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In a story by Heidi Evans in the March 11, 2012 edition of the New York Daily News, it was reported that passengers in New York City taxicabs are suffering numerous facial injuries due to their failure to utilize rear seat belts. For some reason, many people (this writer included) seem to have a different perspective on car safety when they are in a taxi cab (ignoring seat belts) than when they drive themselves and are more vigilant about seat belt usage.

The issue is compounded by the fact that New York City cabbies frequently drive quite aggressively, make short stops, exceed the speed limit, pass on the right, and cut in and out of lanes. These dangerous maneuvers occur while the driver is attempting to avoid other traffic, bicyclists, pedestrians, and buses.

Pedestrians are suffering facial injuries after striking the glass partition, including broken noses, fractured teeth, abrasions and even brain trauma after a short stop or collision with another vehicle. The distance between the partition and the passengers can be no more than 16 to 19 inches, not much space when the taxi comes to a sudden stop. Rear passengers are routinely being treated at NYC emergency rooms after striking their faces on cup holders, sharp edged credit card machines, change cups and steel bolts.

Dr. Lewis Goldfrank, the chairman of the emergency departments at Bellevue Hospital and NYU Langone, walks to work each day rather than take taxis after observing the severe injuries suffered by taxi passengers he encounters in his daily experience. He states that the only time he noticed a reduction in injuries was at the inception of the TLC campaign airing recordings of Joe Torre, Ed Koch and other prominent New Yorkers reminding passengers to “buckle up.”

Cab drivers quoted in the article blame riders, noting that they are often oblivious, focused more on their smart phones than taking the time to put on their seat belts. Evans reports that there are 485,000 daily cab rides in New York City by 13,237 yellow taxis, with the vast majority being safe. However, a TLC survey reportedly reveals that 2 out of 3 rear seat passengers don’t use seat belts.

Mayor Bloomberg’s effort to create a uniform taxi fleet includes new taxis next month, which will be equipped with a purportedly safer partition, subject to federal crash testing for the first time. However, in addition to making partitions safer, and removing sharp objects such as credit card machines, cup holders and steel bolts, clearly there must be a renewed effort to ensure that passengers use seat belts if the hope is to improve safety in NYS taxicabs.

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The New York Senate Judiciary Committee has approved a bill which would prohibit physicians and other medical malpractice defendants from interviewing a plaintiff’s non-party, later-treating doctors in private. Senate Bill 3296-A is designed to overturn the 2007 New York Court of Appeals decision in Arons v. Jutkowitz that said a defendant in a malpractice lawsuit may interview a plaintiff’s physicians so long as federal Health Insurance Portability and Accountability Act (HIPAA) requirements are met. HIPAA requires a defendant to obtain consent from a plaintiff prior to interviewing a non-party doctor. The Judiciary Committee approved the proposed law with a 21-2 vote.

According to Senate Judiciary Committee Chair, John Bonacic, the holding in the Arons case “usurped the legislature’s authority.” In 2007, Judge Eugene Pigott expressed a similar sentiment in his dissent from the majority holding in the case. Joshua Cohen, President of the New York Medical Defense Bar Association, believes the proposed law is unfair to defendants. He argues private interviews are necessary in order to determine whether a plaintiff’s purported injuries are the result of a pre-existing condition. The bill’s sponsor, Republican Senator John DeFrancisco of Syracuse, has stated the legislation is fair as it protects a defendant’s right to question physicians at depositions.

The Greater New York Hospital Association strongly opposes Senate Bill 3296-A. The Association has alleged the new law would raise malpractice insurance premiums by as much as 6 percent or $96 million. In response, Senator DeFrancisco has stated it would be impossible to predict whether the bill would have any monetary impact or what that impact might be. An identical Assembly Bill 694-A was also introduced this year by Democrat Rory Lancman of Queens. The Assembly previously passed the measure on multiple occasions, including last year when the proposed law died in the state Senate.

Medical malpractice occurs when a doctor, surgeon, hospital, or other medical provider renders services that fall short of the local standard of care. Health care providers must exercise reasonable care in accordance with the prescribed standard of care for their profession. If a medical provider deviates from the accepted local standard of care, then he or she may be liable for any resulting injuries. Unfortunately, mistakes that could adversely affect an individual’s quality of life are sometimes made. If you were injured by a medical professional, a qualified medical malpractice lawyer can evaluate your claim and help to protect your rights.

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After an investigation by the New York City Department of Buildings, a determination has been made that the December 14, 2011 fatal accidenthttps://www.injurylawny.com/lawyer-attorney-1052470.html at 285 Madison Avenue in Manhattan involving 41 year old advertising executive Suzanne Hart was caused by a disabled safety circuit. The tragic elevator accident occurred at approximately 10:00 am last December 14th, when Ms. Hart attempted to board elevator 9 at 285 Madison Avenue in Manhattan on her way to work at Young & Rubicam, where she was employed as a director of new business. When Ms. Hart was partially in the elevator, the car suddenly lurched upward, and her body was pinned in the elevator shaft between the first and second floors of the building.

There were two passengers on the elevator when the fatal accident occurred. They were trapped in the elevator and required rescue workers to free them from the car. Transel Elevator Inc. had been servicing the 13 elevators in the building pursuant to an agreement with the owners of the building, Young and Rubicam. On December 11, 2011, two of the Transel employees disabled a safety circuit on elevator number 9 in order to perform upgrade work on the elevator. However, in a clear safety breach, the maintenance workers forgot to enable the circuit before placing the elevator back in service.

Apparently video depicts the two Transel employees leaving the building at 9:55 am on December 14th, and Ms. Hart stepping onto the elevator one minute later. The car apparently lurched upward with its doors still open. It has been determined that the workers bypassed the door safety circuit with a jumper wire.

Robert D. LiMandri, the Commissioner of the NYC Building Department, stated: “These workers and their supervisors failed to follow the most basic safety procedures, and their carelessness cost a woman her life.” The three safety violations according to city officials were:
1. Failing to re-enable the safety circuit after completing the upgrade;
2. Failing to post a sign that the work was being performed on the elevator; and

3. Failing to contact the Buildings Department to schedule a mandatory inspection prior to placing the elevator back in service.

Transel’s license has been suspended pending a hearing, where it is possible that the license will be permanently revoked. It faces 23 violations with minimum penalties of $117,000. Transel reports on its website that it services 2,500 elevators in New York City. There are approximately 60,000 elevators in the entire city and there were 43 reported accidents in 2011. After the Hart accident, the Buildings Department performed an inspection of 658 elevators in 169 New York City buildings, 370 of which were maintained by Transel. 135 violations were issued at that time, with 71 issued to Transel.

Since the accident, the building manager replaced Transel with PS Marcato to maintain the elevators in the building. Transel previously had many high profile clients including the Graybar Building, the BMW Building, Carnegie Hall, the Hippodrome Building and the Plaza Hotel. No lawsuit has been filed by the estate of Suzanne Hart as of the date of this article, but that certainly seems likely, particularly after the damning results of the Buildings Department investigation.

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In a report by the Governors Highway Safety Association (GHSA), which reviewed data for all 50 states and the District of Columbia, fatal accidents involving 16 and 17 year old drivers increased 11% for the first six months of 2011. This trend, if determined to be the same for the second half of the year, would end an 8 year period of decline in deaths of teen drivers.

Total deaths of 16 and 17 year old drivers during the first half of 2011 increased from 190 in 2010 to 211 in 2011. More specifically, there was an increase in 16 year old fatalities from 80 to 93, and an increase in 17 year old deaths from 110 to 118. There were increases in 23 states, 19 states had reductions in deaths, and 8 states along with the District of Columbia did not have a change in the first six months of 2010 and 2011. The states with the biggest increases in fatalities were Florida, Texas and North Carolina.

The increase in teen deaths is in contrast with data from the National Highway Traffic Safety Administration (NHTSA), which has released an estimate that total motor vehicle deaths in the first half of 2011 decreased approximately 0.9%.

The author of the GHSA study, Dr. Allan Williams, has attributed the teen driver fatality increases to a leveling off of the benefit of Graduated Driver Licensing Laws, now that these laws have been in effect for several years. Additionally, Dr. Williams points to an improving economy as another factor to the statistics, with more teen drivers on the road. The GHSA suggests ways to combat this disturbing trend, which include improvements in driver education, parental involvement in establishing safe driving habits for their children, and strengthening traffic regulations. One concrete and absolute measure is to absolutely prohibit the use of any hand held cell phone or electronic device while driving, which is already illegal in the State of New York.

For example, texting while driving is now a primary traffic infraction in New York State (meaning that the investigating police officer does not need to find another violation such as speeding or following too closely to issue a texting while driving ticket). Texting while driving now leads to 3 points on the driver’s license, and fines with surcharge of approximately $235.00.

Traffic deaths will generally rise in the second half of the year, due to summer driving, vacations, and holidays known for higher accident levels including July 4th, Labor Day, Thanksgiving and Christmas.

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Raymond Knox, the former owner of The Paddock in Patterson, New York, has commenced a federal lawsuit claiming false arrest and malicious prosecution arising out of a tragic fatal DWI accident case on Super Bowl Sunday in 2007 involving his bar manager. The background is that on February 4, 2007, Sandra Longchamps, an off duty bar manager at The Paddock in Patterson, New York, allegedly was served between 12-14 drinks, and then was a driver on Route 22 involved in a head on collision with a minivan operated by 34 year old Kirsten Henry. Ms. Henry’s husband and three children were passengers in the car. Both Longchamps and Ms. Henry died in the accident, and Henry’s three children and husband suffered serious injuries but survived.

Knox was convicted in a bench trial in Patterson, New York before Judge John King in March of 2008 of the misdemeanor charges of allowing Longchamps to be served alcohol when she was visibly intoxicated pursuant to New York State General Obligations Law Section 11-101, and allowing gambling in the tavern. The trial included testimony by the County’s toxicology expert Betsy Spratt, who reported that the autopsy results showed Ms. Longchamps’ blood alcohol concentration (BAC) to be between a 0.34 to 0.41%, several times the legal limit of 0.08%. Victim impact statements were read to the Court by members of the Henry family, and Mr. Knox was sentenced to nine months in jail.

Mr. Knox served approximately five months of the nine month sentence and was released for good behavior. In 2009, the Appellate Term in the 2nd Department (which covers local Courts in Putnam County and other lower Hudson Valley Courts, among others), reversed the conviction. Knox’ attorney had claimed that Longchamps was in fact drinking at another establishment that night, the Alpine Restaurant, and that the investigating officer, Sgt. Timothy Gannon of the Putnam County Sheriff’s Office, did not investigate this information. The attorney representing the County and Sgt. Gannon claims that Longchamps was never at the Alpine Restaurant, (he asserts that witnesses never saw Longchamps at the Alpine that evening), states that Knox was not denied any rights under the U.S. Constitution, and claims that Officer Gannon had probable cause to arrest Mr. Knox.

The New York Court of Claims, which has jurisdiction over all cases against New York State, awarded Mr. Knox $150,000 in 2011 for being “unjustly convicted and imprisoned.”

In the federal lawsuit, Mr. Knox claims that he never would have been arrested if the Putnam County Sheriff’s Office conducted a proper investigation, including speaking with all potential witnesses from the Paddock and the Alpine. He is seeking compensation for the five months that he was falsely arrested and imprisoned. Mr. Knox has also claimed malicious prosecution. In order to be successful on the malicious prosecution claim, Mr. Knox must prove that there was no probable cause to commence the lawsuit against him, that the lawsuit was commenced with malice, that the case was dismissed, and that he has suffered damages as a result of the prosecution.

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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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