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New Tort Definition Expands Trespassers’ Right to Sue

A recent article  explains “a new Restatement of Tort (ROT) approved in April 2010 by the American Law Institute that alters the landowner-trespasser relationship—and has the potential to provide a trespasser with the legal means to sue a homeowner or association for injuries. It says what a court should do is give trespassers the same duty of care given to a customer coming to a business or a visitor coming to a house.”

Currently, New York and California are the only states in the nation in which a landowner can be held liable for injuries sustained by a trespasser.  This means that a person who enters another’s property without legal right or permission and sustains an injury, can sue the land possessor for that injury; making this an important issue for everyone in New York. This session, the Lawsuit Reform Alliance of New York secured the introduction of bipartisan legislation which would prevent a flagrant trespasser from suing a landowner and recovering damages. This legislation dials back such broad and open-ended liability exposure by codifying traditional common law liability rules relating to trespassers that exist in most other states. The bill protects landowners from the unwarranted expansion of liability suggested in the Restatement (Third) of Torts, and this codification of the common law ‘no duty to trespassers’ rule is an important step in protecting landowners.

The ROT does not change any state law, but rather acts as a reference for judges on each state’s tort threshold.  ”PCI and the American Legislative Exchange Council (ALEC) fear this particular update could open a loophole for potentially costly litigation against landowners”. The ultimate impact of this, aside from the clear unfairness, is the potential increase of insurance premiums for homeowners and businesses.  These high rates already impact every New Yorker through higher insurance costs, higher taxes, and increased cost of goods and services.

LRANY will continue to fight for the rights of property owners in this upcoming session! see our memo of support.

Contact your elected officials and urge them to pass this legislation to bring commonsense back to NY!

Day before ‘Loser Pays’ launches, Beaumont lawyers file 59 lawsuits

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On the day before ‘loser pays’ tort reforms went into effect, Golden Triangle attorneys made a mad dash to the Beaumont courthouse, flooding the District Clerk’s Office with nearly 60 fresh lawsuits.

On May 30, Gov. Rick Perry signed off on House Bill 274, which includes a “loser pays” component designed to impede frivolous lawsuits in Texas.

The bill went into effect on Sept. 1 and calls for some civil plaintiffs who sue and lose to pay the court costs and attorney fees of those they sued. The law also creates expedited civil actions for cases less than $100,000 and allows judges to dismiss meritless lawsuits.

Most likely hoping to avoid that costly outcome, Beaumont attorneys filed 59 lawsuits on Aug. 31, a search at the Beaumont courthouse revealed.

Out of the 59 lawsuits submitted, 44 claims were marked as personal injury lawsuits, and encompass plaintiffs who allege they were injured because of toxic chemical exposure; medical malpractice; and even rampaging cow attacks.

Read More from the Texas Tribune.

These Texas trial lawyers are simply strengthening the case for ‘Loser Pays’ with this last minute try at a “jackpot justice” case.

New York needs these reforms to stop the frivolous lawsuits in our state! 

LRANY Celebrates the Defeat of Multiple Trial Lawyer-Backed Bills and the Introduction of Pro-Reform Legislation

On June 24th the Senate and Assembly adjourned at the call of the Majority Leader and Speaker, effectively signaling the end of the 2011 legislative session. Throughout the year, the Lawsuit Reform Alliance of New York actively engaged members of the legislature to fight for meaningful lawsuit reform in our state. While the State’s legislature is notoriously lawyer-friendly, there were several notable positive outcomes this session. Governor Cuomo’s ethics reform bill would increase accountability and shine a light on lawyer-legislators’ potential conflicts of interest. Additionally, LRANY was responsible for introducing legislation which would protect landowners from lawsuits by trespassers. As expected, we saw a which LRANY fought aggressively. Most notably, LRANY blocked a devastating bill which would have granted private attorneys the full powers of the Attorney General under the Martin Act, and halted a package of bills which would vastly increase medical malpractice lawsuits.

The Lawsuit Reform Alliance will continue work tirelessly to make lawsuit reform a reality in New York, and provide a counterbalance to the heavily funded lawyer lobby. The following is an account of this session’s achievements.

Ethics Reform (S.5679 / A.8301)

Passed Senate and Assembly

The Lawsuit Reform Alliance strongly supported the Public Integrity Reform Act of 2011, which passed both the Senate and Assembly on June 13th. This legislation would require lawyer-legislators to disclose their outside income and names of clients who do business with the state. Currently, forty-five legislators report earning outside income practicing law. This measure will shed light on conflicts of interest currently hidden from public view.  Many thanks to our supporters and allies for helping get this important measure passed.

Landowner Protection (S.5091/A.7590)

Referred to Senate Judiciary and Assembly Judiciary

The Lawsuit Reform Alliance secured the introduction of legislation which would prevent a flagrant trespasser from suing a landowner and recovering damages. Senator Jim Seward (R, Oneonta) and Assemblyman William Magee (D, Oneida) introduced this legislation in early May.  Currently, New York and California are the only states in the nation in which a landowner can be held liable for injuries sustained by a trespasser, making this an important issue for every landowner in New York. The bill protects landowners from the unwarranted expansion of liability suggested in the Restatement (Third) of Torts, and this codification of the common law ‘no duty to trespassers’ rule is an important step in protecting landowners. By targeting judiciary committee members and majority party legislators, LRANY and our supporters recently secured co-sponsorship by Senator Patricia Ritchie (R, Watertown).

Expert Witness Disclosure

Currently, timing requirements for disclosure of expert witnesses are set by court rule in each judicial district.  In many districts, parties are not required to disclose expert witnesses until as late as 30 days prior to trial.  This imbalance leads to widespread “trial by ambush”, giving the plaintiff an unjust advantage over the defendant. LRANY has drafted legislation which would equalize expert witness disclosure rules and require the plaintiff to disclose expert witnesses at the filing of the note of issue, leveling the playing field in civil suits. Meetings with potential sponsors are ongoing.

Blocked Martin Act Expansion Bill (S.4497/A6060A)

Halted in Senate Consumer Protection and Assembly Codes

Assembly Bill 6060A and its Senate counterpart S.4497, sought to expand the broad powers of the “Martin Act” to private attorneys acting on behalf of pension funds of 100 or more members. Enacted in 1921, the Martin Act was designed to allow the Attorney General to file civil actions for violations. Under this legislation, private attorneys would be granted the powers of the Attorney General and not be required to prove damages, reliance, or intent to defraud. A mere typographical error could give rise to a suit under this proposed bill. This legislation would allow private attorneys to essentially force public companies to settle even the most frivolous suit, devastating the economy and costing thousands of jobs. Throughout the legislative session, LRANY aggressively targeted committee members in the Senate and Assembly, as well as the leadership in both houses, and as a result the bill was removed from committee agenda…twice. In the most recent case, the chairman was unwilling to bring the bill to a vote due to an overwhelming lack of support.  After informational meetings with LRANY staff and our allies, six sponsoring legislators removed their names from this dangerous bill, sending a strong message to their peers in the capitol – New Yorkers will not stand for another trial lawyer payday bill.

Halted Attorney Fee Hike (S.2541)

Halted in Senate Judiciary Committee

Under current New York Law, the percentage of an award which may be taken by an attorney in a medical malpractice is limited by a sliding scale. As the size of the award increases, the percentage a lawyer may take decreases. This ensures that victims get the compensation they deserve, and helps prevent attorneys from seeking excessively high awards. This proposed legislation, which would remove the current fee schedule, amounts to a multi-million dollar payday to attorneys across the state. It is estimated that this legislation would increase malpractice premiums by up to 40%, or $640 million, further exacerbating New York’s medical liability crisis. The Lawsuit Reform Alliance engaged legislators on both sides of the aisle on this critical issue, ensuring that it was never brought to a vote in committee.

Medical Malpractice Package (S.3296/A694; S.5242/A.4852; S.3766/A.625)

S.3296/A.694 Halted in Senate Rules; Passed Assembly

S.5242/A.4852 Halted in Senate Judiciary; Halted in Assembly Codes

S.3766/A.625 Halted in Senate Rules; Laid aside on Assembly Floor

 

A package of three bills would have devastated New York’s health care system and increased medical liability premiums statewide by as much as 35%, or $560 million. The Lawsuit Reform Alliance, along with members of the medical community, engaged legislators in both houses to ensure that none of these bills became law.

 

The Lawsuit Reform Alliance has actively addressed many priority issues this year. As session comes to a close, we remain committed to the fight for common sense legal reforms.  New York’s legal system is consistently rated among the worst in the nation, with tort losses exceeding $16 billion annually.  As one of the most litigious states in the most litigious country in the world, the road to reform in New York is long, but the rewards will be great.

We would like to express our sincere gratitude to all our members, supporters, and affiliates. The strength of our organization is measured by the support of those who are committed to the cause. Thank you for making this year’s legislative session a success.

 

Trial Lawyers on the Loose in the Capital

LRANY Urges Strong Opposition to Trial Lawyer Payday Bill

Senate Bill 3766 (Bonacic) and Assembly Bill 625 (Weinstein) are on the floor in their respective houses, and may pass as soon as today. Disguised as a minor legal change, this legislation would unjustly force a non-settling defendant to make critical and costly decisions without necessary information.  Worse, the bill opens a loophole where a plaintiff could receive more than a jury has awarded.  A few key facts about this legislation:
  •  Pressures on defendants to settle – those who do not settle must roll the dice and risk paying more than their fair share.
  • According to Greater New York Hospital Association estimates, the bill would raise medical liability costs by 5%, or $80 million.
  • Would make it less likely for a doctor or hospital to take a case to trial, even if they have a strong case.
  • This bill would increase the number of malpractice cases which are settled, which is unnecessary. Currently, 90% of malpractice cases are settled because going to trial is extremely costly. In fact, 28 percent of medical malpractice cases are settled in the absence of any proof of negligence.

This legislation is a sop to the Trial Bar and would reduce the tort system to a gamble, increasing costs to taxpayers, doctors, and hospitals while enriching trial lawyers. Already listed as a “Crisis State” for medical liability by the American Medical Association, this legislation would exacerbate the situation by encouraging doctors to flee the state, driving up healthcare costs, and ultimately impacting New Yorkers’ ability to access care.

Please send a message to your elected legislator by clicking here!  Tell them that New York can’t afford to keep making life better for the trial lawyers.

New Budget a Failure for New Yorkers but a Victory for the Lawyers

(ALBANY)  The budget agreement announced between Governor Cuomo and the leadership of the New York State Senate and Assembly does a disservice to all New Yorkers by ignoring one of the key elements of Governor Cuomo’s Medicaid Redesign task – the establishment of a cap on non-economic damages in medical liability cases.

“This budget hands a huge victory to New York’s personal injury lawyers while the rest of us will lose,” said Francesca Sommer, executive director of the Lawsuit Reform Alliance of New York State (LRANY).  “Health care costs will continue to rise, doctors will continue to flee the State and the message has been sent that many of our politicians still remain in the clutches of the lawyers’ special interests.”

Governor Cuomo should be applauded for taking the initiative and having the courage to initially propose these historic reforms.  LRANY members and all New Yorkers take some solace in knowing that New York’s chief executive recognizes the need for lawsuit reform in our state.

“We will continue to work to educate New Yorkers and their elected officials about the opportunity that was missed here.  We have a budget deal that puts the health care and livelihood of millions of New Yorkers at risk … but not the lawyers,” said Sommer.