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Paying Off Careless People

By: Michael Seinberg

The economic and social cost of lawsuits are well-known and much discussed, especially here in New York State, where taxpayers are on the hook for over a billion dollars annually for settlements and judgments. This issue was brought into very sharp focus recently during a contentious city council meeting in Troy, NY.

The problem arose when the council voted 6-2 to settle a lawsuit for $15,000 that a resident had filed against the city. The plaintiff, one Ronald Nicholas, drove a golf cart down a fairway slope on the city’s Frear Park Golf Course in a botched effort to retrieve his ball. In his haste, he managed to flip the cart several times ejecting his passenger, who was unharmed, and injuring himself. According to published reports, Nicholas was trapped inside the cart and tore his left rotator cuff, requiring surgery. His claim was that there were no signs suggesting it was a bad idea to drive a golf cart down a steep hill on a fairway and thus, he wasn’t at fault.

As least one city council member disagreed and voted against the settlement, which was recommended by the city’s corporation council. “He was either drunk and stupid or just stupid and I’m not going to give a man $15,000 for that,” Councilman Kevin McGrath said. One of McGrath’s cohorts on the council, Bob Doherty didn’t agree, suggesting that commenting on Nicholas’ intelligence wasn’t appropriate.

Cases like this play out with alarming frequency in town halls and county legislatures across the state – claims that are technically meritorious (as defined by the law), yet utterly ridiculous. Liability may not be certain, but the settlement amount is carefully calculated to be just a tiny bit less than the city would pay to fight the case. The rational, risk-averse, town manager or city council cuts a check, and the plaintiff and his lawyer split the spoils. “Justice” is served, but are residents better off?

Is this the best way to resolve cases?  Recently, the New York Times reported that New York City is taking a different tack and fighting more of these suits. Along with other large cities, they are now instructing their attorneys to aggressively fight nuisance suits in order to send a message to the plaintiff’s bar. This approach, while costly initially, worked well for Chicago, which saw a dramatic decrease in litigation.

On the extreme opposite end of the spectrum, Yuba City, CA recently paid a “serial plaintiff” $15,000 to stop filing frivolous lawsuits. Will this approach pay off for the taxpayers? Somehow, that seems unlikely.

As taxpayers, we’re all footing the bill for these lawsuits. Troy will undoubtedly be putting warning signs on the golf course to avoid future cart-related issues. Of course, don’t be surprised when someone sues when they run into the warning signs.

The New York Times: Fighting Suits, Not Settling Them

LRANY Executive Director, Thomas B. Stebbins, recently had a letter to the editor published in the The New York Times which highlighted the importance of fighting lawsuits instead of settling to curb frivolous litigation in NYC.

“To the Editor:

Re “To Curb Suits, City Now Opts to Fight Them” (front page, Feb. 26):

In 2012, New York City spent over $500 million on litigation — compare that with Chicago’s litigation costs of roughly $65 million in the same year.”

Read Full Letter

FOR IMMEDIATE RELEASE: ADVOCATES URGE GOVERNOR AND LEGISLATURE TO REFORM NEW YORK’S CENTURY OLD SCAFFOLD LAW

ALBANY, NY– Hundreds of advocates from both the public and private sector are urging Governor Cuomo and legislators to take action and reform the unfair absolute liability standard of century-old Scaffold Law.  That provision of the Scaffold Law drives up to cost of every public and private construction project in New York because building owners and contractors are held “absolutely liable” for “elevation related injuries,” regardless of the facts of the case, or the real liability for the injury.  Scaffold Law Reform advocates are supporting bi-partisan legislation sponsored by Assembly Majority Leader Joseph Morelle and Senator Patrick Gallivan (A.3104/S.111). 

On Tuesday, February 12th advocates ascended on the State Capitol in Albany for a Scaffold Law Reform Advocacy Day to meet with elected officials and voice their support for rational reform to the Scaffold Law.

The Scaffold Law is an anachronism that continues to exist at the expense not only of the construction industry, but also the economy, state and local governments, school districts, small businesses, farmers and taxpayers. Public projects, like upcoming the Tappan Zee Bridge rebuild, cost more in New York due to the absolute liability standard, severely limiting New York’s ability to keep infrastructure safe and rebuild effectively after events like Superstorm Sandy.

New York remains the only state in the nation with such an absolute liability standard.  A comparative market analysis demonstrates that insurance costs on public and privately financed construction projects would be significantly lower with scaffold law reform. New York’s Scaffold Law predates the Occupational Safety and Health Administration, Workers’ Compensation Law, state regulations, local laws, and construction industry best practices that provide rigorous safety protections to workers. ”

READ FULL RELEASE

MEDIA ADVISORY: Advocates To Gather At State Capitol To Urge Governor And Legislature To Reform New York’s Century Old Scaffold Law

      FOR RELEASE: Friday, Feb. 8, 2013

CONTACT: Phoebe Stonbely (518)708-3578

Carl Zeilman (518) 221.6989

-MEDIA ADVISORY-

ADVOCATES TO GATHER AT STATE CAPITOL TO URGE GOVERNOR AND LEGISLATURE TO REFORM NEW YORK’S CENTURY OLD SCAFFOLD LAW

Law limits progress on protecting public from natural disasters, better schools, roads, bridges, and hospitals while contributing to double-digit unemployment

ALBANY, NY – Hundreds of advocates from various professions will gather at the State Capitol in Albany, NY on Tuesday, February 12 to urge Governor Andrew Cuomo and Legislators to take action and reform the unfair absolute liability standard of century-old Scaffold Law.  Attendees will hear from several scheduled guest speakers who will discuss the provision of the Scaffold Law that drives up to cost of every public and private construction project in New York because building owners and contractors are held ‘absolutely liable’ for “elevation related injuries,” regardless of the facts of the case or the real liability for the injury.

Scaffold Law Reform advocates are supporting bi-partisan legislation sponsored by Assembly Majority Leader Joseph Morelle and Senator Patrick Gallivan (A.3104/S.111). 

 

INTERVIEW AND PHOTO OPPORTUNITIES AVAILABLE:

WHO:             Advocates in support of Scaffold Law Reform

(Please see attached list of local advocates available for interview, starting today)

WHAT:          Scaffold Law Reform Advocacy Day

WHEN:          Tuesday, February 12, 2013

8:30 am – 2:00pm

WHERE:       EmpireStatePlaza Concourse

Meeting Room 2

 

# # #

Governor Cuomo Signs Notice of Claim Legislation on Condition of Chapter Amendment

By: Scott Hobson

Last June, in the final hours of the final day of session, the legislature passed a bill titled the “Uniform Notice of Claim Act,” which would streamline the process for suing municipalities and government entities. Certainly simplifying the process of getting justice is a worthy cause, but in this case, as is often the case with public policy, the devil was in the details.

The bill contained a seemingly innocuous provision, overlooked by many – a few words of language that could allow cases that had previously passed the statute of limitations to be reopened. Reopening “time barred” cases is somewhat murky business – defendants must be able to know with certainty that they will not have to face old claims from which they cannot adequately defend themselves. In criminal law, retroactive legal changes violate the U.S. Constitution – the line in civil law is far less clear.

Beyond compromising defendants’ right to a fair defense, we expressed concerns about the timing. Fighting stale lawsuits requires lots of staff and no small amount of money – two things that local governments are conspicuously lacking. As written, the proposal would put even more strain on taxpayers at a time when too many local governments are on the brink of insolvency, schools are struggling to provide even a basic education, and the state’s fiscal sustainability is being seriously questioned.

Despite the bill being “freight trained” through the senate and assembly and passed without a word of meaningful debate in a matter of hours, advocates were able to make our voices heard. Appealing to the Governor, LRANY and local government groups from across the state, including the NY Conference of Mayors and the Association of Towns, were able to express our concerns with the bill before it landed on Governor Cuomo’s desk.

On December 17, Governor Cuomo signed the bill into law, but in keeping with his commitment to reducing costs to taxpayers and local governments, included a caveat that the offending provision be removed:

“The legislature has agreed to a chapter amendment to improve the process described in the bill for service of notice of claim, correct technical errors and ensure that entities will not face shortened time periods within which to investigate claims. On that basis, I am signing the bill.”

We applaud Governor Cuomo for injecting a measure of sanity and common sense into a well-meaning but flawed piece of legislation. The resulting bill is a compromise that we can live with, and given New York’s track record on lawsuit reform, that’s quite an endorsement.

 

Doctor, It Hurts When I Do This!

By: Michael Seinberg

“Doctor, it hurts when I do this,” said the patient.

“Well, then don’t do that,” said the doctor. Old joke, we’ve all heard it except maybe for Mirit Rose Jaron, of East Greenbush, NY who seems to be living it. Ms. Jaron is suing the city and Central Amusements International, the company that runs the rides at Coney Island because she claims she was injured on September 17, 2011 (over a year ago for you calendar watchers) when she rode the Cyclone.

For non-roller coaster fans, the Cyclone is a legendary 85-year old ride that generations of people have ridden without filing lawsuits. Some have even ridden it multiple times, litigation free. In any case, Ms. Jaron claims that on her fateful ride (no word on whether her lawyer was with her at the time) she was injured when the coaster took a steep drop at high speed. Ummm, that’s what roller coasters do…..

Anyway, her suit claims that she suffered “serious and permanent” injuries, though it doesn’t actually say what they were. She further claims the operators allowed the coaster to operate at, “A dangerous, excessive and unsafe rate of speed.” Isn’t  the whole point of riding a roller coaster a controlled adrenaline rush without the danger of a speeding ticket?

Just to add insult to alleged injury, Ms. Jaron also claims that the folks running the ride failed to, “Safeguard the life and limb of riders,” and didn’t, “have seating in the roller coaster with proper neck and head support.” Lady, the coaster is 85 years old! You, are 28. Do we see a problem here? To cut to the chase, a young healthy person gets on a ride designed to hurtle you around at high speed. It’s been doing so with no major incidents for the better part of a century but suddenly it’s dangerous?

I think we can all agree that this is a yet another example of a greedy lawyer and client looking to sue our cities and empty out their pockets. With no specific injuries listed, 14 months of elapsed time and a defendant that is self-insured, this one ought to end up in the dictionary as a definition of frivolous lawsuit. Next she’ll be suing Nathan’s because the hot dog she upchucked after her ride on the Cyclone didn’t taste as good coming up as it did going down.

Stupidity, Storms and Lawsuits

By: Michael Seinberg

Unfortunately, the surge of lawsuits stemming from superstorm Sandy is just getting started.  And it’s becoming clear that the legal concept of force majeure, also known as “acts of God,” which hasn’t stopped lawyers in the past, certainly won’t slow them down now. Ironically, this particular suit centers around homeowners whose property was not damaged by the storm.

A New Jersey couple, Harvey and Phyllis Karan, own a $1.7 million home along the ocean on Long Beach Island. A couple of years ago, the federal government spent $25 million to create a series of large sand dunes along that same 1.1 mile stretch of beach in order to protect the homeowners there. With me so far?

So are all these beach dwellers now safer and happier? Nope. The Karans sued after the local government had to use eminent domain to seize enough beachfront to create the dunes. The resulting 22 foot dunes reduced the Karan’s property value by $500,000 (they claimed) because it diminished their ocean view. So they convinced a jury that they’d been grievously harmed and said jury (likely their neighbors) awarded them $375,000.

So now Sandy swings on by, laying waste to a good portion of the Jersey Shore – but the Karans and their neighbors are absolutely fine, thanks to that highly offensive sand dune, no less. But do they offer up thanks, pull the suit and go away? No sir! While thousands of other people are homeless or faced with huge bills to rebuild, the Karans’ attorney says the storm changes nothing and the suit, which now sits in state Supreme Court, will move forward.

If these money grubbers win this suit, then the precedent will do nothing but continue to strain and damage an already fragile state economy and clog an overworked court system. Were I sitting on the bench, I would toss the case, and then send in a bulldozer to remove the dunes from in front of the Karans’ home. I also might slip the dozer driver an extra $20 to accidently take a chunk out of their ego palace.

Talk about biting the hand that feeds. Here’s a decent use for federal money that actually worked as designed and all these people and their lawyer can do is complain about perceived property values. If I was a potential buyer and saw that the dunes has saved the home from Sandy, I’d pay more, knowing the house was that much safer. But then my brain runs on logic, not greed.

Slow Economy Could Boost Efforts to Reform Scaffold Law

By: Scott Hobson

New York’s glacial economic recovery and strained municipal budgets could create incentives for lawmakers to advance reforms to the Scaffold Law, as reported by Peter Rugg in this week’s City & State. Quoted in the piece, Tom Stebbins, Executive Director of the Lawsuit Reform Alliance of New York, highlighted the fact that local governments – and ultimately taxpayers – are paying a steep price for this antiquated law.

“Some of the largest cases against schools and municipalities every year are scaffold-related…These wouldn’t be valid in any other state in the union, and we’re talking million-dollar cases—10 million-dollar cases.”

Scaffold Law lawsuits are a risk whenever a government entity builds or repairs a structure – and just one suit can torpedo that year’s budget. Consider the recent case of Bissel v. Town of Amherst, covered in more detail here, in which a worker performing an estimate on town property fell from a ladder and was severely injured. Despite having no supervisory control over the work, the town was held fully liable under the Scaffold Law to the tune of 23.4 million. Unfortunately for the taxpayers, the town only had $10 million of insurance coverage – a sum previously thought to be more than adequate.

In fact, the highest verdict in New York this year was a Scaffold Law suit against Uniondale Union Free School District – an astronomical $15 million for a worker who was injured when a falling air duct collapsed his scissor lift. For reference, that’s more than the district’s entire annual budget for transportation, interscholastic athletics, guidance, library, and co-curricular activities combined. Yes, the taxpayers will feel that hit – but the students will likely feel it even more.

Municipal budgets across the state are in dire straits. A recent report by State Comptroller DiNapoli revealed that, in fact, many may be on brink of insolvency. Almost 300 local governments ended 2010, 2011, or both  in a deficit. Worse, 27 municipalities had already fully drained, or even exceeded their reserve funds as of August 2012. Meanwhile, litigation against municipalities is costing New York taxpayers a billion dollars every year.

But don’t worry, the tax cap will keep taxpayers from having to dig deeper into their pockets, right?

Wrong. A little-publicized clause in the tax cap legislation allows local governments to raise taxes to cover legal judgments – for example, to pay for a $23 million dollar Scaffold Law judgment. And extra costs on local governments may manifest in another, equally troubling way; cuts to vital services such as police, fire, and emergency response.

Governor Cuomo has repeatedly voiced his commitment to mandate relief, creating a task force and council to address the problem – but no relief has yet materialized. Local government officials, business owners, taxpayer groups, local chambers of commerce, builders, developers, and rational New Yorkers across the state have called on lawmakers to reform the Scaffold Law to bring budgetary relief and stimulate job creation. Many, such as senator James Seward (R, Oneonta) have answered the call. In fact, legislation to reform the Scaffold Law enjoys bipartisan support in both houses of the legislature.

With legislative session less than two months away, it’s time for lawmakers to get serious about controlling spiraling costs on our local governments. Step one? Reform the Scaffold Law.

 

To find out more about the effort to reform the Scaffold Law, visit www.scaffoldlaw.org

New York City’s Litigation Counsel Speaks at the American Tort Reform Association Conference

By: Tom Stebbins

On Wednesday, Lawrence S. Kahn, the Chief Litigating Assistant of the New York City Law Department and a member of the Executive staff of the City’s Corporation Counsel, spoke to the American Tort Reform Association (ATRA) at their annual legislative conference in New Orleans, Louisiana.  Mr. Kahn participated in a panel discussion entitled “Limiting Municipal Tort Liability” along with current San Diego City Attorney Jan Goldsmith.

Mr. Kahn’s presentation included some startling figures and anecdotes about the cases the New York City faces each year.  According to Kahn, claims against NYC have increased 2,600% since 1977, far outpacing inflation.  He highlighted slip and fall cases as a particular area of concern for the city.  Fortunately, the City Council helped relieve that burden by making sidewalk snow removal and the repair of sidewalk defects the responsibility of the property owners, not the city.  With hundreds of millions in claims every year and nearly 13,000 miles of sidewalks, this was a positive development in controlling the costs of lawsuits on the city.

Of course the City still faces a staggering amount of slip and fall cases each year.  And based on one story from Mr. Kahn, positive legislative efforts by the City Council cannot always protect taxpayers from the rapacious trial bar.  Soon after the City Council passed legislation requiring that the City have prior notice of a sidewalk deficiency, the plaintiff’s bar set up the “Big Apple Sidewalk Protection Committee” and served the city with 700,000 alleged violations across the city – potentially paving the way for up to 700,000 lawsuits.

In addition to the legislative support the city has received from the City Council, Mr. Kahn highlighted joint and several liability reform as a potential statewide legislative reform that could help relieve NYC from the burden of over $500 million in annual tort costs.

We at the Lawsuit Reform Alliance of New York applaud Mr. Kahn for his diligence and service to the people of New York City and thank the American Tort Reform Association for inviting him to speak on the important issue of municipal liability.

The Buffalo News: Frivolous Lawsuits No Laughing Matter

Today, The Buffalo News shared a letter written by LRANY Executive Director, Tom Stebbins, titled: Frivolous Lawsuits No Laughing Matter.  This letter explains the impact of a case which was recently decided against the town of Amherst, its associated municipalities and a home owner that made an exception for the inherent risk sport of rollerblading.  In New York, municipalities are far too often sued because of their deep pockets, and thanks to a New York law that can force them to pay 100 percent of a judgment even if they are only 1 percent responsible.

An excerpt:

“It is becoming clear that our legal system has lost its way. Consider the recent case of Custodi v. Amherst; in this case, which was recently decided by the highest court in the state, a roller blader injured herself after she caught her skate on the lip between a driveway and the street and fell. She promptly sued the homeowners, the Town of Amherst, the Highway Department, Erie County, the Village of Williamsville and the Department of Public Works for her injuries.

The Supreme Court of New York initially rejected her claim, agreeing with the defendants that roller blading is an inherently risky activity and that roller bladers knowingly accept this risk. Sadly, the Court of Appeals overturned that decision, holding the Town of Amherst and the private homeowners liable for her injuries.”

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