this second auto accident, the state police spokesperson claims that Mr. Ardon-Perez “crossed into the front” of Panzarella’s unmarked 2005 Pontiac Grand Prix, and that the vehicle “clearly was operating within the right of way.” Mr. Perez (no relation to the fist victim) was also taken to Westchester Medical Center with serious head injuries and injuries to his legs.

The State Police reconstruction unit is investigating both accidents, which certainly begs the question as to whether there is a conflict of interest in the investigation. In my own experience, I have had cases in which local police officers were involved in accidents, and the investigation was referred to the State Police to avoid the conflict of having the same police agency “Investigate its own.” The State Police spokesperson noted that: “It is customary for us to handle our own accidents, regardless of where they happen…we are a close to 5,000 person agency, with different groups that handle different matters, and we are able to separate investigations from the groups that are involved.”

Both of the troopers are on duty and no sobriety tests were given to either. The State Police deny that there is any significance to the fact that these two accidents happened in such close proximity in time and location.

There are regulations under the New York State Vehicle & Traffic Law which control the right of way at an intersection and the rights of both pedestrians and drivers of motor vehicles. Specifically, under section 1111 of the Vehicle & Traffic Law, if a pedestrian is within a crosswalk with the green light, the pedestrian has the right of way and all vehicles must yield to that pedestrian. Conversely, if the pedestrian is attempting to cross in an intersection without a traffic signal, under 1151 of the Vehicle & Traffic Law, the pedestrian is only permitted to cross if the vehicle is not “so close that it is impractical for the driver to yield.”

Thus, in determining fault in these two cases, the issues will be: Were Dolce Perez and Jeronimo Ardon-Perez within a crosswalk? Was there a traffic control signal? Was the traffic signal green for them? If there was no traffic control signal, was there sufficient time for the troopers to have stopped their vehicles?

We will monitor the investigation of these two cases and report further on any developments.

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Several of the surviving passengers of the Costa Concordia cruise ship have filed a wrongful death lawsuit in Miami, Florida, where the parent corporation of Costa Cruises, Carnival Cruise Lines has its headquarters. According to the lawyers for the plaintiffs in the Miami lawsuit, the case could soon be amended to include hundreds of plaintiffs, seeking compensatory and punitive damages in an amount of $450 million dollars. Punitive damages are only awarded when there is proof of egregious, outrageous conduct on the part of defendants, and are not only difficult to obtain but not covered by insurance, certainly a concern for any corporation.

The lawsuit filed in Florida seeks damages on at least four causes of action, maritime negligence, gross negligence, intentional infliction of emotional distress, and negligent retention. The last cause of action is based on the fact that it is alleged that Costa Concordia was negligent in continuing to employ someone, Captain Francesco Schettino, who was not competent to meet the duties and obligations as the ship’s captain.

As most of the world knows by now, on January 13, 2012, a cruise ship carrying 3,000 passengers and over 1,000 crew members crashed into rocks and rolled onto its side off an island on Italy’s Tuscan coast. 16 people died and at least 16 are still missing. It is rumored that the ship’s captain Schettino diverted from the ship’s intended path to allow one of the crew members to wave to family members onshore, at which time the ship struck rock and flipped onto its side. Schettino apparently abandoned ship prior to the passengers disembarking and is now being held on house arrest for causing the fatal accident and abandoning the ship.

There are some major difficulties with the lawsuit against Carnival, however. To begin with, the fine print on the tickets purchased and signed by the passengers has a “choice of forum” clause which requires that the lawsuits be filed in Italy. This provision is particularly onerous for several reasons, including the financial and practical problems of commencing a lawsuit in Genoa, Italy. (where Costa Concordia is based). Italian law requires that plaintiffs post a judiciary tax that is a certain percentage of potential damages, and even more significantly, the Costa ticket contains a clause that its liability for death or injury to a passenger is limited to approximately $71,000, an amount which pales in comparison to the amount that could be awarded to the family member of the decedent of a fatal accident in the United States. In the United States, a wrongful death claim could potentially include damages for pain and suffering, loss of parental guidance, and pecuniary loss, which could be huge if the person killed had a substantial income and was supporting a family.

Another issue with commencing lawsuits in Florida or other U.S. forums is that crew members likely have contracts which require that they first submit to arbitration before instituting litigation. Traditionally, arbitration awards, issued by purportedly objective judges, are much smaller than amounts decided upon by juries, who would be much more likely to consider the emotional and devastating impact of the injuries to passengers and their surviving family members.
In an effort to ward off litigation, Costa Concordia has offered the passengers a sum of 11,000 euros, or $14,400, as total compensation for all personal injury, property and financial damages, which is without question a paltry amount, particularly for those who were grievously injured or to family members of those who died.

Another lawsuit, filed by crew member Gary Lobaton, was commenced in an Illinois Court on January 26. This suit alleges that Costa Concordia was negligent due to an unsafe evacuation of passengers and crew and seeks 100 million in damages. The Lobaton lawsuit is seeking class action status on behalf of all passengers and crew members. If past history is any guide regarding the pending cases, maritime experts note that the U.S. Supreme Court has upheld the choice of forum clauses in the past, which is obviously not good news for plaintiffs and their attorneys. If the Costa cruise had touched port in any U.S. city, there would be a jurisdictional basis to file the cases in the U.S., but the ship left port near Rome and was headed for Barcelona and Majorca when the tragedy occurred.

In an 11th U.S. Circuit Court appellate case last August, the Court sustained a forum clause in a case in which a California plaintiff who broke her leg on a Regent Seven Seas cruise ship would be required to sue in Paris rather than Fort Lauderdale, Florida, pursuant to a clause in her passenger ticket. One other possibility to resolve the multitude of claims would be for Carnival and Costa to set up a claims fund similar to that developed by BP after the Gulf of Mexico spill, which would involve plaintiffs agreeing to accept an award from the fund in lieu of a case against the cruise line. The advantages are for the company in avoiding jury trials and to the passengers in obtaining a settlement without protracted litigation.

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On January 1, 2011 the Move Over Act was made the law of New York State. Although the statute has been in effect since January 1, 2011, many motorists are unaware of its existence. The Act requires that motorists who observe emergency vehicles with their lights flashing on the side of a highway must reduce their speed and drive with “due care.” If the driver is on a highway with multiple lanes, he or she must pull the vehicle one lane to the left to avoid the possibility of endangering the safety of the emergency personnel.

For those of you not aware of the Move Over Act, beware, for it has now been expanded to include tow trucks and maintenance vehicles with flashing amber lights, as well as other vehicles assisting motorists at the side of the roadway.

The Act was instituted in response to several cases over the last ten years in which emergency personnel and police officers were either killed or suffered severe injuries due to motorists following too closely or too fast in proximity to responding emergency personnel or officers. The official title of the statute is the Ambrose-Searles Move Over Act, named after New York State Trooper Robert W. Ambrose and Onondaga County Sheriff Glenn M. Searles who were killed in the line of duty while they were responding to emergencies on the roadway. In the case of Trooper Searles, this occurred in nearby Yonkers, New York when Ambrose was struck and killed by a motorist while preparing an accident report on the New York State Thruway.

More recently, in November of 2011, a tow truck operator was struck by a passing vehicle and killed while he was assisting a disabled vehicle near Syracuse, New York. Undoubtedly, this tragic fatal car accident was an impetus for the expansion of the scope of the regulation. Two weeks ago, in Peekskill, New York a motorist was charged with a violation of the law and other traffic infractions when his vehicle struck and injured a Westchester County police officer who was involved in a traffic stop on Route 9 in Croton on Hudson.

According to the National Law Enforcement Officers Memorial Fund, since 1999, more than 160 law enforcement officials have been killed as a result of being struck while assisting in roadway incidents. A violation of the Move Over Act results in a $275.00 fine and a two point assessment on the motorists’ driver’s license.

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According to Mayor Michael Bloomberg, New York City set a new record in 2011 for the fewest fatal traffic accidents in the last 100 years. There were 237 deaths in 2011, a reduction from the 267 who were killed in 2010, which was the previous record for fewest fatalities on New York City streets. This is also a huge drop from ten years ago, when there were approximately 430 fatal traffic accidents in the city.

The New York City Transportation Commissioner attributes the significant reduction in deaths to numerous measures that the City has implemented over the last five years, including reconfigured streets with pedestrian plazas (particularly noticeable around Herald Square and Time Square); crosswalks with timer signals, and bicycle lanes. Particularly in historically dangerous intersections on Delancey Street in Manhattan and Queens Boulevard in Queens, this has had a substantial impact according to NYC statistics, with the installation of countdown signals. In total, 1,100 such signals have been added.

Bicycle fatalities have actually gone up for the last two years, with 21 deaths in 2011, 18 in 2010 and 12 in 2009. However, Mayor Bloomberg claims that bicycle ridership has increased significantly during that span, with NYC installing several hundred miles of bike lanes. Thus, Bloomberg asserts that there has been a per capita decrease in the death rate for bicyclists.

When compared to traffic fatalities in 1970, when there were 944, and the shockingly highest number registered in 1929, when 1,360 people lost their lives in traffic crashes, the 237 in 2011 seems even more impressive. In the beginning of the 20th century, the roads in urban areas were much more congested with pedestrians, trolley cars and horse drawn carriages, in addition to cars, and traffic rules essentially did not exist yet. This was borne out by an amazing 11 minute film recorded in San Francisco one week prior to the Great Earthquake on 1906, which was broadcast on CBS’ “Sixty Minutes” earlier this year. What I found truly amazing about this film was the utter lack of fear of injury by pedestrians, who proceeded to walk right in front of cars, trolley cars, and carriages, the non-existence of traffic “rules of the road”, (such as yielding the right of way!), and the vehicles moving in all possible directions at all times!

New York City Police Commissioner Kelly noted that the improved safety on New York City streets is also due to the more than one million traffic tickets issued this year. There were 164,000 for not wearing a seat belt; 161,000 for texting or speaking on a cell phone while driving, and 127,000 for driving past a stop sign. Additionally, there were 8,500 DWI arrests in the city in 2011, which led to 900 vehicles being confiscated from those convicted of these charges.

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In a very important decision for the safety of bus passengers, the New York Court of Appeals recently held in the case of Doomes v. Best Transit Corp. that a bus company could be found responsible for a failure to install passenger seat belts. Under New York State statutes, there is no specific requirement that passenger buses be equipped with seat belts. However, the Court determined that by common law (not statutory but by decisions over the years) a jury could find that an owner or manufacturer of a bus could be responsible for injuries from an accident due to a lack of seat belts.

The plaintiffs in Doomes were injured when the bus drove off the highway after the bus driver fell asleep. Clearly, the bus driver was at least partially responsible for the accident, but the jury decided that many of the passengers’ injuries would have been averted if the bus had been equipped with passenger seat belts (the driver did have a seat belt).

The defense attempted to argue that federal law, which does not specifically mandate passenger seat belts in buses) preempted the state jury’s decision in Doomes. In fact, the dissent argued that The National Highway Traffic Safety Administration (NHTSA) made a “conscious decision” that seat belts in buses were unnecessary due to their “size and function.” Thus, the dissent contended that the field of bus safety was in fact regulated by federal law, leaving no room for a contrary decision by a state court jury. However, the Court of Appeals noted that a clause in the federal regulation (known as a “savings clause”) “did not expressly prohibit plaintiffs’ seat belt claims.”

The Court did reject another claim by plaintiffs as to the “weight balance” of the bus, in which the plaintiffs argued that the negligent design and manufacture of the chassis affected the weight balance, leading to the rollover. In that regard, the Court ruled that plaintiffs’ arguments were speculative and not supported by sufficient evidence.

The Doomes decision is one more example of the best news for the safety of New York accident victims in 25 years—the ascendancy to Chief Judge of the Court Of Appeals of Jonathan Lippman in February of 2009. Justice Lippman, who has shown in his almost three year tenure that when the evidence warrants same, he is truly dedicated to the rights of those injured through the negligence of others, despite the large scale and well financed efforts of automobile liability insurance companies, hospital CEO’s, and large corporations to fight these efforts at every turn.

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Earlier this month, 12 former NFL players who played in the late 1990’s and early 2000’s instituted a class action lawsuit in the U.S. District Court of New Jersey, contending that the league failed to inform players of the risks and side effects of the pain killer (and blood thinner) Toradol. Ex-players including Joe Horn, Matt Joyce and Scott Dragos would be given injections of Toradol to numb the pain from injuries suffered during games in order to get them back on the field quickly. The suit indicates that Toradol would mask traumatic brain injuries with long term effects, including concussions, which have led these ex-players to suffer from numerous health problems since their retirement from the league.

When a player suffers a “stinger”, (Concussion in NFL lingo), trainers often conduct a cursory examination including a quick memory test, check of reflexes and coordination, and examine pupil size. If this short examination appears normal, the player is cleared to return to action.

The side effects of a concussion, which is a traumatic brain injury caused by various types of collisions, include:

An altered state of consciousness, such as drowsiness;
Confusion and loss of concentration;
Severe headaches of long term or short term variety;
Mood changes;
Amnesia;
Nausea and vomiting;
Changes in alertness;
Muscle weakness on one or both sides of the body;

Difficulty walking and with balance and coordination.

Nate Jackson, one of the plaintiffs, described in an editorial in the New York Times that when he played for the Denver Broncos, Toradol was often administered to the players prior to a game. The evening before game day, a line of 10-20 players formed to receive their injections. They were told that other than a small risk of internal bleeding, Toradol was safe. It is easy to visualize Jackson’s description of the pressure that he felt from team personnel, including trainers and doctors, to get back on the field as soon as possible or risk being replaced by “spare parts”, as Jackson referred to them. Jackson’s description is compelling: “There was no hesitation, no trepidation, no point at which I felt that taking Toradol was a risk. I trusted our team doctors…they wouldn’t suggest a drug if it was dangerous.”

In the lawsuit, the players accuse the NFL of negligence, fraud, fraudulent concealment, misrepresentation and conspiracy. The 2nd, 3rd and 4th of these charges care essentially the same: that the NFL knew of the specific risks of Toradol, yet chose to not divulge these risks to the players to benefit teams by doing whatever was necessary to keep players off of the disabled list.

The NFL denies that it deceived players and argues that they now make safety a priority, with severe penalties and suspensions for helmet to helmet collisions, for example. Presently, there are numerous lawsuits against the NFL after two dozen players have died from the effects of chronic traumatic encephalopathy (CTE), which is a condition caused by multiple blows to the brain (it used to be known as dementia pugilistica as many boxers suffered from the condition). With CTE, a substance known as “tau” forms on the brain and interferes with cognitive functioning. Former star safety Dave Duerson of the Super Bowl champion Bears and New York Giants was so convinced that he was suffering from CTE that in committing suicide, he purposely shot himself in the chest and requested that the coroner examine his unharmed brain, which examination confirmed the CTE diagnosis.

One of the main reasons that these former players have commenced the Toradol lawsuit, and the other lawsuits claiming undiagnosed CTE, is that the NFL’s health insurance does not cover collision related injuries, so that the ex-players are now left with serious medical problems compounded by major financial difficulties when they have significant medical expenses and can no longer work. Hopefully, this problem will be addressed by the NFL in the near future, as players are faster and bigger than ever and the collisions are likely to lead to an increase in the CTE diagnosis in the future.

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In an analysis of fatal car crashes across the United States for the years 2009 to 2010, the National Highway Traffic Safety Administration (NHTSA) reports that 19 states had an increase in fatalities. However, there were a total of 32,885 traffic deaths in 2010, which was actually a decrease of 2.9% overall from the 33,883 deaths which occurred in 2009. The biggest increase in auto fatalities was seen in Connecticut, where there was an increase of 42% with 224 deaths in 2009 and 319 in 2010. Connecticut officials claim that to form a correct determination, a study should be conducted over a 3-5 year period, because there was a 26% decrease in fatalities from 2008 to 2009 when the economy was at its worst with the onset of the recession.

Other states which had the largest increases in fatalities between 2009 and 2010 were in New Hampshire (16%); Wyoming (16%); Kansas (12%), and Indiana (8.8%). The states with the largest increase in fatal car crashes between 2009 and 2010 were Connecticut, with 95 more deaths, Michigan, with 70 more, Pennsylvania (68 ), Indiana (61) and Ohio with an increase of 58.

Thirty one states, the District of Columbia, and Puerto Rico had reductions in the numbers of traffic deaths between 2009 and 2010. California had the most substantial decrease in fatalities, from 3,090 in 2009 to 2,715 in 2010, which was a 12% decrease. Interestingly, due to the volume of drivers in California as compared to the entire pool of drivers in the United States, California’s 12% drop in deaths accounted for 37% of the national decrease.

California’s 2,715 fatalities were the lowest in the state since 1944, according to the California Office of Traffic Safety. They attribute the substantial decrease to high visibility police enforcement, DWI checkpoints, public awareness programs, safer vehicles, improved road design, quicker EMS response and their statewide safety plan.

Deaths due to DWI decreased 4.9% nationwide in 2010 from 2009. There were 10,228 fatalities in 2010, which accounted for 31% of the overall nationwide deaths, a slight decrease from the 32% in 2009 when there were 10,759 alcohol related deaths in the United States.

Here in New York, the NHTSA study shows that there were 1,158 fatalities in 2009 and 1,200 in 2010, a 3.6% increase. Alcohol accounted for 318 deaths in 2009 and 364 in 2010, so that there was an increase from 27% to 30% of alcohol being the causative factors in road fatalities between 2009 and 2010 in New York.

From 2000 through 2010, fatal car accidents decreased in 47 states and Washington D.C., and increased in Delaware, Connecticut and Hawaii.

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On December 14, 2011, 41 year old advertising executive Suzanne Hart was tragically killed in an elevator accident at 285 Madison Avenue in Manhattan. Apparently, as Ms. Hart was stepping into the elevator, the car suddenly accelerated upward with the door still open, pinning her along the wall between the first and second floors of the building. The horrific accident was witnessed by two other occupants in the elevator who were helpless to prevent the accident, as it happened before either person could reach the stop button inside the elevator.

There are approximately 60,000 elevators in New York City, and according to a December 15, 2011 article by Cara Buckley and Andy Newman in the New York Times, there were 53 reported accidents last year, of which 3 were fatal. ConsumerWatch.com reports that fatal elevator accidents are very rare, with approximately 27 people killed annually in elevator related incidents based upon data from the U.S. Bureau of Labor Statistics and the Consumer Product Safety Commission (CPSC). Ironically, considering the rarity of fatalities in elevators, Ms. Hart’s death comes only one week after a 48 year old California State University employee Annette Lujan was killed when she attempted to escape a stuck elevator and the elevator suddenly dropped.

In the Hart case, New York City investigators have determined that the 13 elevators in the twenty eight story, 85 year old building had at least 14 open violations, although allegedly none were safety related. Further, inspection records reportedly reveal 56 violations dating back to 2001, of which 34 were for “failure to maintain elevators.” Apparently, Manhattan Borough President Scott Stringer has been requesting more stringent scrutiny of the elevators at 285 Madison Avenue for several years, and he noted: “I’m very concerned that over a 12 month period, this building received ‘unsatisfactory’ four times on inspections to their elevators.”
Further investigation has uncovered that the building’s elevators were serviced by Transel Elevator Inc., who had last conducted a full inspection of the particular elevator in question in June of 2011, finding no safety issues with the elevators, according to New York City Building Department spokesman Tony Sclafani. Interestingly, however, Transel wrote a report in December of 2010 in which it described the elevators at 285 Madison Avenue as “unsatisfactory.” According to the International Business Times on December 15, 2011, Transel’s representative refused to give details as to the basis for the “unsatisfactory” rating. Scott Stringer noted that it was unclear if the unsatisfactory rating was “for a missing light bulb in the elevator” or “was there real structural damage which caused this horrific accident?”

Most recently, Fox New York is reporting that the elevator in question was being worked on by Transel mechanics within hours of the accident. If this proves to be true, there are two likely causes for the fatal accident. First, there could be human error. Second, there could be a faulty relay on the elevator controller. Typically, elevator mechanics inspect elevators by riding the elevators for 15 to 20 minutes, up and down, and stopping at various floors. They check the door operation by placing their hands in front of the doors to ensure that they immediately return to the open position.

According to Patrick Carrajat, an elevator expert retained to investigate this accident, the NY State Building Code requires that elevators be inspected 5 times over a two year period. However, due to budgetary constraints, presently elevators are not inspected more than once annually in New York State. New York, unlike many other states such as Connecticut, Florida, and Massachusetts, does not require that elevator inspectors be licensed. Further, it was only in the last year that New York mandated that elevator inspections be independently witnessed. Previously, the elevator inspections could be conducted by the same companies that were maintaining the elevators, obviously leading to question marks as to their objectivity.

We will report further on this fatal elevator accident as more information is released by the Department of Building and other investigative agencies.

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In the first in what is likely to be a litany of civil lawsuits, a 29 year old man has filed a personal injury civil lawsuit against former Penn State assistant football coach, Jerry Sandusky, the Second Mile, (the charity for “at risk children” that Sandusky founded) and Penn State University. The plaintiff, who is identified only as “John Doe A”, alleges that he first met Sandusky when he was a ten year old boy through a Second Mile program. He alleges that he was sexually assaulted by Sandusky more than 100 times over a 4 year period from 1992 through 1996.

The plaintiff in this civil lawsuit is apparently not one of the eight victims described in the grand jury report released earlier this month. John Doe A claims that Sandusky recruited him with gifts, travel and privileges as a promising athlete, and that the abuse took place at Sandusky’s home, in the locker room on the Penn State campus, and at the site of a bowl game. It is also alleged that Sandusky threatened the plaintiff and his family if he disclosed the ongoing abuse.

Jeffrey Anderson, the attorney for John Doe A, is a well known lawyer from Minnesota who specializes in “clergy sexual abuse.” Anderson’s co-counsel Marci Hamilton indicated that John Doe A had lengthy discussions with Pennsylvania authorities this week.

I have reviewed the 27 page complaint filed on November 30, 2011 in the Court of Common Pleas in Philadelphia County, Pennsylvania. There are eight causes of action against the three defendants, with $50,000 the monetary amount being sought for each count. The complaint recounts the entire history of the sexual abuse scandal at Penn State, including the well publicized incidents in 2000, when Sandusky was allegedly observed orally sodomizing a young boy by a school janitor, and the 2002 incident when he was allegedly caught raping another 10 year old victim by assistant coach Mike McQueary.

In the complaint, there are causes of action for:

1. Childhood sexual abuse and “vicarious liability”;
2. Negligence;
3. Negligent supervision;
4. Premises liability;
5. Negligent misrepresentation;
6. Intentional infliction of emotional distress;
7. Intentional misrepresentation;

8. Civil conspiracy to endanger children.

The complaint was drafted in a way to establish liability against the “deep pocket” defendants, meaning Penn State and to a lesser extent, the Second Mile, as these are the parties likely to have sufficient assets to satisfy a judgment if the case proceeds to trial and liability (fault) is proven against Penn State and the Second Mile. Many of the allegations contain the language ”knew or should have known”, which is a legal concept known as actual and constructive notice. Essentially, Mr. Anderson is alleging that either Penn State and the Second Mile knew of Sandusky’s abuse of children (actual notice), which can be proven through direct observation of witnesses, conversations, or documents, or should have known,(constructive notice) in that these defendants would have to have been oblivious to clear indications that Sandusky was abusing children but chose to ignore these signs. For example, shouldn’t anyone have been questioning why Sandusky continuously was alone in the company of young boys in locker rooms, at his home, at bowl games and other locations? How come no other coaches were ever present for these activities?

The vicarious liability action, which means that one party can be found responsible for the actions of another, is premised on the fact that Sandusky was a representative and employee of the Second Mile and Penn State, who could be held accountable if it is established that Sandusky was acting as their representative in his interactions with children.

Of these eight causes of action, only the first and third were commenced against all three defendants, including Sandusky. Clearly, the manner in which the complaint is written is designed to establish fault against Penn State and Second Mile for placing Sandusky in a position in which he would have access to young children and be in a position to engage in abuse. Anderson knows that Sandusky does not have the assets that a huge corporation such as Penn State has, or to a lesser extent, the Second Mile, to pay a judgment if the case proceeds to trial. Further, there is also a significant insurance coverage question. Many policies are written to exclude coverage for intentional actions, or to exclude insurance coverage for sexual assault.

It is not at all surprising that Sandusky has reportedly transferred the title of his house to his wife, unquestionably fearing civil lawsuits and the loss of his assets. However, there is a concept in the law by which if assets are transferred in anticipation of litigation, the transfer can be voided as fraudulent. On the other hand, some states do have an exemption for the homestead, potentially removing Sandusky’s house as a possible asset to satisfy a judgment. If Sandusky has bank accounts or stocks, those are assets which he will undoubtedly have a problem transferring and or protecting now that the first of several civil lawsuits has been filed.

We will continue to report on the Penn State scandal as it is apparent that this is the inception of what is certain to be a litany of criminal and civil lawsuits, with a wide range of legal issues to be resolved.

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For those of us who have represented the victims of serious New York car accidents over the last 25 years, the No-Fault threshold has proven to be a minefield of inconsistent and unfair results and decisions, particularly when comparing the decisions of Courts in the First Department, which includes Manhattan and the Bronx, with the Second Department, which is comprised of Brooklyn, Staten Island, Queens, and several suburban counties including Westchester, Rockland and Dutchess Counties. More specifically, decisions in Manhattan and the Bronx in cases in which the injured person has suffered injuries other than fractures (which automatically meet the “No-Fault threshold” and thus can be pursued in Court) are much more favorably received by the appellate Courts when the defendant makes a motion to dismiss than they are in the 2nd Department.

The No-fault threshold, which is defined in Section 5102 (d) of the New York State Insurance Law, requires a specific level of injury suffered in a car accident before a plaintiff can successfully commence a lawsuit for compensation. Injuries that automatically meet the no-fault threshold include a fracture, a disfigurement, a dismemberment, death, the death of a fetus, and a series of very specific type of soft tissue injuries which are subject to much interpretation and confusion. This latter group of injuries, including “a significant limitation of use of a body function or system”, and “permanent consequential limitation of use of a body organ or member”, are the specific problem areas, in which the same exact injury might be considered a “serious injury” which meets the no-fault threshold in the Bronx, but does not pass muster in the more conservative and harsh viewpoint of judges in the Second Department.

As a classic example, I have represented clients who suffered torn labrums or rotator cuffs, and had surgery as a result, who are determined to have a “serious injury” meeting the No-fault threshold in the Bronx, yet that same injury and surgery in Westchester does not qualify as “serious” in the view of the presiding judge. Further, herniated discs in the back or neck form the basis of a large percentage of defense motions to dismiss for lack of a threshold injury due to the legal uncertainty and inconsistency that surrounds cases involving these injuries. Ironically, an injury as potentially minor as a fractured pinky or toe without long term treatment is automatically a threshold injury, whereas a victim of a car crash with long term treatment for back or neck herniations could be facing a motion to dismiss their case for lack of a “threshold” injury.

In the last few years, the appellate Courts have added another onerous requirement to cases in which the injured person suffers soft tissue injuries, which the Court of Appeals, and specifically Chief Judge Lippman, has finally dispensed with as not required by Section 5102. That requirement was that the treating doctor for the victim immediately record specific findings of lost range of motion of the injured body part, whether it be an arm, leg, hip, back, neck, or ankle, and if there were no contemporaneous range of motion findings, the case would be subject to dismissal. This harsh result was the scenario in a trio of cases which the Court of Appeals decided to review, and in two of those three cases, the Court of Appeals reversed the dismissal and remanded the cases back to the lower Court for a trial by jury.

The three cases were brought by Joseph Perl, David Adler, and Sheila Travis and for purposes of this article, we are focusing on the first two cases. In the Perl case, Mr. Perl testified that as a result of his accident, he could no longer have marital relations, garden, or carry packages while shopping. Mr. Adler testified that he was having trouble lifting his children and ambulating. In both cases, the treating doctor conducted several tests upon his initial examinations, found that there was some restriction of range of motion and strength, but he did not quantify the lost ranges of motion that he observed in the examinations. However, several years later, the treating doctor did use instruments to document that both men had suffered specific, quantifiable losses of range of motion. As a result of the treating doctor’s failure to provide contemporaneous loss of range of motion, both cases were dismissed at the lower Court level.

Finally, at long last for practitioners in the field of automobile accident litigation, New York’s highest Court clarified the long held belief that the No-Fault statute does not require “a contemporaneous demonstration of restricted range of motion”, and noted that a qualitative assessment of the plaintiff’s condition will also suffice to meet the requirements, as long as this assessment has an objective basis and compares the plaintiff’s limitations to normal function. In music to the ears of plaintiff lawyers in auto accident litigation, the Court stated:

“We agree…that a rule requiring contemporaneous numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject rule that would make contemporaneous quantitative measurements a prerequisite to recovery.”

Our next objective is to lobby the New York State Legislature to expand the definition of a threshold injury to include herniated discs of the cervical or lumbar spine, torn tendons of the arm such as a torn labrum or rotator cuff, and tears of knee cartilage, ligaments or tendons such as a torn anterior cruciate ligament or torn meniscus.

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