Category Archives: Personal Injury

 

May 8th, 2009

How Much Is That Mouse (Or Snake Head) In My Food Worth? — Updated

You see it every so often in the news, because the media just eats up these kinds of stories: The dead animal sitting in a plate of food at the restaurant. But the dead animal at the heart of the story is not supposed to be part of the food. This time it slithers into our view with a snake head that was found under broccoli at a TGI Fridays. Who knew that TGI Fridays even had broccoli? (h/t Overlawyered)

The story’s lede is this:

The sight of a severed snake’s head under his broccoli made Jack Pendleton lose interest in dessert. Pendleton said he found the head, the size of the end of his thumb, while eating Sunday at the T.G.I. Friday’s in Clifton Park. The chain restaurant said it regrets the appetite-killing error. Pendleton said he has no plans to sue.

I almost handled one of these myself a few years ago. A complaint came in to my office of a mouse that was baked into a hamburger bun. The bun, as seen in the picture here, had obviously not been eaten. But the site revolted the potential client and, to no great surprise, caused her nightmares and loss of appetite. She was a most unhappy camper.

Not being on trial at the time, and my curiosity piqued, I had her come in, took possession of the bag of buns, and sought out an expert to examine the critter. Who to call? I started with the Museum of Natural History, then tried the Bronx Zoo, a couple of vets, and after a dozen or so phone calls, found my way to a mouse lab at a leading cancer hospital. I had myself a bona fide mouse expert.

So I sent the goods off to my mouseologist for examination.

In the meantime, I ponder what, exactly, I am to do with this case? I sent out letters to potential defendants letting them know I represent the client. No demand of any kind, just a notification of representation since they already knew about the issue, and another to the NYS Department of Agriculture and Markets so that they could investigate.

Of course, that didn’t resolve the question of what, exactly, is a mouse (or a snake) in the food worth as compensation to an individual in such circumstances?

I queried some local counsel while scratching my head trying to decide what to make of this and while waiting for the expert to report back, appellate lawyer and wordsmith Jay Breakstone responded. With poetry:

A full mouse, I think,
Is not so distinct,
I seem to have seen,
One here in my sink.

But half a mouse, well,
That’s a mouse not so full,
Yet better than that,
It’s quite actionable.

A full mouse, I fear,
Is just not so rare,
Despite the view of,
A tail and some hair.

But half a mouse asks,
Where the other half is,
And that’s the mouse half,
Where a lawsuit might live.

And then my mouseologist got back to me with the results. She did this after taking photographs, cuts, and firing up the old x-ray machine to make sure. And as you can see from this last photo, it wasn’t a mouse. It’s a funny looking burn of the bread. The potential client, who had been sick to her stomach over this even though she hadn’t eaten any, was relieved. Letters immediately went out to those I’d previously contacted letting them know that the goods were good.

But the snake head at TGI Friday’s appears to be real, and so the question is clear: Where is the rest of the snake? Now this is not really an intellectual question for the customer who found it under his broccoli, because the response of getting sick to your stomach over something like this is a visceral reaction based on emotion.

In the article, the customer said he had no intention of hiring a lawyer. A perfectly logical first reaction for someone who would likely want to shake off the event and forget about it. As quickly as possible. But this is also part of the story:

When he started to eat his broccoli, he saw something gray on the plate he at first thought was a mushroom. “I start to turn it over. I see this gray-green patch,” he said.

Next he saw a V-shape that turned out to be the mouth of a snake. “I could see these black, rotted eye sockets on the top,” he said. The severed head also had bits of tendon and part of the spine attached, he said.

If the nightmares come and a loss of appetite ensues, that decision not to hire counsel could easily change. And that is because many traumas affect our intellects and our emotions in very different ways.
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Update: According to The Consumerist, which first broke the story, the snake head was not cooked with the broccoli, which seems to indicate something malevolent by either an employee or a customer.

Related: “Gross-Out” Food Stories – Cases We Do Not Take, But They Sure Catch Your Eye (Food Poison Blog)

 

December 9th, 2008

Frustrated Bronx Trial Judge Takes Aim at Appellate Court, Legislature And Attorneys Over No-Fault Law’s Serious Injury Standard

A clearly frustrated Bronx judge vented heavily in an opinion Monday on the vast waste of judicial resources that New York’s No-Fault law has wrought. Supreme Court Justice Paul Victor, trial judge in Vidal v. Maldonado, cited to legislative defects, inconsistent decisions from his superiors at the Appellate Division, First Department, and “cookie cutter” motion practice in implicitly urging legislative reform of the confusing law.

New York’s No-Fault law had originally been designed “to weed out frivolous claims and limit recovery to significant injuries.” In return, car accident victims received some guaranteed medical and lost wage benefits, regardless of who was at fault. (See New York’s No-Fault Law Problem With “Serious Injuries.”)

But instead, due to legislative failure to explain the terms it used in defining what constitutes a “serious injury” under the Insurance Law, it has become a morass of motion practice and inconsistent decisions. This results in “a great expenditure of limited judicial time” trying to define “elusive standards” in the law.

One part of the “serious injury” definition, for example, is that the injury results in “significant limitations of a body function or system,” while another definition is that the injury was a “consequential limitation of a body organ or member.” Justice Victor wrote of the legislature that “The enabling legislation for the No-Fault Law itself provides little or no guidance to the bench and bar as to the scope of the terms used,” and that with respect to the terms above “there appears to be no practical difference.”

Justice Victor has now seen enough, a fact that is evident in the first caption of his opinion: Another Frustrating Assembly Line “Serious Injury” Motion. He goes on to explain how so many of these motions are fought, from both the defendants and plaintiffs perspectives.

The judicial time spent is extraordinary, the judge pointed out. That is because

“a thorough review of the record and current appellate decisions requires a great expenditure of limited judicial time. In any event, the decision rendered is usually challenged and refuted by the losing side; and thus many (too many) of these cases are appealed , and many of those appeals result in non-unanimous (and sometimes acrimonious ) decisions which are often difficult to reconcile with prior precedent.”

He then goes on to discuss some of the precedent from the Court of Appeals, as well as the conflicting opinions of the Appellate Division, First Department, which reviews his decisions on appeal. And there seems to be little doubt they will be seeing this one.

One reason the appellate court is likely to see this is that Justice Victor explicitly rejected one of its opinions calling it “questionable and out of step with the more liberal guidelines provided by the Court of Appeals” with respect to how the law is to be applied. He did this while acknowledging that it is “a precedent which ordinarily would be absolutely binding on this Court.”

In his view, however, he had no choice in rejecting appellate case law. In a section of the opinion after the details of the case are explored — a section entitled Competing Statutes and Rules of Construction — “A Judicial Dilemna” — he says that due to conflicts, he must choose one or the other of how to approach the “difficult and frustrating” task of a judge weeding out frivolous claims or small cases, based solely on paper submissions.

According to the judge, “This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law.”

The decision is a must-read for any New York practitioner that deals with automobile cases and the “serious injury” threshold of our No-Fault insurance law. It is a terrific exposition on the confusing state of the law brought on by the legislature.

Links to this post:

A Serious Rant About the Permanent Consequential and Significant …
AUTO – SERIOUS INJURY THRESHOLD – INSURANCE LAW § 5102 Vidal v. Maldonado (Sup. Ct., Bronx Co., decided 12/8/2008) Okay, maybe “rant” is too harsh a term for the court’s critical exposition of the state of the common law on the “serious …
posted by Roy A. Mura @ December 29, 2008 9:07 AM

 

December 9th, 2008

Another Way Recession Affects Personal Injury Cases (Courthouse Closes Doors)

I’ve previously described how this particular recession may affect personal injury lawsuits, which are generally perceived to be recession proof given since folks get hurt regardless of how the economy is doing.

But problems in a severe one can come up be due to insurance companies going belly-up and forcing delays as the suits get managed by the State Liquidation Bureau. Or there can be problems financing the cases if credit lines dry up.

Now a third reason: Cash-strapped New Hampshire is suspending jury trials and leaving judgeships vacant.

 

December 4th, 2008

Wal-Mart Stampede Victim’s Family Brings Suit


The family of Jdimytai Damour, the Wal-Mart worker that was stampeded to death last week out on Long Island, has brought suit in New York, in Bronx County (where he presumably lives).

The stampede apparently occurred when a group of shoppers waiting in their cars rushed the doors when they opened, clashing with a group that was waiting on a “no-cutting” line. According to this Newsday account, an estimated 2,000 people were there.

A critical issue in the ability to bring suit was a determination of whether he was a Wal-Mart employee or not. Since he was a seasonal worker, I doubted he was employed by the retailer. If he was, then New York’s Worker’s Compensation laws would have prevented suit, as WC would provide the exclusive remedy. According to this Reuters account, however, the victim was an independent contractor, and not an employee.

I blasted Wal-Mart for the stampede as soon as the news hit for failing to have adequate security. Nassau County police made the same claim. Wal-Mart, however, claims that they had security in place.

Plaintiff’s counsel, Jordan Hecht, named Wal-Mart and the mall’s owner (Vornado Realty Trust), manager and security firm as defendants in the suit. According to Hecht in a statement he released:

“When they heard of how he was eventually killed, that he died of asphyxiation, they were visibly shaken. They are angry because this was preventable, and have therefore exercised their right to seek justice in the court”

A substitution of parties will no doubt take place in the future after a proper administrator or executor is appointed for his estate.

Ron Miller at the Maryland Injury Lawyer Blog, it should be noted, is a bit critical of the rush to suit, writing:

Do the personal injury lawyers who are trying the case lose credibility with the jury when they know the lawyer filed a lawsuit without knowing all of the facts that are the foundation for their case?

While I would ordinarily agree with Miller about the rush to suit, in this particular case I think there may be justification for doing it as long as the main parties can be identified, as it may bring witnesses to the attention of the lawyers who might not be too keen, for their own personal reasons, of approaching the police. Sometimes, a rush to suit may bring an appropriate dividend for the client.

Addendum: One other potential reason for quickly filing suit; a very angry family may have demanded it. This could be due to a hope that the publicity would hurt Wal-Mart, to see that it would never happen again, and/or to make sure the police did everything in their power to investigate. This is, of course, speculation on my part. But grief-stricken family members may be doing whatever they feel they can under truly horrible circumstances.

Updated:

Links to this post:

“5 minute after” suits and the wal-mart trampling
ron miller at maryland personal injury thinks the filing of suits only days after an event like the long island wal-mart trampling, at a point when key facts relevant to the nature and extent of liability have yet to be brought out, …
posted by Walter Olson @ December 04, 2008 10:52 AM

 

December 3rd, 2008

Wal-Mart Liability in Stampede Death (Civil and Criminal) (Bumped and Updated)

(Updated 12/3/08 at bottom)
The stampede at a Long Island Wal-Mart that resulted in the death of a worker yesterday was rather predictable. Every year the news cameras are out early on Thanksgiving Friday as the stores engineer crowds to come in to their stores for “door buster” bargains.

The stampedes result from lousy crowd control for which it isn’t difficult to foresee civil liability. But while the police are out looking for the stampeders, they should also be looking at Wal-Mart’s own conduct and potential charges of criminal negligence.

(original publication, 11/29)
———————–
Updated 12/3/08:

According to CNN, two other individuals that were injured have filed a $2M lawsuit against the Nassau County Police citing poor crowd control by the police. The police claim non-existent security by Wal-Mart.

At the outset let me note that the statements in the article about a lawsuit are likely an error in reporting, since a claim against the county must be preceded by a Notice of Claim, which Notice must be filed within 90 days. The Notice forces potential litigants to state an amount of damages, whereas the lawsuit forbids stating an amount (see New York Cleans Up Claims Act).

Nevertheless, the interesting thing about the article are the statements that Wal-Mart failed to provide security for crowd control, despite the fact that such a stampede was not only predictable, but such things are often sought after by merchants for the publicity they get for their “door buster” deals on Thanksgiving Friday.

According to the article:

Lt. Kevin Smith of the Nassau County Police Department said, “it’s our policy that we don’t comment on open litigations” and would not respond directly to [plaintiffs’ counsel] Mollins and his clients claim that officers left the scene.

He said it is “incumbent upon the store to provide security” but noted that there was no security force present when officers responded to an initial phone call after 3 a.m. Friday for an unknown disturbance at the site.

Smith said the officers noticed a lack of order with the crowd and began to organize them into a line, remaining on site for about 30 minutes until the crowd had become orderly.

Of course, it is not the duty of the Nassau County Police to provide crowd control on private property. That duty belongs to Wal-Mart who should have had that set up long ago. Whether the police subsequently assumed that duty by their actions is another matter, but clearly the duty in the first instance is with Wal-Mart knows well this is an issue on this particular shopping day.

If the part about Wal-Mart not having security is accurate, then they very clearly dropped the ball and endangered public safety by not having crowd control personnel on the scene. There is really no excuse for that.

(Hat tip to Overlawyered)

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Update 12/4/08: Wal-Mart Stampede Victim’s Family Brings Suit

Links to this post:

wal-mart trampling suit
father and son fritz mesadieu and jonathan mesadieu say they were in the crowd during the now-notorious black friday crowd-crush episode at a long island wal-mart. they say they were left with neck and back pain for which they want > …
posted by Walter Olson @ December 03, 2008 12:26 AM