Legal Concepts

Construction Accidents, Unions, and Their Lawyers

2008-10-29T12:45:00.001-04:00

Injured construction workers, unfortunately often use a lawyer recommended by their union bosses. This is not a good idea.

Many accidents happen on construction sites because a construction site is a dangerous place. Just because accidents are common, however, does not mean that an injured construction worker is left without a legal remedy.

There is a set of law in New York that specifically covers construction workers who are injured on the job. That law is called the “Labor Law.” A better name for this would probably be “Construction Accident Law,” but the “Labor Law” is the name by which we refer to all of the laws pertaining to accidents to the construction workers o construction sites. It covers ALL such workers in what are knows as “the trades.” Plumbers, operating engineers, electricians, steam fitters, carpenters, laborers, masons, sheer rockers, painters, window washers, tapers (you name it!), are covered by this law.

These laws provide a legal remedy (in addition to Worker’s Compensation) for any worker injured on a construction site whenever a “violation” occurs. Violations of this law are so common, there is almost always a case whenever a construction worker is injured on an accident site.

Very often, an injured construction worker is steered by his union representative (usually the “shop steward”) to a lawyer who will handle the case. Be very careful of this arrangement! Such lawyers are often referred with “kick back” arrangements that are not in the best interest of the client. Why would anyone want a lawyer that is in cahoots with the union? After all, the workers must sue the General Contractor, the owner of the building, and often the sub-contractors. Will a union lawyer have a conflict of interest? Will he work for the injured victim? Why take the chance?

Typically, the sections of the Labor Law that apply to Construction accidents are Section 240, Section 241(6), and Section 200. Each of these sections permits an injured construction worker of any trade to recover an award against the owner and/or General Contractor.

Section 240 is the law that applies whenever a worker falls from an elevation or any significant height and is injured in that fall. These are the easiest and best cases to win since the owner and General Contractor are both strictly liable when this occurs. This section covers falls from ladders, fall from scaffolds, falls from trenches and other types of “distance” falls.

Section 241(6) covers violations of the New York State Industrial Code. Cases where workers trip and fall on obstructions (or debris), insufficient lighting, unlicensed equipment operators, falling objects, and other types of cases allow a recovery of money against the owner and General Contractor.

Note: The owner and General Contractor are always the target of such claims since they are responsible for overall safety at the construction site.

Finally, Section 200 covers all other types of claims for injuries where general negligence has occurred. This is a “catch all” provision. All of these laws are designed to help construction workers gain a large recovery for their serious injuries. Many times, injured construction workers cannot return to work.

It is important to remember that ALL OF THESE LABOR LAW CASES ARE IN ADDITION TO WORKER’S COMPENSATION CASES!

NEVER use a lawyer referred to you by your union. Understand that such lawyers typically are connected financially to these people who refer them. Always use a Board certified civil trial lawyer if you have a serious case. Check out our website to see a small sample of some of the multi-million dollar cases that our firm, Buttafuoco & Associates, has recovered for our clients. Call 1-800-NOW-HURT for a free consultation and to speak to one of our lawyers today!

Exposing the Dangers of Hospital Runners

2008-09-11T14:25:00.001-04:00

There is a pervasive problem that occurs with alarming frequency in the hospitals of this great nation. No, I am not talking about medical malpractice, even though that does occur at an alarming rate, according to a recent Harvard University study. I am talking about the problem of "hospital runners." These despicable individuals are paid cash bribes to perform the illegal solicitation of personal injury victims sitting in their hospital rooms. Accident victims have often become targets of fraud and poor legal advice. Disreputable, non qualified "ambulance chasers" (sleazy attorneys) are paying these "runners" cash to invade hospital rooms uninvited to try to obtain a signature on a lawyers' retainer for legal services in starting a lawsuit for the victim's personal injuries. The seriously injured are targeted as "sitting ducks" since they are immobilized and often sedated by medication in a hospital room. The fees and expenses are sometimes outrageous and the inflated promises made are never kept. NEVER HIRE AN ATTORNEY WHO APPROACHES YOU WITHOUT BEING INVITED THROUGH THE SOLICITATION OF A "RUNNER!" A "runner" is any non lawyer personnel or his agent (paid in cash illegally) for the sole and express purpose of direct solicitation of injury victims in hospitals. Often they go by the thinly disguised term of "investigator." Sometimes, unfortunately, they are the hospital employees themselves! This is an illegal and unethical practice. It is prohibited by law because it is damaging to clients' rights as clients rarely get decent representation this way and certainly are dealing with unethical persons from the start. They should not be surprised when their case is ruined and their valuable rights are lost. I have seen many horror stories.

This practice is illegal unethical and causes immediate disbarment to the attorney, if discovered. These are the "ambulance chasers" everyone hates and which give honest professional trial lawyers a bad name. These runners, of course, are soliciting people at their lowest moment when they are in their hospital beds, often under heavy medication, unable to think clearly or clouded by distress and grief. This is a high pressure tactic utilized to attract vulnerable accident victims as clients without attempting to build a solid practice based on reputation and consistent results. Making these victims legally obligated while in their hospital beds to these unethical lawyers is a sad commentary on the American legal system. Often what is being implicated by thinly veiled reference is that the injured victim might not receive the proper medical treatment if they do not sign these papers NOW.

This entire practice is forbidden by law. WHY? This never results in good representation. These are usually upstart lawyers, as no reputable firm would ever engage in this sort of practice. It is perfectly appropriate to be brought to a client in a hospital by a friend, relative or pastor (or someone of strong reputation that you trust) to help provide needed counsel in a time of need. That is not what I am speaking about. Our law firm quite often visits seriously injured clients in their hospital beds through the invitation of a concerned friend or pastor. That is very different. A "runner" is not concerned for anything but his bribe. The "ambulance chaser" he works for is concerned for nothing but his fee. Be careful who you sign papers for in a hospital.

This problem has cost our firm thousands of hours in hard work, scholarly research, teaching time, years of experience and countless dollars in advertising costs to get this message across. It is frustrating to have this process circumvented by dishonest people and to see our clients get hurt legally by these evil people. The sad reality is that any lawyer--no matter how inept--can settle a case for ONE-THIRD of its value. This happens all the time. There are countless horror stories where victims had their cases settled for a fraction of what they deserved. I personally was involved in a case where the client's prior lawyer demanded he settle for $600,000 "or else." Thankfully they did not and they changed lawyers to our firm. They came to our office where the case was properly handled and tried to verdict. They received $4.6 million dollars for the same case that the prior lawyer was willing to practically "give away." This is all too common.

The governing authorities do not police this activity adequately so this flagrant abuse of direct client solicitation continues to this day. If you are a pastor or a loved one of someone injured, lying in a hospital bed, do not allow the victim to speak to these crooks or their representatives. Anyone who engages in these practices cannot help your loved one or parishioner brother/sister. This is an awful problem that deserves to be exposed.

Slip/Trip and Fall Cases

2008-05-16T12:31:00.003-04:00

Slip and fall cases are sometimes ridiculed as the most ridiculous and illegitimate of all the cases brought in a legal system that is supposedly overflowing with cases that lack merit. It is somehow believed by some cynics that everyone who falls is always responsible for their own "slip and fall" and that it is somehow inherently wrong to bring a lawsuit for an accident which "must have been caused by one's own clumsiness." This prejudice pervades a large part of our culture where people are always expected to look where they are going. It is not, however, always that simple.
Only the most ignorant and closed minded people can fail to visualize at least some cases where the slip and fall and resulting injury to the victim is caused by the negligence of another - in these cases its the one who controls or maintains the property. In addition, many slip and fall injuries occur to the elderly or to those otherwise incapacitated by some type of physical or mental handicap that prevents them from being so agile as to always land on their feet like a cat when tripping, slipping, or stumbling on some hazard.
The law is clear. A person lawfully present on the land is entitled to a safe walking passageway, free of defects, debris or other tripping or slipping hazards. These cases are straightforward, but are not always easy to prove. For example, take the classic example of a banana peel. While a banana peel on the floor is potentially dangerous o pedestrians, it does not automatically give rise to liability on the property owner or controller and is not automatically a valid claim. The issue is one of negligence - Was the controller of the property negligent in allowing that condition to exist or did he create the condition himself? Where did the condition come from and how long was it there before the victim fell because of it? These cases often turn on such issues.
For a property owner to be liable for such a fall, he/she must (1) have notice of the defect, (2) have a reasonable opportunity to correct the defect, and (3) he/she failed to have done so, thereby causing the victim's fall. It is difficult to prove that a landowner had actual knowledge of a defective condition. The usual exception to this is if the defect was caused by the landowner himself, or by someone that works for him. If, for example, the defect is a poorly constructed sidewalk with a large raised edge or a gap, then such notice is sufficiently proven since the property owner or the controller of that property had to have known of the problem - they created it!
In debris cases (garbage, our banana peel example, other "temporary hazards") the way to prove that the landowner had notice is not that he/she had actual knowledge, but rather the law permits negligence to be proven based on "constructive" notice. Constructive notice exists and can be proven if it can be shown that the defective condition existed in an obvious place for such a period of time that the controller of the property simply MUST have noticed it (or should have noticed it!) if they would have exercised reasonable care. In other words, the slip/trip and fall case can be won by simply proving the defect and the length of time it existed in a sufficiently noticeable location. If a jar of olive oil is spilled onto a supermarket floor and it can be shown (through witnesses, surveillance tapes) that it existed on the floor and was not cleaned up for a sufficient amount of time, long enough to create a hazard and cause the victim to be injured, then the fall victim will win the case. How long does it take to get a "clean up in aisle 7?"
Another type of slip/trip and fall case is based on a recurring condition which will automatically establish notice each time it occurs. A typical example of this would be a leaky roof resulting in a wet floor each time it rains. Since the condition is recurring (the puddle will inevitably form each time it rains) the property owner/controller is "on notice" that the floor will become wet and create the usual slippery puddle. The victim does not need to prove that the owner/controller saw or should have seen the actual puddle or wet area on which the victim fell. It is enough to establish that the owner/controller knew that the roof regularly leaked in that location.
Lawyers must be creative in overcoming these obstacles. Lawyers in slip/trip and fall cases must also overcome the prejudice of the public that tends to automatically blame the victim, and chalk it up to another "klutz" being responsible for their own actions. In reality, many times a person is seriously injured a slip/trip and fall. Falls, especially in older persons, can result in nasty injuries such as fractures, hip replacements, and serious head injuries. We have even seen slip/trip and fall cases in where the victim died as a result of his injuries.
While some slip/trip and fall cases are insignificant, our firm has settled such cases for many hundreds of thousands of dollars, and more. Also, the often ignored aspect of slip/trip and fall cases is there is usually a significant amount of insurance coverage available to pay serious claims (unlike some care accidents where they coverage is often limited!) If you or someone you know has been injured in a slip/trip and fall, please call our firm today at 1-800-NOW-HURT so that we can help you as we've helped thousands of other fall victims.

Think Tort Reform is a Good Idea? Think again!

2008-04-28T16:03:00.003-04:00

This article was written by the managing attorney of my firm in response to an article calling for tort reform printed in The Village Times Herald in March 2005. Though this article is already a few years old, it's still very relevant as those in favor of tort reform (namely physicians and insurance companies) are, as recently as last month, still issuing articles pretending that it is a good idea. I bet the doctors who almost killed actor Dennis Quaid's twins (when they were accidentally given an adult version of particular drug called Heparin at 1,000 times the dosage that was required) think tort reform is a good idea too...

“Round Two of the Bugle Call For Tort Reform” – by Mark. T Freeley

Okay, as one of those “trial lawyers” (which seems to be a dirty word these days), I will jump in the ring again for round two of your bugle call for tort reform. You begin (after apologizing for printing fictional stories” by claiming that the need for tort reform is “undisputable except perhaps by trial lawyers.” I beg to differ. What about our neighbors, friends or family members who sustain serious injuries due to the negligence of others? Does the person who can no longer work to support their family, or the family that has lost a loved one feel “tort reform” (which is simply code words for “loss of your right to seek compensation”) is needed? Should these people just “take it on the chin” so insurance companies and big businesses make even greater profits? Isn’t it in society’s best interest to reasonably compensate people (who are injured at the fault of another) for their loss of enjoyment of life, loss of wages and medical expenses rather than cater to claims by insurance companies that these “frivolous” cases are causing them to lose money? Every time we turn on the radio or TV we hear insurance company ads pleading to insure us. Surely there must be a profit squeezed in somewhere!

You then focus on the $137 million that was awarded (by a jury, not by “trial lawyers” and which will undoubtedly be substantially reduced on appeal* ) for the two year old ventilator-dependent quadriplegic girl paralyzed by a drunken driver who was over-served (16 beers) and whose parents both had to quit their jobs to take care of her. I believe you described these circumstances as an “alteration of that child’s life.” I’m glad the jury determined it was a bit more than an “alteration” and I’m sure they didn’t consider the award a “free lunch.” As for the increase in insurance premiums, punitive damages (which are virtually non-existent in tort litigation) do nothing to raise insurance rates because in most states (New York included) they are not covered by insurance policies and they too are typically greatly reduced on appeal.

On the issue of contingency fees, which you claim trial lawyers “do not share,” you seem to be mixing personal injury claims with class action suits, two entirely different animals. The standard contingency fee in personal injury cases in New York is one-third of the net recovery after expenses. It is even less in medical malpractice actions. Therefore the injured person always gets the lion’s share of every recovery. Going head to head with insurance companies and their lawyers is time consuming, expensive, and the overhead is tremendous. Contingency fees allow people (regardless of income level) access to lawyers and the courts. Imagine if an injured person already unable to work was compelled to pay an attorney an hourly fee up front to take on the insurance companies. How many accident victims would be in a position to do so? They also assure that attorneys accept only meritorious claims because the attorney will only be compensated if he or she is successful. The attorney that brings “frivolous” cases will soon find themselves out of business.

Sure its easy to attack trial lawyers and wave the “tort reform” flag, but the real victims of these attacks are really not us trial lawyers. The true victims will be those of us who may become injured in the future only to find our rights to a full and fair recovery vanished in the name of “tort reform.” I can only hope that when the public realizes this, it will not be too late.

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*Later the $137 million dollar verdict was overturned, prompting another letter to the editor by Mr. Freeley, dated August 16,2006:

As you may recall early last year the bugle call for tort reform was sounded by your paper and was responded to by many including myself, a confessed “trial lawyer,” in an attempt to set the record straight. Specifically you found the $137 million dollar verdict for the two year old ventilator-dependent quadriplegic girl paralyzed by a drunken driver who was over served (16 beers) at Giants Stadium quite perturbing. Well, this month the Appeals Court overturned the verdict and ordered a new trial to take place. As it stands now this girl has collected the whopping sum of $200,000 from the insurance company that insured the drunk driver that struck her, even though she will require $42 million worth of care for the rest of her life. Is it really that disturbing when jurors hold entities accountable for their actions? Is it too much to ask to refrain from serving someone 16 beers? If businesses and their insurance companies are let off the hook because of a fear of increased premiums, doesn’t that just pass the buck to us taxpayers in the end anyway? If there is no insurance to cover the medical costs for this girl, they will in all likelihood be paid by governmental social services programs, which will in turn raise everyone’s taxes. Since insurance companies are in the business of managing risks, shouldn’t they (on behalf of their culpable insureds) pay such costs instead of already strained social programs? I don’t know, maybe we shouldn’t hold anyone accountable anymore and let the insurance companies make even more profit. Its almost unbelievable, but the propaganda sponsored by insurance companies and big businesses has many citizens feeling almost embarrassed to stand up and do the right thing for fear of premium increase retribution. Wow, are they good or what?

$600,000 Structured Settlement (ultimately worth $1.3 million) for Boy Attacked by Dogs

2008-03-04T15:18:00.002-05:00

Many of the cases that our firm has handled resulted in record breaking numbers in New York State, including the case we handled where we won for our client over $14 million dollars, which was the largest settlement in New York State History. Another one of our record settlements is the following dog bite case.

In a case that settled prior to jury selection, the lawyers at Buttafuoco and Associates were able to reach a significant settlement in the case of an 11 year old boy who was attacked by Rottweilers while playing with friends at a Queens, NY park. The dogs escaped from a nearby yard enclosed by a chain link fence and bit the boy repeatedly about the body. In an intense rescue effort, it took three grown men, including an off duty police officer, ten minutes to save the boy from the attacking dogs. After 9 days of hospitalization and treatment including stitches, tetanus shots, rabies shots, and psychological counseling, the boy remained traumatized and retains a large Z-shaped scar. One of the dogs was shot and killed by a police officer at the scene and the other was put to sleep by the ASPCA. The firm was prepared to call witnesses who lived near the defendant and could testify to the violent nature of the dogs. The case settled for a $600,000 structured settlement, ultimately worth $1.3 million. This is one of the largest reported dog bite cases in New York. If you or someone you know has been the victim of an animal attack, have them call us at 1-800-Now-Hurt for help so they can get the compensation they deserve!

A Must Read for All Those Who Have Had Jury Duty or May Be a Juror One Day!

2008-02-21T12:02:00.002-05:00

Awarding Future Damages in Jury Trials

By Daniel and Kristen Buttafuoco

In New York personal injury and death actions, damages for future losses (future medical bills and future lost wages) must be stated in future dollars. This means that the attorney for the accident victim (or the deceased’s family) must project these losses to the jury in terms of the cost they will be in the future. The reason for this is that all future damages in jury trials get reduced after the verdict by the trial judge who must get involved with complex calculations necessary to reduce the verdict to present day value. The injured plaintiff then gets the reduced amount, not what the jury gives!

This is tricky for plaintiffs. This law forces the plaintiffs attorney to ask the jury for what may seem to be an outrageous sum of money. Yet, it is NOT at all outrageous because these amounts will look very different once they are reduced by the judge after the verdict. The jury must follow the law and state the verdict in future dollars. If the jury does not take this into account and states the verdict in what they believe is reasonable for today’s economy, the plaintiff gets cheated because the amount will essentially be reduced twice (first by the jury, who took matters into their own hands, and second by the judge who must act under the assumption that the jury followed the law and did render a verdict in future dollars)!

Other means of resolving cases, such as settlements and payments are always in present dollars. If the defendant offers a sum of money to the plaintiff for damages caused and the plaintiff accepts that offer instead of proceeding further with the lawsuit, that amount is in present dollars. Jury verdicts, however, as previously stated, are in future dollars. This is because a jury verdict (in civil personal injury cases) is only for informational purposes. It is raw data that is used for a series of complex calculations after the trial is over. Juries should not think that plaintiffs will receive the amounts stated in the verdict. They do not. They receive a greatly reduced amount after those complex calculations are performed on the jury’s raw verdict amounts.

For this reason the jury must follow the law and, if they believe that the plaintiff will have future damages, award the amounts projected. The plaintiff’s attorney will often bring in an expert economist to testify what is necessary in future dollars. The jury should not be put off by these seemingly large numbers. These projections are very real and not inflated.

It is a matter of simple economics. For example, in 1958, the cost of a movie ticket was $0.58. Fast-forward 50 years to the present and a movie ticket is a whopping $10.00. That is over 17 times the amount that it was in the past! Now, $9.42 may not seem like a great deal of money to most people. But our clients are not worried about whether they are going to have enough money to go see a movie in the future, so let’s talk about things the injured plaintiffs will really need.

Assume the plaintiff was in a car accident and suffered neck or back injuries as a result of that accident. Now the plaintiff needs physical therapy. We’ll start with a very modest estimate, 18 visits per year. That’s an average of 1-2 physical therapy appointments per month. Physical therapy in 2008 costs an average of $100 per visit, for a total of $1800. Now increase these amounts by 5% per year (as per data provided by the U.S. Bureau of Labor Statistics) and 30 years from now the plaintiff will be paying $7,779 per year for physical therapy visits. If you add all those yearly numbers in between, by 2038 the plaintiff will have spent $127,370 on physical therapy visits alone!

But that’s not all…if the physical medicine and rehabilitation doctor prescribes trigger point injections (which they often do) once a week at $75 per session, with that same 5% increase, by the year 2038 the plaintiff will have spent $349,560 on that!

Now how about some medication? Muscle relaxers or pain killers? Let’s say in 2008 those things cost $50 per month. Medication costs, according to the U.S. Bureau, increase at an even faster rate of 6%. So by the year 2038, the plaintiff will have spent $50,881 on necessary medications.

Add these three basic categories together and already that is over half a million dollars in future medical costs! And that is not counting doctor visits, additional x-rays or MRI’s, possible surgeries, or lost wages because the plaintiff is unable to return to work!

Let’s say that taking all this into account, a jury gave a verdict of $1 million dollars. Does that mean that once everyone leaves the defendant’s insurance company hands the plaintiff a check for $1,000,000? Absolutely not! That $1,000,000 is reduced by the court, using those complex calculations we discussed earlier and the plaintiff ultimately will receive that value in today’s present dollars, which hopefully will cover their medical expenses.

If you are ever chosen for jury duty in the future, please keep this in mind. Being a juror, while sometimes inconvenient, is a great honor and responsibility. It is one of the institutions that makes this country great. We are telling you this information because one day you might be chosen to be a juror, in which case you can help us do our job. We take our job very seriously. Our job is to help accident victims rebuild their lives.

Harvard Study Casts Doubt on Claims that the Legal System is Plagued with Frivolous Med Mal Lawsuits

2008-02-20T14:58:00.004-05:00

Very often we hear claims that the legal/litigation system is full of frivolous lawsuits, especially frivolous medical malpractice lawsuits, that are brought by money hungry uninjured people or people whose injuries were not the result of malpractice. But this is not at all the case according to a recent study done by the Harvard School of Public Health.

The results, in fact, are the opposite of what the tort "deformers" claim, based on results from 1,452 randomly selected, closed medical malpractice files. The reviewers found that 97 percent had indeed suffered harm. In about one-third of these patients, the damage wasn't clearly attributable to negligent medical treatment, a wrong prescription, or a misdiagnosis. Most of those claims were correctly denied compensation, the team reports.

According to the study, 73 percent of plaintiffs whose claims had merit received compensation.

The study also found that just six people had received compensation that were uninjured and 145 had injuries that had not been convincingly linked to medical error. On the other hand, 236 plaintiffs who did suffer an injury from medical error received no compensation. The authors wrote:

One in six claims involved errors and received no payment. The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury. Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

Eighty percent of the claims involved injuries deemed to have caused significant or major disability or death. In only 3% of the claims, no adverse outcomes from medical care were evident.

Since the majority of payments from insurance companies went to people who had been harmed by medical errors and not to people with baseless claims, the authors said that the "moves to combat frivolous litigation will have a limited effect on total costs."

Taking direct aim at politicians and business lobbyists, the authors wrote that:

"The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired."

For more information on this study, you can check out Harvard's School of Public Health and view their article on the following link: http://www.hsph.harvard.edu/news/press-releases/2006-releases/press05102006.html

If you or a loved one has been injured due to medical malpractice or negligence by a health care professional, you may be entitled to compensation. Call our law offices at 1-800-Now-Hurt and visit our website at www.1800Nowhurt.com for more information. We help medical malpractice victims rebuild their lives.

Is it morally wrong to sue?

2008-02-11T14:27:00.001-05:00

Many of our clients are devoutly religious people, since a good part of our practice is referred to us from the church. It is not unusual for Pastors, Priests, Deacons or other church leaders to recommend our firm since we are so actively involved in ministry to the poor and other church related missions.

As a result we are often asked this question: “Is it morally wrong for a Christian to bring a lawsuit for personal injuries?” Fortunately our firm is well equipped to answer this question. Dan Buttafuoco is an active elder in his church and possesses a Master’s Degree in Theology from Alliance Theological Seminary. He is also an amateur Bible scholar and has taught graduate students at both seminary and law school.

The Bible (neither the Christian nor the Jewish version) and the Judeo-Christian religions do not prohibit lawsuits. Scripture prohibits only unjust lawsuits. The Bible, the teachings of Moses, and the teachings of Jesus are very concerned with the concept of justice. Continually we are told in scripture to “defend the poor, the weak and the fatherless” in court. In fact, Exodus 22 sets forth legal guidelines for God’s people to recover compensation in personal injury accidents when these accidents are caused by the fault of another, either through negligence or other wrongdoing. It is a simple but profound concept. If you break it, you must fix it. If you hurt someone, you must pay for it.

These very same moral and just principles are embodied in our law today, especially in America with its strong Judeo-Christian founding. While lawsuits, like anything else, can be abused by dishonest people, they need not be. Furthermore, insurance companies and corporations are often just as immoral and corrupt in denying valid claims than any dishonest claimant. Because they have money for “PR” this sad fact is often not publicized, but any lawyer and judge knows that insurance companies and defendants often go to great lengths, sometimes unfairly, to deny valid claims.

In just about every jury case brought in America there is liability insurance that will pay the verdict. This is true even if the named defendant is a private individual and may in fact be some “sweet little old lady.” Jurors and the public are never told that the ultimate payment for injuries in these cases will be made by an insurance company. In court it is illegal to tell the jury that insurance money is involved. Consequently, jurors are never aware of the truth that the money being sought in the verdict will be paid by “XYZ Insurance Company.”

Insurance companies exist for the sole purpose of paying claims. Yet they hide behind the fiction of the appearance that in court the person being sued must pay the plaintiff (the person bringing the lawsuit) out of their own pocket. Simple economics will tell you that the average person has insufficient money to pay damages on any significant personal injury claim. Therefore always assume that insurance money is lurking behind any claim made in court.

It is certainly not immoral to accept money for injuries from insurance companies since they exist for this very purpose.

Legal Caps on Pain are Wrong

2008-01-21T10:41:00.000-05:00

Caps on pain and suffering and the loss of quality of life of victims of medical malpractice are not a legitimate solution to recent insurance-rate increases. Caps only unfairly discriminate against those patients who have been injured the most seriously, or those too young or old to show an economic loss from their injuries. In California, which has such a cap, victims of medical malpractice have had difficulty in retaining attorneys to take their cases, because typically malpractice cases are difficult, time-consuming and expensive to litigate. In New York attorneys in malpractice actions are forced to accept reduced fees because of legislation that has been in effect for many years. By placing such minimal caps on a victim's potential compensation for his or her pain and suffering and loss of enjoyment of life, in addition to the already imposed legal fee cap, the courthouse doors will clearly close for good for many legitimate victims of medical malpractice. This is exactly what the malpractice insurance companies would like to see.

Solving Malpractice Costs

2008-01-18T13:05:00.000-05:00

This article is on display in my office. It appeared in Newsday on July 24, 2007. It is entitled "Don't Blame the Victims: Other ways to solve malpractice costs."

Costly medical malpractice insurance is a real problem, particularly on Long Island. Unfortunately the solution most often touted - limits on jury awards - is bogus. The debate over the rise in the cost of premiums has to get beyond demonizing trial lawyers if solutions are to be found.

Nobody likes being sued. And trial lawyers are a tantalizing target for retribution. But its the people they represent - those injured due to medical negligence painstakingly proved in a court of law - who would be the victims of dollar limits on damages for pain and suffering.

There's no magic bullet to miraculously control the cost of malpractice insurance. So debilitated patients shouldn't be singled out to bear the brunt of reform, when there are so many other players in this drama with deeper pockets.

The problem was laid out last week by Newsday reporter Ridgely Ochs. The cost of medical malpractice insurance is on the rise in New York after years of relative stability, and the highest rates in the state are here on Long Island .

With HMOs and insurers playing hardball to keep a lid on costs, doctors are getting squeezed. Some are altering their practices: ob/gyns, for instance, opting to stop delivering babies. That's worrisome and, if unaddressed, could become a problem for patients. But the assertion that all this is being driven by rapacious lawyers is unconvincing.

The size of jury awards has gone up in recent years. But according to the Center for Justice and Democracy, a consumer group that tracks such things, payouts from verdicts and settlements have risen no faster than the rate of inflation in medical costs. And while some doctors have left or altered their practices, many have set up shop on Long Island , driving an overall increase in the number of obstetricians and surgeons, including neurosurgeons, in the area.

Still the cost of insurance is a problem, and there are approaches to slowing the increases that merit consideration. A specialized medical court without juries, for instance, or a no-fault system for claims involving neurologically impaired infants. A crack down targeting the licenses of incompetent or chronically negligent doctors would help. So would still penalties for lawyers who filed frivolous suits.

There are bound to be other, more creative ideas. Unfortunately, they may never be explored if the debate remains fixated on attacking damages awarded to patients for their pain and suffering as the root of all evil.

Protection of Construction Workers and Workers in the Trades under the NY state "Safe Place to Work Laws"

2008-01-17T12:41:00.000-05:00

In NY state, construction workers in the “trades” (carpenters, plumbers, electricians, steel workers, steamfitters, laborers, masons, painters, and every other trade) are protected under the “safe place to work” laws. These laws are known in the legal arena as the “labor law” and there are different sections covering varying types of work related activities and injury causing situations. Labor Law cases are very favorable to construction workers. These laws hold the building/structure owner as well as the general contractor liable for certain injuries suffered by workers in the trades. What this really means is that in addition to having a worker’s compensation claim against their employer, the injured worker may also have the right to bring a lawsuit against the owner of the building/structure and against the general contractor overseeing the job. Thus, the injured construction worker has two claims.

In order for the safe place to work laws to apply and provide protection to the injured worker, certain criteria must be met. First, the work being performed by the injured worker must be the type that is covered under the law. All trade work is typically covered if its being done for construction, erection, repairing, demolition, or altering of a building or structure. The injury does not have to occur on a construction site or project. As long as the work being performed is trade type work there is typically protection under these laws.

So, for example, if the trade worker’s company was hired to by a building owner to simply paint, replace electrical wiring, or install an alarm system, or to install a new boiler, these types of activities will normally be covered under these laws.

In addition, the safe place to work laws concentrate on providing workers in the trades with protection from elevation-related accidents, such as falls from a height (ladders, scaffolds, platforms, etc.). When a worker falls from a height and is injured because a ladder/scaffold is inadequate, unsecured, unstable, or defective these laws mandate “absolute liability” upon the owner and general contractor. This is true regardless of who owned the ladder or scaffold. The owner and general contractor are required to ensure that workers working at a height are provided with proper safety devices. So, if a ladder or scaffold collapses, breaks, tips, slides, etc., and causes injury to the worker, both the owner and general contractor are liable. The same is true if materials, tools, or supplies fall from a height striking a worker below. There is even a special section of the law providing heightened protection for window washers who are injured on the job due to height/fall related injuries.

The safe place to work laws also provide protection for injuries caused by slipping/tripping on a work site, injuries caused by lack of eye protection, injuries caused by electrocution, injuries caused by unguarded power equipment and many other types of trade related activities.

Of course with all laws there are certain exceptions and exemptions. It is crucial to hire a lawyer who is fully familiar with these laws and has had repeated success with lawsuits against owners and general contractors. At Buttafuoco & Associates, Daniel P. Buttafuoco and Mark T. Freeley have a proven track record of success in handling labor law cases and in taking on the owners, general contractors, their insurance companies, and their attorneys. Dan and Mark take a personal interest in every injured trade worker and prepare an individual case strategy for every client. The injured worker does not become a case number, as is the common practice in other firms, but instead becomes a case partner. We help injured construction workers rebuild their lives.

Frivolous Lawsuits

2008-01-11T14:15:00.000-05:00

Everywhere I go, whether it be a dinner party, nonprofit organization meetings, church or on the golf course, people always ask me why trial lawyers file frivolous medical malpractice lawsuits. "Don't insurance companies raise our rates when they have to pay for those suits?" they ask.

Here's my answer: Frivolous lawsuit claims are overblown. They're circulated by powerful corporate interests that want to escape accountability for the dangerous products they market to the public. Government agencies that track civil suits report declining numbers.

The real problem is the insurance company gouging physicians. Annual statements of the 15 largest companies handling malpractice insurance show that premium collections increased by 120 percent between 2000 and 2004, while claims rose by only 5.7 percent.

The rate of premium increase was 21 times greater than the rate of increase in claims payments during the same period. None of that has anything to do with lawsuits and everything to do with the insurance industry stuffing its pockets at the expense of the American public.

Voted Best Lawyer of Long Island 2008!

2008-01-09T12:34:00.000-05:00

Daniel Buttafuoco, of Buttafuoco & Associates, has just been voted the #1 lawyer on Long Island for 2008 by readers of The Long Island Press. This is the second year in a row Dan has won the honor and both he and his firm wish to thank all those who took the time to vote. Winning this honor shows that we are successfully doing our job and our clients are happy, which is of utmost importance to us. We will strive to continue our success and make the coming year even better. Thank you again!

Train Accidents - Falling through the gap

2007-04-12T10:14:00.000-04:00

Railroads, like anybody else, are responsible to maintain the safety of the public. Whether at stations or in rural areas, whether on station platforms or on the tracks, these accidents can be deadly. Sometimes people fall through the gap between the train car and the platform. We recently had a case settle for well over a million dollars when a poor commuter slid through a gap and landed on the ground below the station platform.

Special rules apply for those “working on the railroad”. These cases are called FELA cases and our office handles them.

We welcome you to call our offices anytime and we will help you through the process or at the very least lead you in the right direction.
Daniel P. Buttafuoco
1800NowHurt.com

Work Place Accidents

2007-01-08T10:41:00.000-05:00

Work place accidents occur everyday and in many instances you may have the right to seek compensation for your injuries in addition to Workers' Compensation benefits. Although you may not be able to bring a personal injury action against your employer, there may be other persons or entities responsible for your accident and we may be able to obtain a settlement from them on your behalf. You should call our office anytime you are injured at work as we will not only assist you in obtaining representation for your Workers' Compensation claim, we will carefully listen to and evaluate the facts surrounding your accident to see if a personal injury claim can be pursued as well. For instance, if you fall on a defective stairway or get injured by a defective elevator we may be able to bring a claim against the building owner and/or manager for your injuries. This would be in addition to your Workers' Compensation benefits. If you work in any of the trades ie: painters,carpenters,electricians,roofers,steamfitters, iron workers,alarm installers, you may be entitled to special protection under the New York State Labor Law which requires that owners and contractors assure that all trades are provided with adequate safety protection. Most workers are NOT provided with the required safety protection and we are able to successfully obtain large settlements from the insurance companies for the owner and general contractor. We have handled many of these cases with tremendous results as can be seen in our Verdicts and Settlements section on this site. However, each case is very fact specific so please call our office to discuss your accident so we can make a proper determination. Injuries sustained on any construction site or while performing repairs, alterations, installations and demolition are covered under the Labor Law, there is also a special section just for window washers so please call us to see if we can help you.

Daniel P. Buttafuoco
www.1800NowHurt.com

Case Brief: Labor Law

2006-12-20T13:32:00.000-05:00

I have had several inquires for examples of a Labor Law cases. Posted below is a Labor Law - Fall from Ladder case:

XVII/11-38 LABOR LAW - FALL FROM LADDER - SUMMARY JUDGMENT ON LIABILITY
FRACTURED PATELLA
SETTLEMENT: Scott and Jamie B. v. U.S. Tennis Association, Inc.; Turner Con & Lehrer; McGovem Bovis, Inc. 129112/95 Date of Settlement 3/16/99 New York Supreme
Pltf. Atty: Daniel P. Buttafuoco of Daniel P. Buttafuoco & Associates, Woodbury.

This Labor Law action settled during trial for $1,250,000, plus the waiver of a $67,000 Workers Compensation lien. On 10/20/95, Pltf., a 38- year-old union iron worker, fell from an unsecured ladder while working at the construction site of the U.S. Tennis Center in Flushing Meadows. Prior to trial, Pltf. was granted summary judgment pursuant to Labor Law § 240. There was no Third-party action against Pltf.'s employer.

Injuries: comminuted fracture of the patella with displacement of the bone fragments. Pltf. underwent excision of the patella and open reduction and internal fixation. Pltf.'s knee is disfigured. Pltf. did not return to work, and he claimed that he will require a future knee replacement. He was earning approximately $60,000 a year, plus benefits, at the time of the accident. Deft. claimed that Pltf. would not need a knee replacement, that he had good range of motion in the knee, and that he was able to return to work. Demonstrative evidence: model of the knee; photographs; diagram of the knee and surgeries.

Daniel P. Buttafuoco
www.1800NowHurt.com

Slip and Fall Injuries

2006-12-14T12:22:00.000-05:00

Have you or a friend/family member recently been a victim of a slip and fall accident? Just because you slip or trip and fall doesn’t mean you are a “klutz” and solely responsible for your injuries. It all depends upon what caused you to fall. Was there a defect on the floor (like a raised or cracked surface tile or sidewalk) or perhaps a pothole defect? Sometimes people fall because there is a “foreign substance” on the floor that is slippery (like oil, floor wax, water or ice, or even something that has broken in a supermarket). Our firm has handled many “fall” cases over the years - one client fell on an overwaxed dance floor, one on icy steps outside a diner, one elderly gentleman tripped over a broken, uneven sidewalk.

There are many conditions that are “unreasonably dangerous” that cause people to take serious falls that result in all types of injuries (occasionally, even in death!).

Falls are serious, especially in older people. It is not uncommon to have fractured hips and major surgeries resulting from a serious fall.

A property owner or business or homeowner must keep the floor and ground in “reasonably safe condition”. If not, then you can sue (slip and fall) provided they had some notice (or should have known) of the condition.

In these cases it is extremely important to 1) make an immediate report 2) take photos as soon as possible and 3) call us immediately if you or a loved one is seriously injured in a fall at 1-800-Now-Hurt. Time is important in these cases because conditions change rapidly.

Call 1-800-Now-Hurt to have Daniel P. Buttafuoco & Associates investigate your case as soon as possible.

Daniel P. Buttafuoco
www.1800NowHurt.com

Car Accident - Can I recover damages?

2006-12-05T13:22:00.000-05:00

Auto Accident

If someone is injured in a car accident, all medical bills and wages (to a limited amount) are typically paid by the No-fault insurance company up to $50,000. The accident victim merely needs to file a No-fault application within thirty (30) days of the accident. The No-fault insurance company is typically the insurance for the car the victim was seated in at the time of the accident.

In addition, an injured victim may also sue the negligent driver and owner of the car which caused the accident. Such a case may be worth a substantial amount of money. There is an important requirement here that is unique to automobile cases. The injured victim can only sue if he/she has sustained a “serious injury”. The law involving a “serious injury” is extremely complex. Generally, a fracture, even a minor one, qualifies. A soft tissue injury (“whiplash”) generally is not sufficiently “serious” unless the victim is out of work for ninety (90) days. There are many exceptions to this. Call us for free advice - 1-800-NOW HURT - if you have a question.

Daniel P. Buttafuoco
1800NowHurt.com

State found liable for hazard in unofficial beach path

2006-11-11T10:30:00.000-05:00

Officer paralyzed when ATV hits fence stake

By Natalie White Contributing writer
New York state recently agreed to pay $14.8 million to a police officer who was paralyzed while driving an ATV along an unofficial pathway behind Fire Island beach.
The case turned on the question of who should be held responsible - the owner of the land or the intruder - when a person is injured on a pathway that is not open to the public.
Judge James Lack found the state 100 percent liable for the accident, which prompted the state to settle the suit for $14.8 million.
The plaintiff's attorney, Daniel Buttafuoco, said he believes it is the largest settlement in state history for a single person in a personal injury case. Seven million of the settlement was paid in September and the rest will come in monthly installments.
The path was in Robert Moses State Park on the western end of Fire Island, off the southern shore of Long Island.
Short cut to agony
After finishing his shift in May 2002, police officer Scott Brumber decided to avoid the Memorial Day crowds by zipping his all-terrain vehicle down the short-cut path, known locally as the "Coast Guard cut."
The ATV snagged on a metal pipe that was sticking up from the sandy roadway, causing the vehicle to flip in the air and land on Brumber, crushing his spine. The accident left Brumber, who has a wife and three children, confined to a wheelchair.
The state contended that Brumber had no right to be driving on the path and that he was therefore responsible for his own injuries. Brumber's attorney countered that the state, which owns the area, was responsible for keeping the path clear of dangers even though it was not open to the public.
"Yes, it was not an official path, but the state was negligent in not closing it off," said Buttafuoco. "They just looked the other way."
The plaintiff's team used aerial photographs and live testimony to show that the short cut path had been in use for many years when the accident happened on May 27, 2002. Witnesses testified that several government agencies, particularly the Coast Guard, used the path on a regular basis.
Buttafuoco also called witnesses who testified that the stake was leftover from a snow fence that had been installed by the state several years prior to the accident but not maintained.
"Not only did they neglect the path, but they created the hazard," he said.
Buttafuoco emphasized that although the state knew the path was used by various agencies, it never bothered to post warning signs or notify the agencies of the potential hazards.
"They never told anyone not to use it. They never put up signs or tried to find a way to close it off," Buttafuoco said. "Basically they just kind of winked at it. What they should have done is make sure the path was safe and get all the crap out of there. If they had pulled this stake, this accident never would have happened."
He described the crash as a "freak accident."
"If you were walking you probably would have seen the stake and if you didn't you might have tripped on it," he said. "But on a four-wheel motorcycle you are never going to see the stake."
Buttafuoco said that he would normally prefer trying this case before a jury, but as the trial progressed he realized that the knowledge of the judge worked in his favor.
"Typically you would want a jury for this kind of case, but in the Court of Claims in New York there are no juries, only bench trials," Buttafuoco said. "In the end I think there were a lot of subtleties that typically a jury would not appreciate."
Plaintiffs' attorneys: Daniel P. Buttafuoco and James S. McCarthy of Daniel P. Buttafuoco & Associates in Flushing, N.Y.; Thomas Spreer of the Law Offices of Thomas Spreer in Babylon, N.Y.
Defense attorney: John Shields of the Office of New York State Attorney General Eliot Spitzer in New York.
The case: Brumber v. State of New York; September 2006; New York Court of Claims; Judge James J. Lack.

Daniel P. Buttafuoco
Daniel P. Buttafuoco & Associates
www.1800NowHurt.com

Top 10 Things Most People Do Not Know

2006-11-02T13:18:00.000-05:00

1 The McDonald's "coffee" case is a just result when you know all the facts. Click here to read about the true merits of the case.
2 Most good Personal Injury lawyers are honest people who care about their clients.
3 You would never trade places with someone who has $1 million settlement.
4 Juries usually get it right.
5 Judges watch over juries to make sure they get it right.
6 Appellate judges watch over judges that watch over juries.
7 Lawsuit filings are way down over the last five 5 Years (statistics to follow).
8 Smart lawyers don't typically bring bad cases because they know they won't get paid (i.e. the contingency fee system works).
9 You need a “serious injury” to successfully pursue a car accident case even if you were hit by a drunk driver.
10 The wrongful death of an innocent child in New York is worth no more than approximately $100,000, without proof of prolonged, conscious pain and suffering..

Extremely Important info -> Your Auto Insurance!

2006-10-20T00:34:00.000-04:00

SUPPLEMENTARY UNINSURED/UNDERINSURED
MOTORISTS COVERAGE

Every auto policy with Liability Coverage includes protection at minimum bodily injury limits of $25,000 per person/$50,000 per accident for you and your passengers in the event of bodily injury sustained in an accident in the State of New York for which an unidentified or uninsured driver (i.e., stolen car, hit and run, policy cancelled) is legally liable. As additional protection, Supplementary Uninsured/Underinsured Motorists (SUM) Coverage is available. It provides protection for both in- state and out-of-state accidents.

SUM coverage may be carried with limits up to the bodily injury limits you have chosen. Below is a list of the limits that are typically available.

SUM Coverage Limits
Per Person/Per Accident
$ 25,000/$ 50,000- Not recommended.
$ 50,000/$100,000- Not recommended.
$100,000/$300,000- The least you should have.
$250,000/$500,000- Strongly recommended.

SUM coverage is described below.

Basics of SUM coverage

1. A person should purchase SUM coverage in order to protect against the possibility of an accident involving another motor vehicle whose owner or operator was at fault and who:

a. May have no insurance whatsoever; or
b. Even if insured, is only insured at relatively low liability limits, in comparison to your own liability limits for bodily injury.

2. By purchasing SUM coverage, you and your family can:

a. Be protected for bodily injury to themselves, up to the limit of the coverage purchased; and
b. Receive from your own insurer payment for bodily injury sustained due to the fault of the other motor vehicle's owner or operator.

3. Your SUM coverage protects you and your family even when you are not in your car. It is a layer of protection even when you are in someone else's car, riding your bicycle or crossing the street. SUM is in fact one of the most essential coverages to obtain for you and your family.

Daniel P. Buttafuoco
www.1800NowHurt.com