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If you are injured in a New York slip and fall accident or accident involving dangerous premises, it is vital that you get as much evidence as possible while in the store to win in Court or obtain a good settlement. Some examples:

1. Insist on providing a written report to the manager or supervisor of the store or establishment, which you review before signing, and get a copy of that report;

2. When reporting an accident, do not allow the store representative to put words in your mouth (which they love to do) such as that you were looking at the shelves, not the floor, or you were distracted by a child or a cellphone;
3. If you slipped on a substance and there is an open bottle, write down the name of the product. If you slipped or tripped on an item sold in the store, secure this item as it will be of critical importance if your case reaches trial;
4. Take photographs of the accident scene on a cellphone or better yet, a digital camera if you are fortunate enough to have one with you;
5. Obtain the names, addresses, phone numbers and e-mail addresses of any witnesses to the accident;
6. Don’t refuse medical attention if you are injured–take them up on their offer to call an ambulance for you. We have many cases in our office in which the client refused medical attention initially, which is a frequent defense of the insurance carriers for these owners of dangerous premises;
7. Take photographs of any visible injuries such as bruising, swelling, and bleeding;
8. Preserve intact any clothing which has been damaged, torn or has blood stains or stains from a spilled substance;

9. Maintain a diary of how the accident has affected your life, documenting pain, loss of range of motion, inability to perform activities of daily living, doctor’s appointments, and the loss of enjoyment of hobbies and sports that you would normally engage in.

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We have several written articles recently about the dangers of distracted driving, which has led to numerous fatal accidents and serious car crashes, and has become a huge safety issue with people continuing to text after they start driving their vehicles. Now the federal government has decided to get involved. On January 26, 2010, the U.S. government officially banned truck drivers and bus drivers from sending text messages while driving, in a move that was widely supported and promoted by trucking and transportation companies.

U.S. Transportation Secretary Raymond LaHood has made the reduction of distracted driving a priority of his tenure. 19 states previously banned texting while driving, and late last year, New York made texting while driving a secondary offense, by which drivers can only be charged with texting while driving if they are also committing another traffic infraction such as speeding or disregarding a traffic control device. New York Senator Chuck Shumer noted that the ban is “a giant step forward for safety on our roads, but we must do more…” Shumer was referring to a push in Congress to ban texting while driving in cars and mass transit, which has reportedly faced opposition by wireless carriers and the mobile phone industry.

Drivers of commercial vehicles caught texting while driving could face fines of up to $2,750.00. A study by the Virginia Tech Transportation Institute released last year found that truckers were 23 times more likely to be involved in a car crash or close call when texting while driving. The Federal Motor Carrier Safety Administration found in their study that texting drivers take their eyes off the road for an average of 4.6 of each 6 seconds, which at 55mph would have their vehicles traveling a complete football field without the drivers looking at the road!

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At The Law Office Of Mark A. Siesel in White Plains, New York, we represent many clients who are seriously injured as the result of using a dangerous or defective product or machine. Frequently, by the time they come to our office, several days or weeks have passed since the accident occurred, and valuable evidence may no longer be available or has been discarded by the owner of the product.

Thus, if you have suffered injury due to a dangerous product or device, you should do the following whenever possible:

1. Take photographs of the machine, from several angles, and in good light if available;
2. Obtain the manufacturer’s name, address (and phone number if on the machine);
3. Write down the model number, serial number and any other information that is on the machine;
4. Get copies of any operating manuals, instructions or paperwork that accompanied the product upon purchase;
5. Attempt to obtain any service records for the machine, or the names and addresses of any companies that serviced the machine;

6. Obtain records of any modifications or changes that have been made to the device or product over the years.

6. Document your injuries by taking photographs immediately after the accident;
7. Secure the names, addresses, phone numbers and e-mail addresses of any witnesses to your accident;

Often, it will not be possible to obtain all of the above items when the machine is old and records are lost or discarded. However, it is vital to the success of a New York defective products case to have as much information as possible to identify potential defendants including manufacturers, distributors, retailers, repair or service companies and suppliers. The manufacturer or distributor can be responsible for many different dangers, including defective design of the product, negligent manufacture of the product, failure to properly maintain the device, improper or lack of safety labels or warnings, and failure to recall products which have a known defect or flaw.

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In our previous post in this two part series, we examined the causes of motor vehicle accidents and fatal crashes on New York State roadways based on a NYSDOT study called the Strategic Highway Safety Plan 2007. In this article, we look at the State’s finding regarding New York pedestrian accidents, truck accidents, and motorcycle accidents. Approximately 25% of the annual New York fatal motor vehicle accidents involve pedestrians. This is more than twice the national average. 70% of pedestrian accidents and one half of the fatalities in New York State occur in the five boroughs of New York City, but interestingly, pedestrians involved in accidents in the suburbs are more likely to die in these accidents than in New York City. It is also significant that almost ¼ of all pedestrians injured or killed in the last year of the study (’05) were under 18 years of age.

Accidents between a car and large truck account for 10% of fatal motor vehicle accidents in New York, and approximately 5% of the serious personal injury accidents. From 2002 through 2005, there was a range of 140-150 deaths per year in New York truck accidents. The Department of Transportation determined that the three main causes of these accidents was: following too closely-10%; driver inattention or distraction-9%; and failing to yield the right of way-7%. The majority of all truck accidents are caused by aggressive driving by one of both of the drivers involved.

Motorcycle fatalities and motorcycle accidents are on an upward trend, due to the steady popularity of motorcycles, inexperienced riders, the attraction of “extreme” motorcycle riding, and the price of gasoline. Motorcycle deaths on New York highways rose from 155 in 2003 to 163 in 2005.

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The New York State Department of Transportation (NYSDOT) investigated the causes of New York car crashes on state highways from 2002 through 2005 in the Strategic Highway Safety Plan 2007. The good news coming out of the study is that from 1996 through 2005, fatal accidents on New York roadways have declined 10%. Further, although driving while intoxicated continues to be a significant problem in causing roadway deaths, the number of people killed on New York state roadways from driving while intoxicated has dropped from 979 in 1981 to 382 in 2005. The most significant problems causing serious New York car crashes and fatal accidents are aggressive driving, DWI’s and speeding.

There are 113,000 miles of highway in New York State and 16,000 of those highways are operated by the state. Intersection crashes account for approximately 25% of all highway fatalities in New York. There were 77,161 fatal intersection crashes in 2005. Overall, there were 142,287 fatal and personal injury accidents in 2003; 133,314 in 2004, and 128,581 in 2005. Rear end and left turn accidents are responsible for about ½ of all New York motor vehicle crashes. There were 479 fatal accidents from cars overturning or colliding with fixed objects in 2005, and 203 fatal accidents or injuries from crashes in construction zones.

From 2003-2005, failing to yield the right of way contributed to 16% of New York fatal car accidents; following too closely 13.5%; and unsafe speed was partially responsible for 11% of the deaths on New York highways. These driver behaviors have remained constant despite the reduction in overall accidents between 2003 and 2005.

In Part 2 of this series, we will the DOT’s findings regarding New York motorcycle accidents, large truck accidents and pedestrian accidents.

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The family of Michael and Guy Bastardi, two of the victims of the horrific July 26 fatal motor vehicle crash on the Taconic Parkway which killed eight, commenced a lawsuit in the Westchester County Supreme Court this week. The lawsuit, as announced by Roseanne Guzzo, the daughter of 81 year old Michael Bastardi and sister of 49 year old Guy Bastardi, was filed against the estate of Diane Schuler, the intoxicated driver of the wrong way vehicle which struck the Bastardi car, and Warren Hance, (Schuler’s brother) the owner of the Ford Windstar minivan Schuler was driving with a blood alcohol level of 0.19 and THC (the active ingredient in marijuana) in her system.

The lawsuit seeks damages for the wrongful death of Michael and Guy Bastardi, as well as damages for the pain and suffering of both men. Under New York State law, the main elements of damages would be for pain and suffering and wrongful death. Wrongful death damages are limited to “pecuniary loss.” What this means is that if Ms. Guzzo is the plaintiff, for the wrongful death of her brother and father, her damages would be limited to whatever income her father or brother gave her on a regular basis. She could not recover for the emotional loss of her brother under New York State law, but would have a claim for the “loss of parental guidance” of losing her father in the tragic accident.

However, the more compelling issue in this case will be whether the Bastardi family can prove, as they have alleged, that either or both of the Bastardi men survived the accident, even for a few minutes, in order to recover damages for their pain and suffering. Apparently, the attorney for the Bastardis has statements from some first responders indicating that both men were still breathing and responsive immediately after the accident. In order to establish damages for pain and suffering, it is not enough to show that the men survived the horrific impact, but it must also be shown that they suffered “conscious pain and suffering.”

It is expected that the attorney for Daniel Longo, the other man killed in the Bastardi vehicle, will soon file a lawsuit for his wrongful death. One of the main issues in this case will undoubtedly be the extent of the insurance coverage, which would be sought on behalf of all three men, and will clearly be inadequate in compensating the two families for their horrible losses. Ms. Guzzo did state that the lawsuit was not filed for compensation, but to “shine a public spotlight on drunken driving.” There is no doubt that this tragic accident, lawsuit or not, is and will be in the public spotlight for a very long time. It is also a certainty that any damages the families recover in this case pale in comparison to the losses they have suffered.

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According to a New York State Department of Transportation (NYSDOT) study conducted over the last several years, local roadways in Westchester County are much more dangerous than highways such as I-287 or I-95. The study looked at Westchester County fatal accidents, serious car crashes, and accidents per million miles traveled.

Route 1, which stretches from Pelham to Port Chester, is statistically the most dangerous road in Westchester County, with 9.65 accidents per million miles traveled (mmt). In second place as the road where motorists are most likely to be involved in a motor vehicle accident is Route 100B, between Dobbs Ferry and Greenburgh, with 8.65 accidents per mmt. Third most common was Route 119, from White Plains to Tarrytown, with 8.05 accidents per mmt.

Conversely, there were only 1.71 accidents per mmt on I-287 and 1.40 on I-95. The average on the Cross County Parkway was 2.65; Bronx River Parkway averaged 2.63 per mmt; the Hutchinson River Parkway was 1.61, and the Sprain Brook Parkway averaged 1.16 accidents per mmt. The safest road, (ironically concerning the speeds that drivers average on this highway), is I-684 with 0.83 accidents per mmt. This can probably be explained by the fact that 684 is a straight, wide and relatively level highway. The most dangerous small stretch of road in Westchester? The section of Route 9D near the Bear Mountain Bridge, with 13.4 accidents per mmt.

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In a study by the National Highway Traffic Safety Administration, (NHTSA), young drivers of either a car or motorcycle (age 15-20) are the most likely to have fatal car crashes in the United States. 15-20 year old drivers comprise 6% of all licensed drivers in the U.S. but had 19% of the fatal accidents in 2007. About two-thirds of people killed in fatal car crashes are the young drivers or their passengers. More than half of the fatal accidents occur on rural roadways. Motor vehicle crashes are the number one cause of death for 15-20 year olds based upon mortality data from the National Center For Health Statistics in 2005.

In 2007, young drivers were in 6,669 fatal accidents resulting in 7,650 deaths. There has been a 13% decrease in deaths involving young drivers from 1998 to 2007, with the peak being 9,251 fatalities in 2002. There are three main causes of the much higher percentage of young driver fatalities in this country: failure to wear a seat belt; alcohol involvement, and speeding. According to the study, overall seat belt use among all drivers is 82%, but among young drivers, it is 77%, and in fatal crashes in 2007, 61% were not wearing their seat belts. Regarding alcohol usage, 31% of young drivers involved in fatal accidents in 2007 had some alcohol in their systems, and 26% were over the legal limit of 0.08 percent (BAC).

31% of all fatal crashes in the United States are at least partially attributable to speeding. However, in 2007, a whopping 39% of male drivers age 15-20 killed in auto crashes were speeding when the accident occurred. Young female drivers age 15-20 accounted for 24% of all fatal crashes. Of all ages and genders of motorists, 15-20 year old males are the most likely to be speeding when a fatal car crash occurs.

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In the previous article in this series, we focused on the preparation for your deposition. Now that you have properly prepared for your deposition, here are the do’s and don’ts for your testimony. First, make sure that you clearly understand the questions you are being asked, and if you don’t, say so. I tell my clients that they have three options: tell the defense attorney that you need the question rephrased, ask to speak with me, or have the court reporter read back the question–sometimes the meaning becomes clearer if the question is read more slowly. Second, you must not volunteer information! If I as your attorney do not know what you are about to say, I may not want you to testify on that topic, so only respond to the questions you are being asked. Try to pause between the question asked by the defense attorney, and your answer, both to assist you in thinking about your answer, and equally importantly, to allow your attorney to make an objection to the question if the question is improper or calls for testimony which is privileged. (for example, a question such as “what did you talk to your attorney about is protected by the attorney client-privilege and you would be told not to respond to this question). Feel free to speak to your attorney if you need advice about a question or if you are concerned about a topic which has come up during the deposition, such as a prior criminal conviction–and always remember to discuss any possible issues with your attorney before the deposition so that he or she is not blind sided by a question that you had not discussed beforehand.

There is a very important distinction between your testimony about the accident, which should be as short and limited as possible, and testimony about your injuries, pain and the effect on your life, which absolutely must be thorough, descriptive, and no holds barred.

Testimony as to the accident is a minefield since the defense attorney is looking to get testimony from you that can be used to blame the accident on you rather than his client. Classic examples of this are in New York car crash cases and trip and fall accidents. For example, in a deposition involving an auto accident, the attorney will ask the following: “For how long before the accident did you see the other car? Clearly, this is a trick question. You may not have seen the car at all before the accident, but if you did, it would only be a for a few seconds or less, yet countless witnesses will respond “Oh, for a minute before the accident.” Obviously, if you had plenty of time to see the other car before an accident, you would have had time to avoid the crash, so make sure you think about the question before you respond. In a trip and fall deposition, the defense attorney will ask: “Where were looking as you were walking? Most people walk looking straight ahead as well as looking toward the ground, but if you only mention looking straight ahead, you have now sown the seeds of a defense that the plaintiff “failed to see what was there to be seen”–meaning that had you been looking at the ground also, you would have seen the uneven or broken sidewalk and avoided the accident. The motto is give short, responsive answers, think carefully about the question before answering, and if you don’t know or can’t remember a detail, do not hesitate in giving this answer–never guess or speculate!

Remember that this is your own opportunity before trial to let the defense attorneys and insurance companies know why they should try to settle with you prior to trial, so if you minimize your injuries, you better believe they will. I have frequently had clients tell me during our preparation that “I hate to complain, it’s not my personality.” Guess what? For the two or three hours of the deposition, you must complain, and describe your pain in detail. USE ADJECTIVES! Never say I have “discomfort”. A stubbed toe causes discomfort; a torn anterior cruciate ligament or Achilles tendon hurts like hell! Give examples of what your pain feels like, so that the attorneys, and later on, potential jurors will know precisely what you mean: i.e. “The pain is so bad it feels like I am being stabbed with a knife in my knee when I walk…” Make sure that the defense attorneys know exactly how the injuries have prevented you from doing what you love–playing tennis, running, skiing, or playing basketball with the kids, as well as hampered you in doing activities you must do, such as cooking, cleaning, or other household chores.

Do not let the other attorney cut you off if you have not completed your answers about the toll the accident has taken on your life–remember that the attorney is preparing a report to send to the insurance company claims representative–every detail counts!

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In your lawsuit for injuries suffered in a New York car crash, Bronx trip and fall, construction accident, from a defective or dangerous product or a dog bite, (to name a few examples), the single most important event in that lawsuit before the trial is known as the deposition, or “examination before trial.” During the deposition, you are placed under oath, and then asked a series of questions by the defense attorneys about your personal background, education, employment history, your accident, your injuries and damages. In essence, the deposition is a dress rehearsal for the trial of your case, and it provides both attorneys and the insurance companies an opportunity to analyze your abilities as a witness. Was your testimony credible? Would a jury like you as a witness and want to find in your favor? Did your testimony establish the elements of your case as to the negligence or carelessness of the defendants and their legal responsibility for your injuries?

Because of the vital importance of the deposition, you should make sure to get a good night’s sleep the night before, and arrive for the deposition clear headed and well rested. If it’s possible, it is better for you not to take pain killers that you would normally take if they have side effects which could affect your alertness and stamina. Additionally, it is my opinion that if you are feeling more of the effects of your injuries while you are testifying, you will be more likely to emphasize the pain and disability form those injuries. I also strongly believe, although many attorneys do not do this, that preparation for the deposition, including how to respond to questions about your accident and injuries most effectively, should be done prior to the date of your deposition. Typically, lawyers meet with their clients to prepare an hour before (sometimes 15 minutes before) the deposition is to take place–this is a huge mistake, especially considering the importance of the deposition and the likelihood that you will be somewhat anxious and less likely to be able to remember the instructions you are given.

When testifying, you must keep your cool and testify in a calm and clear fashion. Defense attorneys have numerous strategies to rattle you, anger you, intimidate you and attempt to cause you to lose your focus and concentration. It is critical that you avoid these traps–your goal should be to convince the defense attorneys that if the case reaches trial, you will be a formidable witness. You will know that you accomplished this goal if within a month or two of the deposition, the defense attorneys approach your attorney to discuss settlement of your case–in my experience, this happens frequently when the client does well at his or her deposition.

Part 2 of this article will focus on the content of your testimony–how to testify most effectively to prove your case.

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