New York Personal Injury Attorneys Blog

Our Partner, Jeffrey Bloom, recently settled a medical malpractice case in New York Supreme Court, Nassau County for $3,375,000 for the wrongful death of a 46 year old husband and father of two young children in which the patient died on the operating table during the performance of back surgery.

This complex case involved surgical error by the vascular and orthopedic surgeons and anesthesia malpractice. It was alleged that major blood vessels were lacerated during the surgery resulting in acute blood loss, a fact confirmed by the Medical Examiner, that no timely repair was performed by the surgeons and that the anesthesiologist failed to recognize the emergency, perform resuscitation and treat the patient’s acute hemorrhage by administering adequate blood and blood replacement products.

The defendants asserted that the patient, who was unemployed and on disability, had serious cardiac conditions which significantly decreased his life expectancy.

The case settled after over three weeks of trial just before summations.

As a result of the settlement, the patient’s widow will have lifetime financial stability and her two children each will receive substantial funds including for their future college education.

Jeff commented "Despite the complexity and difficulty of this case I was motivated by the fact that the family depended upon me for their future. My goal, which I am pleased I was able to achieve, was to insure that they were financially provided for."

The attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz have years of experience representing patients who have been injured or have died as the result of medical malpractice.

In THOME v. BENCHMARK MAIN TRANSIT ASSOCIATES, LLC, 4th Dept. July 8, 2011, 2011 N.Y. Slip 5884, The Court denied the plaintiff construction worker's motion for summary judgment. Plaintiff was standing on a scissor lift and, when he repositioned the scissor lift to perform his work, one of its wheels entered a hole in the floor and the scissor lift tipped over, causing plaintiff to fall and sustain injury. In denying the motion the Court held;

"We agree, however, with the further contention of defendants that they raised a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted evidence that plaintiff was aware that holes had been cut into the concrete floor of the building in which he was working and that, on the morning of his accident, plaintiff had been specifically directed not to operate the scissor lift in the area
where the holes had been cut. Further, defendants submitted evidence that plaintiff drove the raised lift into that area while looking at the ceiling rather than where the lift was going. Consequently, “[u]nlike those situations in which a safety device fails for no apparent reason, thereby raising the presumption that the device did not provide proper protection within the meaning of Labor Law § 240 (1), here there is a question of fact [concerning] whether the injured
plaintiff’s fall [resulted from] his own misuse of the safety device and whether such conduct was the sole proximate cause of his injuries” (Bahrman v Holtsville Fire Dist., 270 AD2d 438, 439)."

In a dissent Justice Peradotto voted to affirm the lower court's granting of summary judgment stating;

"Contrary to the conclusion of the majority, however, I conclude that defendants failed to raise a triable issue of fact whether plaintiff’s actions were the sole proximate cause of his injuries. In opposition to the motion, defendants submitted the deposition testimony of the foreman on the project, who testified that, on the morning of the accident, he told plaintiff “to work in the center of the building” and away from the holes, which were located on the
“sides” of the building. According to the foreman, plaintiff’s accident occurred outside the area that the foreman defined as the “center” of the building, although he could not recall how far away from that area plaintiff was at the time of the accident. In viewing photographs of the work site, the foreman could not identify any “landmark” or other object demarcating the area he defined as the center of the building. Notably, plaintiff’s employer was hired to install struts throughout the entire building, including the area where plaintiff’s accident occurred, and the task required plaintiff to move the scissor lift around the building. In any event, even assuming, arguendo, that plaintiff was “specifically directed not to operate the scissor lift in the area where the holes had been cut,” as the majority states, defendants’ “nondelegable duty under [Labor Law §] 240 (1) is not met merely by providing safety instructions . . ., but by furnishing, placing and operating [safety] devices so as to give [plaintiff] proper protection” (Ewing v ADF Constr. Corp., 16 AD3d 1085, 1086 [internal quotation marks omitted] [emphasis added]; see Haystrand v County of Ontario, 207 AD2d 978). Here, “the fact that the scissor lift tipped establishes that it was not so ‘placed . . . as to give proper protection’ to plaintiff” (Ward, 13 AD3d 1098, quoting § 240 [1]). Thus, inasmuch as plaintiff established that the accident was caused, at least in part, by a statutory violation, his actions cannot be the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106)."

The New York Construction Accident Attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.

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By; Anthony Gair,

In personal injury cases predicated upon the negligent design of a product,(product liability cases), such as almost any type of machine which is to be used by people of varying training and skill it is imperative for the plaintiff’s attorney to understand the basics of machine design. This is crucial in New York where the plaintiff’s culpable conduct is a defense to a strict product liability action so that the percentage of fault for his injury may be, if not eliminated, reduced as much as possible. It is not enough for an attorney to simply ask a product design engineer at deposition how the product works. Such questions alone are pointless and will not result in a deposition which can be used to defeat a motion for summary judgment, or at trial, to impeach the product design engineer. As in any deposition the lawyer must ask himself what the purpose of the deposition is. Is it merely to gather information or is it to cross examine the witness so he will be pinned down at trial? In a product liability case in New York the plaintiff is allowed to serve extensive interrogatories. Hence if well drafted the plaintiff’s attorney will have most of the discovery needed for both deposition and trial. Hence it is submitted that the primary purpose of the deposition of a product design engineer is to cross examine him on the principles of design engineering. Similar to a deposition of a physician in a medical malpractice case where the plaintiff’s lawyer must know the medicine as well, if not better, then the physician the plaintiff’s lawyer must know the principles of design engineering as well as the design engineer. If one is not willing to learn this area there is no reason to undertake a complex product design defect case. The plaintiff’s lawyer must check the college and graduate school curriculum for the field of design engineering and read as many of the texts used in design engineering courses as possible.. If a lawyer is not willing to make this commitment he is better off referring the case to a specialist in product design defect cases. The following is a basic discussion of the principles of machine design.

Machine design is a sub-specialty of mechanical engineering. In designing machines, design engineers must take into consideration that a machine, will be used by people of varying intelligence, education and skill. “Human factors engineering, engineering psychology, and ergonomics are largely overlapping segments of a common area of interest: the analysis and design of the conditions affecting people operating in concert with machines”. 1

Ergonomics, or Human Factors Engineering and Design as it is commonly referred to in the United States, involves the consideration by the design engineer of human factors and characteristics when designing safety features into machines. The cardinal principal is that it is human nature to err, that is, people make mistakes. It is standard and accepted practice that the concept of human error be taken into consideration when designing a machine. A machine, must be designed to reduce, as much as is technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator causing injury or death.

In designing a machine a hazard analysis must be done. From a design engineering standpoint a hazard is a condition that has the potential of causing or contributing to injury.

Danger in the context of safety design engineering theory means a higher probability of the risk of an identified hazard causing injury. Risk is the probability of being injured by an identified hazard.

When a design engineer has identified a foreseeable dangerous hazard, there is a safety design priority recognized by all design engineers with reference to preventing injury from the identified hazard which is a follows:

A. Design out the hazard if one can do so without destroying the ability of the machine to function or utility of the machine.

B. If an identified hazard cannot be designed out of the machine without destroying its ability to function or utility the next goal of the design engineer is to guard against it causing injury by incorporating guards or other safety devices.

C. The last alternative is that if one can’t design out the hazard because doing so would destroy the utility of the machine and one can’t guard against it by incorporating guards or safety devices, the last priority is to warn about it. It is the ethical responsibility of the design engineer for the machine to develop a safe functional design which eliminates or greatly reduces the potential for human error on the part of the machine operator causing injury to him self or others.

The following are sample questions that should be asked in a design defect case at the deposition of the design engineer who designed the product;

Continue reading " Use Of The Principles Of Safety Design Engineering In a New York Personal Injury Case Based On Negligent Product Design " »

In Losito v Manlyn Dev. Group, Inc., 2011 NY Slip Op 05463, Second Department, June 21, 2011, the plaintiff was required to jump through some hoops but finally prevailed on his cause of action claiming a violation of Section 240(1) of The New York Labor Law.

On January 16, 2009 The lower court denied plaintiff's motion for summary judgment. Thereafter following a jury verdict for defendants and entry of judgment on same, The Second Department, on April 19, 2011, reversed the judgment, reinstated the 240(1) cause of action and granted plaintiff's original motion on his 240(1) cause of action. Based on the facts as set forth in the opinion it is difficult to understand why the motion was denied in the first place. The Court held as follows;

"The plaintiff, on his motion for summary judgment on the cause of action alleging a violation of Labor Law § 240(1), against the defendants Manlyn Development Group, Inc., and FB of Long Island, LLC (hereinafter together the respondents), established, prima facie, that the A-frame ladder on which he was standing was defective and collapsed, causing his injuries (see Monioudis v City of New York, 82 AD3d 945; Zhu Wei Shi v Jun Lan Zhang, 76 AD3d 558, 559; Sozzi v Gramercy Realty Co. No. 2, 304 AD2d 555, 556).

In opposition, the respondents failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560). In particular, the respondents failed to raise a triable issue of fact as to whether the foreman's act of stepping on the back of the plaintiff's ladder just before it broke was a "of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability" (deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448; see Quinteros v P. DeBlasio, Inc., 82 AD3d 861; Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173, [*2]175; Van Eken v Consolidated Edison Co. of N.Y., 294 AD2d 352, 353; Cordero v Kaiser Org., 288 AD2d 424, 426; Mooney v PCM Dev. Co., 238 AD2d 487)."
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The leading case on the question of “superceding cause” remains The Court of Appeals decision in Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831 (1983) which clearly set forth the circumstances under which a defendant will be relieved of liability by an intervening act;

“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant (see, e.g., Martinez v. Lazaroff, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148;Kingsland v. Erie County Agric. Soc., 298 N.Y. 409, 84 N.E.2d 38, supra; Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529; Hallenbeck v. Lone Tar Cement Corp., 273 App. Div. 327, 77 N.Y.S.2d 807, affd. No opn.299 N.Y. 777, 87 N.E.2d 679). When, however, the intervening act is a natural and foreseeable consequence of a circumstance created by defendant, liability will subsist (see Derdiarian v. Felix Constr. Co., supra; Paravi v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960; Prosser, Torts [4th ed.], Section 44, pp. 272-280).”

The New York Construction Accident Attorneys at Gair, Gair, Conason, Steigman, Mackauf, Bloom and Rubinowitz have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.