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On Saturday, March 12, 2011, 14 passengers on a tour bus returning to Chinatown from the Mohegan Sun Casino were killed when the driver lost control of the bus, it rolled onto its side, and struck a sign stanchion on southbound 1-95 near the Bronx border. The fatal accident is now being investigated by the National Transportation Safety Board (NTSB) , who are interviewing the owners of World Wide Travel of Greater New York, and examining the crash site for physical clues to explain the horrific accident.

What is known is that on March 12th, thirty one passengers on the bus were returning from a day trip to the Mohegan Sun Casino. The driver of the bus, Ophadel E. Williams, (who suffered non life threatening injuries in the accident including a fractured hip), has informed investigators that he was attempting to avoid a tractor trailer which swerved into his lane and then lost control of the bus. Apparently, the bus tipped onto its right side, slid down the shoulder of the highway (the bus is alleged to have slid 480 feet from first contact with the guardrail until stopping), and then hit a sign stanchion which tore through the middle of the bus, leading to the massive injuries and fatalities. It has also been reported that World Wide Travel has been cited in the past for driver fatigue. Police investigators are working to retrace the driver’s actions for 72 hours before the crash. It has been reported that witnesses observed the bus moving at an excessive rate of speed.

In cases such as this, there are several pieces of evidence which will be instrumental in determining the true cause of the accident. These include:

Debris from the accident scene;
Tire marks, skid marks and other roadway evidence;
Damage to the vehicles involved;
GPS tracking information, which could indicate the route and speed of the tractor-trailer;
Statements from the drivers and occupants of the bus;
A review of the engine control module in the bus, which might assist the police in determining the speed of the bus at the time of the accident;
Driver’s logs which both the bus driver and truck driver and required to maintain by federal regulation;

Maintenance records for both vehicles.

There will undoubtedly be several lawsuits for wrongful death, and for the non-fatally injured passengers, for pain and suffering, medical and hospital expenses, lost earnings, loss of enjoyment of life, and long term care. I would assume that World Wide Travel would carry significant liability insurance coverage, but whether that coverage will be sufficient to compensate all of the victims of this tragic accident is a big question. If the evidence substantiates that the tractor-trailer’s actions contributed to the accident, there will be additional insurance from the owners of the trucking company, but there may still be insufficient insurance to compensate all victims.

We will continue to report on this case in future installments as the investigation continues.

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Robert Donohue, a Southeast resident whose wife and 8 year old daughter were killed by a drunk driver back on June 8, 2009, has filed a Putnam County wrongful death lawsuit against the owner of the vehicle and the property owner where the accident happened. The facts are that on June 8, 2009, Lori Donohue and her daughter Kayla were outside of Kayla’s dance class at the Seven Stars School of Performing Arts in Brewster, when illegal immigrant Conses Garcia-Zacarias, who was driving while intoxicated, struck the two and killed them.

Garcia-Zacarias, illegally in the United States from Guatemala, was employed by horse trainer Valarie Renihan, a Westchester County resident, and was apparently living with several other undocumented workers employed by Renihan in a Southeast house leased by Renihan. Renihan is being sued on the basis that she permitted Garcia-Zacarias to operate her Ford F-350 pick up truck despite the fact that she knew or should have known that he was an unlicensed, illegal immigrant. Mr. Donohue is also suing Jan and Mindy Stark, the owners of the property where the accident occurred, on the theory that they knew that the dance school was close to a very busy road and had there been barricades between the parking lot and the roadway, the accident could have been prevented.

Shortly after the accident, the Town of Brewster installed concrete barriers to protect visitors as they walked to and from the dance school. Further, the Starks added columns to provide for a sheltered walkway. The allegations in the lawsuit are that the Starks should have taken these safety measures prior to the accident and were aware of the dangerous proximity of the dance school parking lot to the roadway. However, it would appear that this will be a much more difficult allegation to prove than the claims as to Mr. Garcia-Zacarias, who clearly should not have been permitted to operate a motor vehicle without a license and who was operating a motor vehicle with a blood alcohol content (BAC) of almost twice the legal limit at the time of the accident.

Garcia-Zacarias pled guilty to two counts of vehicular homicide in November of 2009 and is serving a jail term of 8 1/3 to 25 years in the Clinton Correctional Facility in Dannemora, New York. When he completes his jail sentence, Garcia-Zacarias will likely be deported to Guatemala.

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With the incredibly snowy winter we’re having here in the Metropolitan area, people are slipping on icy sidewalks and stairways and suffering very serious injuries. In New York, in order to be successful in a slip and fall accident, you must be able to establish that the landowner had “notice” of the dangerous condition of the walkway or stairs prior to the accident. Notice can be either “constructive”; that is, that the landlord or property owner “knew of should have known” of the icy conditions–i.e. the landlord has his or her office there and could observe the dangerous conditions, or “actual”, meaning that the property owner knew of the snow or ice by virtue of a letter, e-mail or phone call specifically informing she or he about the snow and ice conditions.

If you are the victim of a slip and fall on ice or snow, make sure that you do the following:

1. Take photographs of the area where you fell from numerous different angles (have a friend or relative do this for you after learning of the accident). This is critical, as particularly in snow and ice accident cases, most of the time the conditions have changed or have disappeared within hours after the accident, making it much more difficult to prove your case if the case proceeds to litigation.

2. Obtain the names, addresses, phone numbers and e-mail addresses of all witnesses to the accident. This is another critically important factor in proving cases, as defendants and insurance companies frequently utilize the defense that the accident either did not occur at all or did not happen where the injured person says it did.

3. Report the accident to the property owner, and if possible, obtain a copy of the accident report.

4. Report the accident to the police, and request a copy of the police report.

5. Keep any damaged property or clothing in a safe place as it will be evidence in the case.

6. Seek hospital and medical treatment immediately. It is vital that you make sure that the triage nurse correctly describes the happening of the accident and that you confirm this before leaving the hospital. We are seeing an increase (either for reasons or carelessness or more sinister reasons) in admitting notes which distinctly blame the accident on the injured person without any foundation, for example: “patient reported that while late for work, he slipped on the driveway and broke his left arm”, or “while attempting to answer her cellphone, patient didn’t observe the ice on the sidewalk and fell, landing on her right hip.” In both of these cases, the admitting notes were completely inaccurate, but once you leave the hospital, try to convince the insurance company of that fact.

As for don’ts, there are two critical ones to remember. First, do not sign anything from an insurance company for the property owner. For example, they will often contact you before you are aware of the extent for your injuries, offering to pay for your medical bills in exchange for your signature on a “release” which will end your rights to bring a claim or lawsuit. Second, do not agree to give a recorded statement on the telephone to the insurance adjuster. These insurance representatives are trained in asking questions to elicit answers which attribute the fault of the accident to you.

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After four fatal car crashes since 2008, a stretch of Route 9 in Cortlandt from the Annsville Circle to the Putnam County border will now have rumble strips on the center of the road to provide warning to inattentive or sleepy drivers to prevent cross over accidents. The roadway, also known as Albany Post Road, is narrow and curvy with grades which obstruct sight distance, adding to the dangers. Since 2008, serious car accidents at this location have claimed the lives of a Canadian trucker, a deli manager, and a Peekskill City attorney, who died this past July when his car collided with another vehicle and rolled over near the ABC Deli.

Other improvements which the DOT has implemented to make the roadway safer include extending a 45 mph speed limit, flashing lights, new warning signs and pavement markings. Alcohol has been a contributing factor in one of the fatalities, with regard to the September 4, 2009 accident which took the life of Ralph Wood, a 56 year old Peekskill resident. The driver of the car that struck the vehicle Mr. Wood was a passenger in was convicted of vehicular manslaughter and criminally negligent homicide in November of this year.

I have traveled on Route 9 near the Annsville Circle on numerous occasions over the last 15 years since moving to the area. I have witnessed numerous near accidents, and have frequently encountered vehicles on my side of the road coming out of blind turns. The State’s action was welcome and long overdue.

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The controversial drug propoxyphene, sold under the brand names Darvocet and Darvon, will be withdrawn from the market after 53 years due to serious heart risks, according to an announcement by the Food and Drug Administration (FDA) on November 19, 2010. The studies reviewed by the FDA determined that the drug caused dangerous heart electrical changes in otherwise healthy people. The removal of propoxyphene ends a 32 year crusade by the Health Research Group of Public Citizen, a consumer advocacy group out of Washington, to stop manufacture of the drug.

An FDA advisory committee voted 14-12 to remove the dangerous drug from the market in January of 2009, and it unclear why it took almost 2 additional years before the removal was finally effectuated. Great Britain banned the drug in 2005 and the European Union followed in 2009 after reports of an unusual number of deaths in Florida, where medical examiners do more toxicology studies.

There was some opinion that patients with severe pain might be switched to other medications which could cause more sedation, dizziness and falling. Medications that will most likely be used instead of Darvocet include Extra Strength Tylenol, Tramadol and low doses of hydrocodone or oxycodone. Propoxyphene was the 38th most prescribed drug in 2009 according to SDI/Verispan, a medicine information company, with 17.5 million prescriptions in the United States.

According to John J. Jenkins, director of the Office of New Drugs at the Food & Drug Administration, “the benefits of [propoxyphene] no longer outweigh its serious heart risks.” The drug had been on the market since 1957, when it was manufactured by Eli Lilly, which profited in the billions from the drug until it sold the rights to Xanodyne Pharmaceuticals in 2005. Xanodyne voluntarily agreed to withdraw the drug after hearing last week from the FDA.

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Many of our clients have suffered injuries in elevators, either by a free falling elevator, an elevator that mis-leveled, or being struck by an elevator door that closed too fast. In older apartment buildings in Manhattan and the Bronx, for example, the elevator doors are frequently manual, and have not been properly maintained. Especially for older clients, they can be struck by a door which comes back at them too fast, often with disastrous results.

If you are injured in an elevator accident, here are six critical things you need to do immediately:

1. Write down the number of the elevator and the any information about the manufacturer contained inside;
2. If there is inspection information posted inside the elevator, record this as well;
3. Obtain the names, addresses and phone numbers of any witnesses to your accident;
4. Take photographs from inside and outside the elevator, of the inspection certificate, elevator doors, numbers or other identifying information outside the elevator;
5. Report the accident to building management, and obtain a copy of the report before you leave the building if you are physically able to do so;

6. Try to obtain the name and address of the elevator maintenance company.

When you report the accident, you can expect that you will be contacted almost immediately by either a claims administrator or insurance representative seeking information about your accident and injuries. These representatives are trained in asking questions designed to place the fault of the accident on you–i.e. you were on a cell phone, late for a meeting, distracted by children, or simply not paying attention to your surroundings. Simply put, it is imperative that you retain an attorney immediately who will provide you will skilled and experienced legal representation and procure the maximum compensation for your injuries, medical bills and lost earnings.

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According to a study in the Archives of Surgery, as reported in the the New York Times October 19, 2010 edition, from 2002 through mid-2008 in Colorado, surgeons reported an astounding 25 operations on the wrong patient, and 107 surgical procedures on the wrong body part. The data was drawn from an insurance database in Colorado that involved 6,000 physicians.

Examples of the medical malpractice committed include the most egregious case, in which a chest tube was inserted into the wrong lung, which was healthy, causing the lung to collapse and the patient to die. Surgeons also operated on the wrong side of the brain, removed a healthy ovary and performed surgery on the wrong hand, elbow, knee and eye.

Dr. Philip F. Stahel, chief of orthopedics at the Denver Health Medical Center, noted that: “These data are shocking…These are catastrophic events that are unacceptable. They have been termed a never event–because they should never happen.”

In our practice, we have represented clients who had surgical instruments left in their chests, and more recently, a client who suffered unnecessary surgery when his doctor was “out sick” the day of the procedure, and the doctor’s partner operated on the wrong side. He was then forced to undergo reconstructive surgery, as well as surgery on the correct body part. Needless to say, in that case, the insurance company and doctor decided that the sensible decision was to settle the case before a jury was given the opportunity to decide the amount of damages.

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The Centers For Disease Control and Prevention (CDC) has released a new study with surprising results. Fatal car accidents involving teens steadily declined from 2004 through 2008, despite the increasing popularity and dangers of texting while driving and the numerous warnings of distracted driving on the nation’s roadways. The number of fatalities dropped from approximately 2,200 in 2004 to roughly 1,400 in 2008. The study examined 16 and 17 year old drivers, who were involved in 9,600 accidents during the five year period, with more than 11,000 dying, including more than 4,000 of the teen drivers and in excess of 3,400 passengers.

Teen Fatalities have been declining since 1996, with the advent of safer vehicles equipped with air bags and highway improvements. The study also determined that non-fatal car crashes have dropped by 31% from 2004 through 2008. According to experts, another major reason for the decline in fatalities is that the majority of states are now enhancing restrictions on when teens can drive and when they can have passengers in their vehicles. A spokesman for the Insurance Institute for Highway Safety, Russ Rader, noted that teens are not necessarily driving safer but “state laws enacted in the last 15 years are taking teens out of the most hazardous situations.”

The CDC study revealed that Wyoming has the highest fatality rate, with approximately 60 16-17 year old driver deaths per 100,000 drivers that age. New York and New Jersey have the lowest rate, at about 10 per 100,000.

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A September 23rd report from the American Journal of Public Health indicates that distracted driving fatalities have increased substantially between 2005 and 2008. The report uses data from the National Center for Statistics and Analysis’s Fatality Analysis Reporting System, which revealed that fatal car crashes due to texting while driving increased 28% from 4,752 deaths in 2005 to 5,870 fatalities in 2008. This past January, the federal government banned bus and truck drivers from using handheld devices to send text messages on interstate highways.

According to Jennifer Smith, of the safety group FocusDriven, the more than 5,000 traffic fatalities annually from cell phone use is “equivalent to a major airliner going down each week in this country…if that was happening, they would ground all flights until they figured out what the problem was and they solved it.” The deadly consequences of distracted driving was the main topic in a government summit the past week in Washington, D.C. Officials called for tougher enforcement against the use of handheld devices on the roadways to counteract the growing trend of fatalities due to distracted driving crashes.

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This past Saturday, six people were killed in a Church van fatal rollover accident on the New York State Thruway just north of Harriman. The accident happened when a rear tire blew out, causing the driver to over correct, the van to roll over several times, and nine passengers to be ejected from the vehicle. The church group was on their way from the Bronx to a banquet in Schenectady, New York.

Tragically, the Ford Econoline van that the 14 passengers were riding in is known, as other 15 passenger vans are, for being prone to rollovers, and particularly when the vans are at full capacity. According to the National Highway Traffic Safety Administration, tire failures are the most common cause of fatal rollovers in passenger vans. Apparently, the rear tires in the vans are placed under tremendous stress when large passenger loads shift the center of gravity to the rear. The vans have a tall center of gravity and poor rear suspension, so that when at full capacity, the center of gravity is increased upward and toward the rear axle. Then, when there is a tire failure, the van will fishtail and rotate, going into a sideways rollover.

Certainly, requiring van manufactures to install rear seat belts would lessen the severity of accidents, as all of the fatalities in this accident involved rear passengers who were not belted and were ejected through the windows and killed. According to the NHTSA, from 2003 through 2007, 473 occupants of vans died in crashes, and of these, 56% were rollovers. A full 80% of those killed were not wearing seatbelts. The NHTSA has issued safety recommendations for the operation of passenger vans, which include keeping tires properly inflated, requiring that drivers have commercial licenses, and seating passengers, to the extent possible, near the front of the van. in 2002, The National Transportation Safety Board reported that over a 20 year period, the rollover rate for fully loaded passenger vans was about three times the ratio of vans with fewer than 5 passengers.

The six people killed in the September 18 accident were Bishop Simon White, his wife, Zelda White, the Rev. Titus McGhie, Avril Murray, Evelyn Ferguson, and Elaine Reid. State Police investigators are still seeking a statement from the the driver of the van, Bernard Lallibeaudiere, who is undergoing treatment at St. Francis Hospital in Poughkeepsie.

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