Articles Posted in Car Accidents

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In this personal injury case, the defendant disputes that the plaintiff suffered a “serious injury” as defined by § 5102(d) of New York Insurance law. Under New York law, in order for a plaintiff to be able to recover damages based on the negligence of another person or entity, the plaintiff must have suffered an injury that is serious. A serious injury is one that results in significant disfigurement; permanent loss of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury that prevents the injured person from performing substantially all of the material acts that the person usually performs.

On March 5, 2008, at approximately 5:00 a.m., the plaintiff was riding a bus owned and operated by defendant Metropolitan Suburban Bus Co. According to the plaintiff, the bus driver stopped short, causing her to slip and fall on the wet floor of the bus. Plaintiff claims that as a result of the fall, she seriously injured her lower back, right knee, and right ankle. About 8 months later, the plaintiff filed a lawsuit against the defendant. The defendant filed a motion for summary judgment dismissal of the claim.

Because the defendant filed the motion for summary judgement, it has the burden of showing that there are not material issues of fact and that as a matter of law, it is entitled to win the case. In this case, the defendant must show that the plaintiff did not sustain a “serious injury.” If the defendant meets its burden, then the burden shifts to the plaintiff to raise an issue of fact as to the existence of a “serious injury.” The court will view evidence in a light most favorable to the non-moving party, which in this case is the plaintiff.

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The issue in this case is whether a defendant in a truck accident personal injury case can escape summary judgement after the death of the co-defendant whose actions were the direct cause of the plaintiff’s injuries.

Defendant Stern was an employee of defendant Schor & Rosner. On October 31, 1958, Stern was driving a truck owned by Schor & Rosner when he backed into another vehicle, causing that vehicle to collide with the vehicle occupied by plaintiff McCarthy. As a result, plaintiff McCarthy was injured. McCarthy filed a personal injury lawsuit against Schnor & Rosner, and now moves for summary judgement. The court will grant the motion for summary judgment if the plaintiff can show that there is no genuine dispute as to any material fact, and that he is entitled to judgment as a matter of law.

Defendant Stern, the driver of the truck, died before he was served with the summons and complaint. Defendant Schor & Rosner does not deny the allegations in the complaint that Stern was driving the truck that day. However, Schor & Rosner denies knowing any of the specifics of the accident because the driver is no longer available to testify. Schor & Rosner asked the court permission to not be held to as high a standard of proof for this case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. In addition, the court contends that the Schor & Rosner is in fact in possession of an affidavit made by the driver and a copy of the accident report. Thus, the defendant does know the details that led up to the accident.

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In a birth injury case, the court examines whether the actions of a volunteer midwife fall under the “Good Samaritan” rule, and as a result, the defendant should be granted summary judgement.

The plaintiff Lacy, who was carrying twins, opted for a home birth instead of giving birth at a hospital. She wanted to be assisted by a midwife and nurses. She hired defendant Delettera, a midwife, to assist with homebirth. Defendant Delettera invited defendant Chachere to assist with the process. On June 24, 2004, plaintiff had a sonogram which indicated a deceleration in the heartbeat of one of the twins. After following up at Stony Brook University Hospital, the hospital determined that the baby’s heartbeat had stabilized. The plaintiff then indicated that she wanted to give birth at Nassau University Medical Center. She requested that defendant Delettera assist, but Delettera did not have birthing credentials there. The plaintiff was told that if she wanted to deliver her baby at Nassau, it would have to be under the care of a doctor. The plaintiff refused and decided to give birth at home. On July 1, 2004, the plaintiff gave birth at home and one of the babies was stillborn. The plaintiff filed a medical malpractice lawsuit against a number of defendants, including Delettera, Delettera’s company, and Chachere.

Chachere filed a motion for summary judgement, arguing that she was merely a lay student observer, and that the claim against her should be dismissed. Chachere claimed that her role was restricted to observing, taking pictures, making chart entries, and injecting Pitocin at the direction of defendant Delettera. Therefore, she argued, there was no connection between her presence and the harm to the plaintiff because she did not assist in the actual birth and had no contact with the mother or the deceased child. In support of her motion for summary judgement, defendant Chachere submitted an affidavit of a board-certified maternal-fetal physician. His opinion was that the baby’s death was due to the failure of the nurse/midwife to document the fetal heart rate during the home birth. He also asserted that because Chachere had no role in the pre-natal or post-natal care of the mother or the twins, the baby’s death cannot be attributed to any of her actions.

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The issue in this medical malpractice claim based on the death of an infant during childbirth is whether the mother must suffer a physical injury in order to sustain a claim for emotional distress.

In March 1983, plaintiff was admitted to the labor and delivery unit of defendant hospital. During the course of her labor, plaintiff’s attending physician, defendant doctor, prescribed Pitocin to stimulate contractions. The Pitocin was administered intravenously to plaintiff and, as a result, her contractions increased in intensity and frequency. Plaintiff gave birth to a baby boy. The infant was in respiratory distress at birth and died approximately 6 1/2 hours later.

Plaintiff filed a medical malpractice lawsuit against the hospital, as well as against the doctor and nurse who attended to the plaintiff throughout her labor and delivery. The plaintiff seeks recovery for serious personal injuries, physical and emotional pain, disappointment, sadness, anxiety and psychological trauma.

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In Fabiano v. Philip Morris Inc., the court is presented with the issue of the circumstances under which false and misleading advertising of cigarettes by multiple manufacturers can be the basis for recovery in a product liability claim.

The decedent, Fabiano, smoked cigarettes for over 40 years, starting in 1956 when she was 14 years old. Over the years Fabiano and her husband smoked several different brands of cigarettes. Oftentimes Fabiano switched brands to the brand that her husband smoked. She also was concerned about her health, and sometimes opted for brands that were advertised as “lite,” and, therefore, healthier. In addition, Fabiano made multiple attempts to quit, but, because of her addiction, she was note able to until a few year prior to her death. Fabiano died in 2002 from lung cancer.

Fabiano’s daughter and her husband filed a product liability claim against several of the major cigarette manufacturers seeking damages. The defendants seek to dismiss plaintiffs’ claims for fraudulent misrepresentation and negligent misrepresentation. In addition, their claims also include, failure to warn, fraudulent concealment, concerted action, conspiracy, aiding and abetting, defective design, addiction, wrongful death, loss of consortium, and punitive damages.

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This medical malpractice action arises out of the labor and delivery of plaintiff Bustos’ son. Due to the large size of her baby, Bustos suffered a fractured pelvis bone during the vaginal delivery. Bustos filed a medical malpractice claim against her doctor, asserting that he departed from good and accepted standards of medical practice by failing to properly evaluate the size of the fetus and failing to recommend a cesarean section. As a result, Bustos sustained symphysis pubis diastasis—a separation and/or fracture of the lower pelvic bone—following the vaginal delivery of her son, requiring surgical intervention and pinning.

The standard for whether a doctor committed medical malpractice is whether the doctor’s care and treatment of the patient deviated from accepted community standards of medical practice, and as a result, the patient was injured.

Defendant Segarra cared for Bustos during her pregnancy. She had regular appointments with him throughout her pregnancy. On the morning of April 1, 2003, Bustos was admitted to Lenox Hill where she delivered a healthy 10-pound baby boy via vaginal delivery. During delivery Bustos was positioned flat on her back on the delivery table and her legs were spread apart with her heels hitched onto the stirrups. The bones where the two halves of her pelvis met were relaxed by the hormones of childbirth but the doctor performed a hyper flexion-abduction maneuver after she was given an epidural. Following the delivery, Bustos complained of bilateral back and leg pain. She then had surgery to repair her fractured pelvis. Bustos maintains that her pelvis would not have fractured if the doctor had properly determined the baby’s delivery weight and delivered her baby via cesarean section. The baby was large, as is common when the mother suffers from gestational diabetes—as did Bustos. The pelvic fracture could have been avoided if the baby was delivered via a cesarean section.

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Plaintiffs include several members of the Scott family, including 19 children, who resided at the Brooklyn Arms Hotel which is owned by defendant Fields. The Hotel was leased to Merco. In 1981 the plaintiffs were homeless. The City of New York placed them in the hotel. The plaintiffs claim that from the years 1981 through 1984, several of the Scott children were exposed to lead paint while at the hotel. The plaintiffs also claim that while they lived at the hotel there were no attempts made to correct the hazardous lead paint condition. The plaintiffs filed a lawsuit against the plaintiffs based on negligence, recklessness, and gross negligence. In addition, the plaintiffs allege that the Housing and Maintenance Code for New York City was violated.

The defendants filed a motion for summary judgement dismissing the case. The purpose of a summary judgement motion is to ask the court to dismiss the case without the case having to go to trial. The court will grant a motion for summary dismissal of a case if the defendant produces evidence that demonstrate that there are no genuine issues of material fact. This means that based on the undisputed facts, the law requires that the defendant wins.

In support of their summary judgement motion, the defendants make arguments related to not being aware of the problem, not having regular access to the premises, not having control over the premises, and not being aware that children lived there. The court determined that some of the defendants’ arguments are specious. Based on the evidence presented at the hearing on the motion, the court concluded that there were indeed questions of fact. For example, the court found that there were questions of fact with regard to whether the defendants were aware that paint was peeling the Hotel, whether they were aware that children under the age of 7 lived in the Hotel, and who had complete and exclusive control over the Hotel. Thus, on the issue of negligence, the court denied the defendants’ motion for summary judgement. However, the court did grant the defendants’ summary judgement motion to the extent that the plaintiffs will not be allowed to recover claims related to the breach of warranty of habitability or their claims of nuisance.

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When a doctor fails to perform a c-section delivery when warranted, there is a risk that the mother or baby will suffer serious birth injuries, including permanent injuries to the brain. Plaintiff Mitchell filed a medical malpractice lawsuit on behalf of her infant son against defendants Lograno, Strittmatter, and the hospital. Mitchell argues that because the doctors did not perform a c-section delivery, there were negligent, and as a result, her son suffered permanent brain injuries.

Two days prior to her expected delivery date, Mitchell was given a test that showed that her baby’s heartbeat was non-reactive. Mitchell was transferred to a hospital for additional tests and monitoring. Defendant Lograno, Michell’s doctor, discussed options with her and decided to induce a vaginal delivery using Pitocin. Before Lograno left for the evening, he discussed Mitchell’s case with Strittmatter. It was agreed that the baby would be delivered via vaginal delivery. Strittmatter performed the delivery. The baby suffered a number of injuries during the delivery, including brain damage. Mitchell filed a personal injury lawsuit against Lograno, Strittmatter, and the hospital, arguing that as a result of not performing a c-section, her baby suffered serious injuries including a brain damage. Lograno and Strittmatter moved for summary judgement dismissal of the case.

A motion for summary judgment dismal seeks a judgement on all or part of the case in a summary fashion, without the issue or case being fully litigated at trial. In this case the defendants are asking the judge to decide the case in their favor, immediately, without a trial. The legal standard for summary dismissal is that the defendants must show that there are “no genuine issues of material fact” and that they are entitled to judgment as a matter of law. In other words, the defendant must show that based on undisputed facts presented, the defendant must win because the law supports the defendants’ position.

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In this slip and fall case, the issue is whether an airline caused the hazardous condition or had notice of the hazardous condition that led to the plaintiff’s injuries.

Plaintiff Guntur was scheduled to fly from Logan Airport in Boston to New York. While she was in the restroom, her name was called for boarding. She hurried back to the gate and down the jet bridge as she did not want to miss the flight. She was the last to board the plane. As she neared the portion of the jet bridge that connected with the door of the airplane, Guntur slipped and fell. She immediately looked at the area where she fell and noticed that there was icy, wet dirt. Guntur filed a lawsuit against Jetblue to recover damages for the injuries she suffered due to her fall that was caused by Jetblue’s negligence.

The Airport Operations Lead Officer for the airline testified that the airplane was regularly cleaned. On icy or rainy days, the airplane was cleaned not only by the cleaning crew but the flight attendants check the jet bridge for any water or snow accumulation. The employees have a broom and mop handy. They also have a carpet that they lay so that the passengers can walk on a dry surface. The flight attendants are also trained to always check the entrance of the plane. They are trained to use handy paper towels to pat the area dry so that the passengers will walk onto the plane on a dry surface.

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In D.C. v. Petco Animal Supplies Stores, the court determines the liability of a pet store owner in a case where a customer’s pet dog bites a child in the store. This case may impact not only pet stores where customer pets are routinely permitted, but other types of stores and venues where there is a trend toward becoming more “pet-friendly.”

On January 23, 2006, plaintiff Christian took her two children to defendant pet store, Petco, in order to buy supplies. Defendant Coughlin was also shopping at the same pet store. He had with him his 8-9-month-old Rottweiler puppy that he had adopted from an animal shelter just ten days earlier. The dog exhibited a great disposition and Coughlin was in the process training with the puppy. After coming from the animal shelter, the puppy had contact with children. The puppy had visited the pet store before the incident and had not exhibited any aggressiveness or territorial barking.

On that day at the pet store, plaintiff Christian asked Coughlin if her daughters could pet his puppy. The puppy was on a leash. Coughlin agreed. While Coughlin and Christian chatted, her children patted the dog. Suddenly the Rottweiler lunged and bit one of Christian’s daughters in the mouth causing her injury.

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