April 28th, 2010

Laura Bush Concedes Negligence in Fatal Crash From Her Youth

Former First Lady Laura Bush has conceded negligence in the November 6, 1963 car crash she was involved in at age 17, in Midland, Texas. She concedes running a stop sign and hitting another car, killing its driver. The driver of the other car, Michael Douglas, was a start athlete and friend of hers.

Her concession comes, according to the New York Times today, in a book that she wrote to be released next month. According to the Times,

Mrs. Bush concedes that she and her friend were chatting when she ran the stop sign. But she also suggests a host of factors beyond her control played a role — the pitch-black road, an unusually dangerous intersection, the small size of the stop sign, and the car the victim was driving.

Those other factors that are mentioned, however, would likely have no bearing on her own fault, a subject she basically acknowledges in discussing her grief over the accident that has carried on for decades.

Since accidents of this type are rather common in the personal injury field, here’s my two rupees of analysis if a civil suit resulted:

In the language of the law — at least in NY — the failure to yield at a stop sign makes someone negligent as a matter of law that requires a court to grant summary judgment if a civil action was brought, unless the defendant could set forth a non-negligent reason for the conduct.   The fact that the road was “pitch-black” would be a reason to be more cautious, but it doesn’t work as an excuse. The fact that the intersection was “unusually dangerous” might play a role in municipal liability, but since she was a local resident presumably familiar with that intersection, that would likely be a tough defense to raise.

As to the “small stop sign,” I don’t know what to think since I’ve only seen one size on roadways and would presume this one was the same as all others. I would not accept her word that it was anything other than a regular sized sign and would want some kind of proof of it being smaller. Since that part of the Times piece is paraphrased, and not quoted, I’ll leave that part as an open question on the issue of municipal liability.

 

April 26th, 2010

New York’s No-Fault Law To Finally Be Updated?

I’ve railed  before about some of the problems with New York’s No-Fault law, and it appears the Legislature may finally be ready to act. The No-Fault law forms the framework around which all New York auto accident lawsuits are evaluated, so this is no small deal.

Back 30+ years ago, the idea was that all auto accident victims would get  insurance for their injuries regardless of fault, but the trade-off was that only those that crossed a “serious injury” threshold could bring an action for damages. That meant the the law had to define medicine, which is no easy task.

The basic problem regarding the threshold was medical technology was limited as to what could be seen. So while the law still uses the technology from decades gone by, we now find ourselves in a situation where  a fractured pinkie qualifies as a serious injury, but surgery needed for a torn rotator cuff, herniated disk, or torn meniscus, might not.

The MRI, CT, EMG and ultrasound were, at that time the statute was drawn, dreams in the heads of inventors, or experimental prototypes not widely used as diagnostic tools. The x-ray was state of the art when the statute was drawn.  So the legislature defined the threshold in these nine ways:

  1. A personal injury that results in death;
  2. Dismemberment;
  3. A significant disfigurement;
  4. A fracture;
  5. The loss of a fetus;
  6. Permanent loss of use of a body organ, member, function or system;
  7. Permanent consequential limitation of use of a body organ or member;
  8. Significant limitation of use of a body function or system; or
  9. A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

The first five are clearly objective measurements. The next four are fuzzier, and they have been fought over time and time again due to a lack of clarity in the statute, particularly the language of “permanent consequential limitation” and “significant limitation.” And the ninth one, referred to as the 90/180 test, is problematic because it clearly favors those with good work benefits who can thus afford to stay home and nurse their injuries. Those that are self-employed may not have that option, and would work despite having the exact same injuries. And the stay at home mom is really in trouble, as she doesn’t have that clock to punch, thereby creating documentation for time missed. The 90/180 rule actually encourages people to miss work.

As it developed, the law also was found to favor those patients that chose doctors fluent in legalese, to deal with some of the odd requrirements that courts started adding to the statute.  Courts started demanding, for example, “objective” findings that were made “contemperaneous” with the accident. That language doesn’t exist in the statute. Lawyers would read decisions and tell doctors what the evolving standards were, to the best they could be defined. And woe unto the accident victim that merely went to a doctor that simply wanted to practice medicine and heal the patient. Now that doctor was forced to write medical-legal reports. And they couldn’t just write like they were trained in medical school and residencies. They had to adopt the language of judges.

Another problem was the accusation that insurance companies were using sham medical exams to cut off the No-Fault benefits. There is no shortage of complaints in New York of 5-minute exams where a doctor finds no objective evidence of injury and the insurance company cuts off the benefits that were supposed to come as the trade-off for surrendering their right to sue.

Last year, a  very frustrated Supreme Court Bronx Paul Victor took a shot across the bow of this law, with a long rant about legislative defects, inconsistent appellate decisions and “a great expenditure of limited judicial time” trying to define “elusive standards” in the law.

How does the Legislature fix the problems?

The Legislature might finally bring the statute into the 21 century, although these technologies were available before the calendar turned 10 years ago and so are long overdue. The idea that a fractured pinkie would be a “serious injury,” while back, shoulder and knee injuries that result in surgeries would not be, is a great example of how a law was turned on its head.

Introduced two weeks ago, the new bill would clarify the definition of the threshold, by specifically by further defining “serious injury” as:

  • a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or  cartilage;
  • injury to any part of the spinal column that results in injury to an intervertebral disc;
  • impingement of the spinal cord,spinal canal, nerve, tendon or muscle;
  • surgery

It should be noted that many of these things already might fall under the definition under the present definitions. The problem is, as Judge Victor pointed out, that it’s largely up to the judge, and the judges do not apply the law evenly. So that currently it’s a crap shoot on which judge (or appellate panel) is assigned to the case. Judge Victor was clear that we have slid a long way from the even administration of law.

Roy Mura over at Coverage Counsel has a different view, as he writes from the insurance company perspective. He sees an expansion of the injuries that qualify under the proposed changes. But he fails to take into account the essential ambiguity in the law as it tries mightily to define medicine, especially given that medicine has moved forward over the last 30+ years. Nor  has he accounted for the problems that Judge Victor discussed with the uneven administration of justice,  with some judges tossing out cases while others would allow the exact same ones to go forward. The bill leaves this essential fact-finding function to the jury, where it belongs.

Vagueness and ambiguity have no place in the law. It creates problems as courts get swamped with motions and appeals that they are ill-prepared to deal with if a legislature hasn’t done a good job of establishing definitions.

The bill would bring some fundamental fairness to New York’s No-Fault law, seeing to it that all people are treated the same.  And that can only be a good thing if you happen to be the person that was injured.

You can find the Assembly version of the bill with its sponsors, here:  Assembly Bill A10739

You should be able to find the Senate version here: Senate Bill S7518

 

March 19th, 2010

Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question

This case came down in February while I was on vacation and deals with several interesting issues relating to auto accidents, only one of which I’ll discuss here.

In a motor vehicle there are often multiple causes. In this case, it was a red light at issue. A truck and motorcyle collided. The plaintiff-motorcyclist moved for summary judgment, and the court denied it because he might have also been negligent.

This was error and the Appellate Division (First Department) reversed in Tselebis v. Ryder Truck Rental, holding that when a plaintiff moves for summary judgment, s/he is “entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question.”

In other words, it is not necessary to establish defendants’ negligence as the sole proximate cause of injuries in order to make out a prima facie case of negligence. To establish a prima facie case, a plaintiff “must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury.”

Big difference. If a jury finds that the plaintiff was also at fault, then an apportionment can be made, but that does not preclude summary judgment.

Also in this decision is discussion of the requisite elements of the Noseworthy Doctrine (lower standard of proof due to death, or incapacity that prevents recollection of events) and culpability for entering an intersection against the red light.

For more discussion of those, head to Lou and the Law.

 

August 22nd, 2008

Graves Amedment Upheld by 11th Circuit


The 11th Circuit Court of Appeals has upheld the Graves Amendment. That 2005 law protects car rental and leasing companies from claims of vicarious liability for injuries caused by their drivers.

The decision comes out of three consolidated suits in Florida, which had allowed (like New York) the injured to sue the owners of the cars, in addition to the drivers. The owners were held to be strictly liable for the conduct of the drivers if the drivers were negligent. This was a public policy choice made by the legislators of some states, since the owners, by being able to exercise some control over who drove their cars, were more culpable than the innocent victims.

But in 2005 a Republican congress decided to strip this power to control their own insurance laws away from the states, and preempted them by giving it to the federal government in the form of protection for the rental and leasing companies. (I wrote about my own rush to beat that law just days ago in The Million Dollar Listserv.) The hypocritical conduct by the Republicans in usurping state authority for the benefit of these corporations has been widely derided.

While insurance laws are strictly state matters, the court held the statute constitutional under the Commerce Clause, due to the use and impact on rented and leased cars across state lines.

Given the current business friendly make up of the Supreme Court, I doubt that an appeal to that court would be successful unless other Circuits divide the issue. This is, to my knowledge, the first federal appellate decision on the law.

See also my post from last September from one of the lower court decisions: Car Rental Immunity Law Held Unconstitutional By Federal Judge.

 

July 21st, 2008

Al Pirro Settles NY Car “Accident” Suit Involving Jeanine For 200K

Al Pirro Jr. last week quietly settled a lawsuit for $200,000 that involved Jeanine Pirro and her failed political campaign for Attorney General. Jeanine — also a former judge, District Attorney, failed Senate candidate against Hillary Clinton and now a talk show host — was in the backseat of her husband’s SUV on October 18, 2006 when it sideswiped a motorcyclist as they approached a light. The collision knocked him down, broke his ankle and sent him skidding along the pavement. The SUV was driven by a campaign staffer just weeks before the election.

The crash out on Long Island raised eyebrows when the police were accused of giving preferential treatment to the Pirros. While the officer on the scene first reported a collision between Pirro’s SUV and Scott Lieberman riding his Harley, that report was subsequently deep-sixed after the officer saw Jeanine Pirro in the back and saw that the SUV was owned by her husband. The second accident report didn’t have the Pirro vehicle in the accident. According to this New York Post story at the time:

Lieberman said that after talking to [Pirro driver] Horgan, cops stopped writing a two-vehicle accident report and started one saying he skidded off the road on his own.
“Investigation reveals no other veh. involved in accident,” the final report reads.

According to an interview I conducted with Lieberman’s counsel, Harlan Wittenstein, a copy of the original police report indicating a collision was given to Lieberman’s ex-girlfriend who had been riding ahead and saw the accident in her rear-view mirror as she pulled up to a stop light. The original report clearly has Al Pirro’s name on it as the vehicle owner. The subsequent police report only claimed a motorcyclist down with no contact and no Pirro name. The two reports are here: Lieberman.pdf

After learning the Pirros were involved, the police accused Lieberman of being a fraud as he was writhing in agony. Lieberman, who was taken to the hospital and needed surgery to fix his broken ankle, didn’t take kindly to the accusation.

After leaving the hospital, an angered Lieberman posted signs at the intersection where the collision occurred, whichwere seen by a pretzel delivery man on his regular route. The pretzel man had been directly behind the vehicles, saw the contact between the Pirro SUV as it changed lanes, contacted Lieberman, and his deposition taken.

The combination of the pretzel man’s testimony and the second copy of the accident report with the Pirro name on it, according to Wittenstein, helped to seal a settlement for a case that had originally been marked “no pay.” The police officer has apparently never been disciplined.

Al Pirro — a disbarred real estate attorney who was convicted of 66 counts of tax fraud, whose license has been suspended (and reinstated), has been embroiled in head-line grabbing extramarital affairs, and generally been a burden to his wife’s ambitions — is no doubt happy to get at least one legal problem behind him.

Photo credit: NY Magazine (story on the troubled marriage)

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More:

  • What Happens When You’re Run Down by Former DA Pirro? (Greenfield @ Simple Justice)