July 30th, 2007

Every Dog Gets One Bite

A child suffered serious personal injuries when bitten on the face by a dog, and brought this New York action. But the plaintiff’s attempt at summary judgment was rejected. Why?

The old saying in the title comes from the concept of notice. As in, the owner of a dog that bites someone must have notice of a dog’s vicious propensities in order to make that bite actionable.

In Earl v. Piowaty decided last week by New York’s Appellate Division (3rd Dept.), the court returned to the time-honored principle that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities.”

But, when the only evidence of a prior “viciousness” was a prior “nip” that the child described as “so minor that it did not break the skin or hurt me,” then summary judgment would not be granted. Normal canine behavior does not qualify.

Woof.

July 24th, 2007

NYC Woman Sues Con Edison Over Steam Pipe Explosion

The first of what will surely be many lawsuits over the steam pipe explosion last week in mid-town Manhattan has been filed against the utility company, Con Edison. The plaintiff, whose sister was killed at the World Trade Center in the September 11th attack, suffers from post-traumatic stress disorder.

The explosion — just one block north and one block east of my office — certainly rattled more than a few as they fled the scene. In my own office suite, those still in the office heard the eruption and felt the building shake, as the alarms went off and evacuations took place down the stairwells. Out on the streets police were yelling at people to run away from the area, with more than a few pair of women’s shoes left by the wayside as folks sought refuge.

In addition to a number of personal injury suits I expect to be filed against Con Ed, there will no doubt be many commercial suits. The site of the explosion, which I walked past just an hour ago as I went for lunch, is still sealed off, and with it access to many businesses.

July 20th, 2007

New York Appellate Court Decides Eyes Are Not Window To Soul

Poets will not be happy. Nor lovers. Nor anyone else that has gazed into the eyes of another to see what they say.

A New York appellate court has decided that the loss of an eye is not a “grave injury” under the Worker’s Compensation law. Because the victim had a prosthetic eye, the court ruled, he didn’t have a “permanent and severe facial disfigurement” as defined by the law.

The Court wrote:

Here, the record contains no evidence that plaintiff suffered a severe facial disfigurement as a result of the injury sustained. Although a surgically removed eye clearly results in a permanent condition, plaintiff wears a prosthesis which is removed only once a year for cleaning. As Supreme Court aptly noted, the photographs of plaintiff wearing the prosthesis demonstrate little difference, if any, in his facial appearance before and after the accident.

Who needs legislative tort “reform” to strip away rights when a conservative judiciary can do it for you?

Perhaps the plaintiff would have had better luck if he had quoted President George W. Bush discussing Vladamir Putin:

I looked the man in the eye. I found him to be very straight forward and trustworthy and we had a very good dialogue

Of course, that didn’t work out so well, so maybe the court was right.

This miserable decision can be found here: Giblin v. Pine Ridge Log Homes, Inc.

(Eric Turkewitz is a personal injury attorney in New York)

July 17th, 2007

Bork’s Attorney, Randy Mastro, Picked For Giuliani’s Justice Advisory Committee

Rudy Giuliani unveiled his “Justice Advisory Committee” today, revealing that Randy Mastro, the Gibson Dunn attorney handling Robert Bork’s slip-and-fall case against the Yale Club, is on the list.

Judge Bork — the former SCOTUS nominee, conservative favorite and tort “reformer” — has been widely ridiculed and lampooned for not just bringing a routine personal injury action for “in excess of $1,000,000” for injuries that appear to be rather limited, but having also asked for punitive damages. The original complaint also included flat-out frivolous claims for attorneys fees and pre-judgment interest, neither of which can be obtained in New York.

So this raises two questions for Giuliani: First, do you want someone on your Justice Advisory Committee that has not only just brought a case with frivolous claims in it, but done so on behalf of a tort “reformer?” Will this reassure conservatives, who are already skittish over Giuliani’s social positions and have concerns about his judicial appointees if elected President?

And second, as I pointed out in Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages, do you want someone picking judges that failed to draft a simple personal injury complaint, even when extreme caution was needed for a high-profile client? And then failed to correct all the errors in the amended complaint even after a hurricane of bad press? He was not only out of his depth on this case, but more importantly, apparently didn’t seek adequate counsel on how to correct the mistakes. Will that type of throw-caution-to-the-wind conduct appeal to conservatives?

Mastro, by the way, is Giuliani’s former Deputy Mayor. He might have fine political skills, and even have terrific skills in his particular areas of expertise. He might be a great guy to have a beer with. Having never met him, I wouldn’t know. But having laid bare less than stellar legal skills in a routine case with a high-profile client, and having made frivolous claims in court on behalf of that client, is this the guy conservatives will want on a judicial selection committee?

Bork’s New York Personal Injury Suit Is Answered By Yale

The Yale Club has Answered Robert Bork’s slip and fall personal injury case. Bork — the former SCOTUS nominee, conservative favorite and tort “reformer” — had sued the Yale Club for causing him to fall as he attempted to step up to the dais to give remarks. His federal suit, started in the Southern District of New York for “in excess of $1,000,000” plus punitive damages, has been met with widespread ridicule, as noted at the bottom of the post linked above. The then 79-year old former jurist claimed there should have been a step and/or handrail for him.

The Answer is here: YaleClubAnswer.pdf.

The Amended Complaint that it responds to is here:Bork Amends Lawsuit, Keeps Claim for Over $1,000,000 Plus Punitive Damages

With Yale now answering, Judge Bork is unable to voluntarily dismiss his case under FRCP 41 without prejudice and re-start it in New York Supreme Court, a more favorable venue as I discussed in What Should Bork Do Now?

To no great surprise, the Yale Club denies the allegations of negligence, specifically blames Judge Bork for the fall, claims the risks incident to “the situation” were open and obvious, and asserts that he has already received some remuneration for his economic loss.

Yale Club counsel is Eric Schnittman, who does not appear to have a website or much in the way of available information. New York’s court database lists him as a 1983 graduate of Fordham Law School.

The matter has been assigned to Judge Naomi Buchwald, appointed in 1999 by Pres. Clinton.

(Eric Turkewitz is a personal injury attorney in New York)