Articles Posted in Westchester County

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In fall of 1989, an employee of the water department of the Town of Hempstead borrowed a city pick-up truck to drive it home. He had been allowed on several prior occasions to borrow the city truck to get home. He believed that it was OK for him to borrow it on this date to get home. On his way home, he was involved in an auto accident that resulted in serious personal injury. Following the truck accident, the injured party filed a lawsuit against the Water Department and the Town of Hempstead.

The Town of Hempstead countered that they do not feel that they should be held liable since the employee was not at work or engaged in any city business at the time of the accident. Further, he had not requested permission to borrow the truck on this date. The other times that he had been permitted to borrow the truck; he had asked for and received permission to do so. This was not the case on the night of this incident. In fact, the Staten Island employee’s job for the city did not require the use of a vehicle at all. The employee even testified that he had received specific instructions prior to the date of the accident not to take a truck home. He advised in testimony on several different occasions that no one had given him permission to use the truck on that night. He advised that he took it anyway because he needed to get home. The evidence that was presented in reference to the employee being told specifically that he could not take the truck home was not argued by either side. However, there were no prior violations by this employee or any other on file prior to the accident of the “no personal use” policy that had been implemented in the fall of 1989.

The Justices, however, ruled that since the employee had been allowed on prior occasions to use the truck, he would have believed that there was an inference of implied permission. Vehicle and Traffic Law § 388 (1) states that an owner of a motor vehicle is liable for the negligence of one who uses or operates the vehicle with the owner’s express or implied permission.

Because of this, the majority of the Westchester Justices ruled that the employee had discretion to use the vehicle and is liable to cover him in the accident.
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On July 2, 1955 at around four o’clock in the afternoon, a truck driver left the Twin Bridges bar and headed west on Route 11 between Mooers, New York, and Champlain, New York. At some point his truck came in contact with a vehicle that was eastbound. The eastbound vehicle was occupied by a male driver, his wife, two daughters, and his daughter in law. The Staten Island male driver of the car was killed in the commercial truck accident. The wife was still in the hospital and unable to testify at the time of trial. The daughters both claimed that they saw the truck shortly before impact cross over the center line of the road to sideswipe their vehicle. The daughter in law, who was seated directly behind the deceased driver stated that she had observed the truck cross the center line previously and then return to the correct side of the road. She stated that as the gap closed between the two vehicles, the driver of the truck crossed the center line again and this time hit their car with his truck.

The driver of the truck was criminally charged with Driving Under the Influence of Alcohol or Drugs and later Vehicular Homicide. He was convicted and sentenced to five years imprisonment. The jury was not privy to this information and although there was much discussion about the truck driver’s condition, there was no proof of his condition presented in the court. In fact, although it was pointed out that at the hospital following the accident, the truck driver’s blood was drawn and was given to the State Trooper, the results of that blood alcohol content kit was not discussed in the civil trial. There was not even a mention that it was or was not tested. If the jury had been told of his criminal charges and arrest, the inference could probably have been made.

However, as it stands, the victim’s family’s Westchester attorney only brought forth witnesses who could testify to the truck driver’s condition the night before while he was at the same bar. He had been so drunk that he had tossed his truck keys to another patron. He was described as being loud and boisterous and causing a scene. However it was pointed out that this was his normal demeanor even if he was sober. It was clear that he was asked to leave the bar.

The Justices found that at no time in the original trial was the term intoxication defined. The Justices also found that the evidence of his demeanor and condition from the night before was highly prejudicial. They felt that this blurred the real issue “and confused the jury to a point which deprived the defendant of a fair trial.”

In this case, judgment is reversed on the law and a new trial ordered.
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A personal injury suit was commenced against a tractor-trailer and the employer of the driver after four adults and one infant, while passengers in an automobile, sustained injuries as a result of a truck accident. The Staten Island driver of the automobile in which they were passengers died as a result of his injuries. A collision occurred between the passenger car and a tractor trailer. The tractor trailer was under lease. This case was tried by the court without a jury and the question of contributory negligence is resolved in favor of the plaintiffs. The defendants appealed.

According to records in court, the trailer truck was without load and deadheaded westward bound from Clinton, New Jersey, to Pittsburgh, Pennsylvania. It had been raining for some time prior to and at the time of the accident. The road surface was wet and visibility was fair. The accident occurred in the early morning about one o’clock. The sources said there was failure in the tractor trailer’s engines and the passenger automobile struck the tractor which rested in its pathway.

Under the Pennsylvania law, the presence of a vehicle on the wrong side of a highway is prima facie evidence of the driver’s negligence and the skidding or sliding of a vehicle of itself does not constitute negligence of the driver. It is thus incumbent upon the plaintiffs to prove that the skidding or sliding of the vehicle was due to the negligence of the driver. The operator of a motor vehicle is bound at all times to exercise reasonable care in its operation. As sliding or skidding of itself does not constitute negligence, something additional must be shown to justify a finding of negligence.

Applying these principles to the case at bar, the Westchester court found negligence in the operation of the trailer truck. The court noted that it is apparent that the trailer tractor failed to keep traction while proceeding up the grade necessary to remain in its lane. Although its first sliding may not have been anticipated, after its driver had straightened out and gained control of the vehicle, since the highway was then free of other traffic, he should have reasonably attempted to ascertain the cause of the slide in order to avoid its repetition, the court said. This he failed to do, and there was no explanation given for the second sliding of the trailer truck.

Accordingly, the court found that the tractor-trailer driver failed to exercise reasonable care in the operation of the trailer truck.

The court also found the employer of the tractor-trailer driver chargeable with the negligence. The lease covering the tractor-trailer provides that the tractor-trailer is solely and exclusively under the direction and control of the lessee.
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On November 4, 2003 at a construction site on Cantiague Rock Road in Hicksville, New York, an employee of a concrete company was injured. He was working as a concrete laborer on the site. His job on that day was to prepare a concrete frame for a lamp pole base in the parking lot area of the job site. While he was standing next to the hole that the lamp pole base was going to be put in, he was struck from behind. The blow knocked him in to the hole and caused him serious bodily injury. He never saw what struck him. Witnesses on the scene, however, stated that they observed the concrete laborer standing on the side of the hole placing the wooden frame. They stated that the concrete truck had begun to back up and apparently did not see the concrete laborer. The chute of the concrete truck was down in preparation for the pouring of the concrete into the hole. The chute struck the concrete laborer in the area of his upper back which pushed him in to the hole.

The Staten Island concrete laborer filed a law suit against the construction company, the property management company, the property owner, the concrete company’s independent contractors and the concrete company. Within the first year of the law suit, most of these companies were able to prove that they were not involved in the truck accident and had no liability connected with the accident. What was left was a lawsuit against the concrete company, the subcontractors of the concrete company, and the construction company.

The issues that are under evaluation in this suit are under Labor Law § § 240 (1), 200 and common law negligence claims. Also under consideration are Labor Law 241 (6) claims. The victim further alleges violations of the following Industrial Code regulations: 12 NYCRR §§ 23-1.23(a-c); 23-1.5(a-b); 23-1.5(c)(1,3); 23-1.7(b)(1)(I), 23-4.2(a, f-g); 23-9.7(d); 23-9.11(a).

In order for Labor Law § 241 to be applicable to this suit, the victim is required to show specific Industrial Code violations that support his cause of action. He did so and added US Dept. of Labor, Occupational Safety and Health Administration §§ 1926.601(b)(4), 1226.651(a) and 1926.702(b). Because the victim was able to articulate and specify the applicability of Labor Law § 241 9(6) he succeeded in convincing the court that his contentions held more weight than the company’s did.

However, the victim also attempted to add to his claim that there was a large pile of debris on the accident site that he believes could have caused the accident. The company disagreed and the Court Justices stated that there was no reason to believe that if the pile of debris had not been present, that the concrete truck would not have backed up to pour the concrete. Since the concrete truck would have still had to back up to pour the concrete, the accident still would probably have occurred. The presence of the pile or lack thereof would not have altered the facts of the case that set this accident in motions. In order for the company to complete the job required by pouring the concrete into the hole, the frame had to be placed by the victim and the driver of the concrete truck still had to back up and would most likely have still hit the victim. The presence of debris has no bearing on this case. The Westchester company did not suggest any arguments to overturn the complete dismissal of the victim’s Labor Law §§ 240 (1), 200 and common law negligence claims. Because of this, they are not part of the company’s motion and cannot be affected by the decision that the Court will render.
The Court must evaluate each of the Industrial Code violations as they relate to Labor Law § 241. The first one to be considered is 23-1.23 (a-c): Earth Ramps and Runways. Since there were no earth ramps or runways that might have been involved in this accident, this Industrial Code is not relevant to the facts of this case.

Industrial code 23-1.5 (a-b) and 23-1/5 ( c ) (1,3): General Responsibility of Employers deals with health and safety protection which is required. These subsections also deal with the requirement of competency in providing workers with a work place that contains equipment in good condition and safeguards to ensure a safe working environment. Since these subsections all deal with the general responsibilities of employers they cannot be a basis for liability under Labor Law §241 (6). In order for this Law to be in effect, the victim must site specific violations and not general conclusions.

23-1.7 (b)(1)(I): Protection from General Hazards, (b) falling hazards (I ) hazardous openings does not define what is meant specifically by a “hazardous opening.” This Law is also not relevant to the accident in question because it deals with providing barricades or substantial cover over an opening. In order for the job to have been completed, this Law cannot apply since covering the opening would have prevented the pouring of the concrete to complete the job. Also, barriers would not have prevented this accident since both the concrete truck and the concrete laborer had to be present within the confines close to the hole in order to make the lamp post base.

Likewise, 23-4.2(a. f-g): Trench and area type excavations, does not apply since this was not a trench or an excavations. There were no walls that required shoring. This accident did not result of because of a slide and/or cave in.

Labor Law 23-9.7 (d) refers to the backing of trucks at construction sites. However, this law is also not applicable because there was an additional employee who was in place to observe, guide, and signal the driver of the cement truck as it was backing up. This rule also does not take in to consideration an employee standing off to one side while a vehicle is backing and getting struck by something protruding from the vehicle.

Labor law 23-9.11 (a) as it pertains to mixing machines and charging skips is not relevant since this accident did not occur as a result of walking under a charging skip. There were no charging skips involved at all. Because none of the specific Industrial Codes listed by the victim were relevant to this case, the Court finds that the victim’s Labor Law § 241 (6) claim is dismissed.
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A wife, on behalf of the estate of her late husband, commenced an action against the owners of the Westchester company employing the husband, a truck company and a steel company, to recover money damages for the wrongful death and conscious pain and suffering of her husband.

According to sources, the husband was severely injured in the course of his employment during tree cutting and removal operations when he was struck by a tree trunk which was suspended from a crane and wire rope, which were designed, manufactured and sold and distributed to his employee by the defendant companies. He died as a result of those injuries. The husband’s employer, a business involved in the storage and transportation of bleachers, was clearing property leased by it from the couple to create storage space for bleachers.

The New York Labor Law imposes a non-delegable duty on owners and contractors to provide reasonable and adequate protection to workers making them “responsible for a breach of the requirements of the statute irrespective of their control or supervision of the work site.” While the duty imposed by the law may not be delegated, the burden may be shifted to the party actually responsible for the accident either by way of claim of apportionment of damages under certain rules or by contractual language requiring indemnification by the injured worker’s employer.

In this case, the owner of the equipment, which caused the truck accident, claimed no defect in the premises themselves, but focused on the existence of a defect in the crane’s wire rope or negligence in the supervision and execution of tree cutting and removal operations. The oral lease agreement to the property owner’s family-held corporation is silent as to the details of safety rules and even as to decisions on property alterations. The Staten Island court found that there is some evidence that the couple took no part in the supervision of the operation, but that she observed the operation of the crane shortly before the accident occurred and her actual or constructive knowledge of the unsafe manner in which the operations were performed is a triable issue of fact.

The court further noted that the couple supervised the employer’s operations and appears to have been responsible for establishing equipment inspection procedures and supervising the details of tree cutting operations. Any actual or constructive knowledge the couple had in their capacity as supervisor existed, and is inseparable from his knowledge as property owner. Because exercise by the property owner of control over the details of the manner of work, or actual or constructive knowledge on the part of the property owner of an equipment defect gives rise to liability under the Labor Law, they constitute triable issues of fact.

Losing a loved one and being involved in a lawsuit as a result of the negligent acts of someone else is difficult for all. To preserve and protect your rights, there are Attorneys who will stand by you and help see you through your case. These Attorneys can argue your side and make sure that you and your loved ones are compensated.
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On August 26, 2005, a passenger car and an 18 wheeler crashed at the intersection of Queens Boulevard and Van Dam Street in Queens, New York. The driver of the car advised that she was on Van Dam Street and was making a left turn onto Queens Boulevard, which has three westbound lanes. An 18 wheel commercial truck was in the lane to her right. The driver of the car stated that when traffic began to pull forward, the commercial truck began to merge in front of her vehicle. She said that she stopped and remained stopped in traffic while the truck struck the front passenger side of her vehicle and proceeded to pull of her bumper. The front seat passenger advised that the passenger car that she was in was at a complete stop in the left most lane when the last wheel of the commercial vehicle struck the right front bumper and crushed the passenger side of the vehicle inward trapping her inside the car.

The driver of the commercial tractor trailer stated that he was making a left turn onto Queens Boulevard from Van Dam Street in the right lane and was moving into the center lane, which was reserved for trucks only. The driver stated that before merging, he looked in his mirrors and did not see anything in the center lane where he was merging. The driver of the truck stated that he was about halfway into his turn when he felt the vehicle make contact with another vehicle. He later testified that he did not see the passenger car prior to the accident, but did see the passenger car hit his tire. The Westchester truck driver stated that when the contact occurred, both vehicles were moving and that the passenger car was moving faster than his truck. After the accident, the truck driver stated that the driver got out of the passenger side of the moving car and approached the front window of his truck. The driver of the passenger car has asked the court for a summary judgment to find that liability for the accident rests entirely on driver of the truck and does not rest at all on her. Both the driver of the commercial vehicle and one of the passengers in the passenger vehicle, ask that the summary motion be denied because there are more issues of fact that need to be decided.

There is clearly a conflict of testimony in that each driver states a completely different account of the accident than the other. The driver of the truck is maintaining that either the passenger vehicle was trying to pass him on the left hand side while he was making a left hand turn, or that the passenger vehicle was trying to change lanes in front of his vehicle. The driver of the truck further maintains that the center lane of the roadway is reserved for trucks and that because his vehicle makes wide turns, the passenger car would have had to move into on-coming traffic in order to pass his truck. The truck driver also states that the driver of the passenger car was not actually driving her vehicle at the time of the accident. He states that the alleged passenger of the vehicle was actually the driver of the vehicle. He stated that the woman who identified herself as the driver of the vehicle, but who did not have any identification on her at the time of the accident had a tattoo on her left bicep of a scroll. At her deposition, the alleged passenger of the car had a tattoo on her left bicep that was a scroll. Also, the driver of the passenger car had a tattoo on her left arm of a cross. There is also dispute about if the passenger door was operable after the accident.

The alleged passenger advised that following the accident, she was trapped in the vehicle because the door was jammed by damage caused in the accident and that it could not be opened. The driver of the commercial truck advised that the passenger had exited the passenger vehicle and approached his window and that the person he had seen exit the passenger side was the person who is now claiming to be the driver of the car.

Because these issues are in conflict, the court finds that it must deny the passenger car driver’s motion for summary judgment to find liability on the part of the commercial truck driver. The court also dismissed any motion for summary judgment on the part of the passenger car driver as it regards any liability to her as far as damages by her passenger are concerned.

This does not mean that the case is over. What happens next is that the issues that are in question must be decided in a court of law. Since the parties involved are unable to reach agreement about what happened the date of the accident, the court must call other witnesses and review the accident report and other documents that will more accurately reflect the conditions of the vehicles and the debris located in the roadway. It is cases like this that are tried on points of law and on physical evidence rather than on visual testimony as it is presented. Witnesses will be called possibly including the police officer who handled the accident scene. It will be important to determine if the damage to the passenger vehicle is consistent with it becoming jammed because of the damage that befell the vehicle in the course of the accident. It will also be important to determine where the debris from the accident was located, which should be recorded on the accident report. If there were any skid marks on the roadway, they will also be important in the judgment of where the vehicles were located on the roadway at the time of the accident. In cases such as this, it is even more important to have proper legal representation to maneuver the court system. It is clear in this case that proper trial management is the only way to solve the disputes between these parties.
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A man was sitting in his truck at a stop light when he was struck in the rear by a commercial rental truck causing substantial injury to his vehicle and to him. He and his wife filed a lawsuit against the driver of the rental truck, the business that hired him, and the rental company that leased him the vehicle.

The Long Island rental company appealed the Supreme Court’s first decision because they should not have included it in the issue at all. They advised that they hold no liability in the course of this accident because all they did was lease the truck and that the truck had been maintained in good working order. They advised that there was nothing wrong with the truck or the truck’s brakes which would cause it to strike the vehicle in front of it without driver error.

The driver of the rental truck had made a deposition earlier in which he had agreed that there was nothing wrong with the rental truck or its brakes and that the accident was driver error. The Westchester driver was using the rental truck in the course of his business and was working for that business at the time of the accident. The business concurred that he was working for them and that it was their business.

The rental truck company moved for summary judgment based on the Graves Amendment (see 49 USC §30106), “it could not be held vicariously liable for the accident. . . .(because) pursuant to the Graves Amendment, generally, the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner.” In this case, there was clearly no negligence or criminal wrongdoing on the part of the rental car company in that the vehicle had been maintained in good working order. The accident was admittedly driver error.

The Supreme Court ruled that the summary judgment on the issue of liability as it related to the rental car company needed to be dismissed. That based on the evidence and the law, they could not be held liable in this case.

As far as the liability goes, the law is clear that a rear-end collision establishes a prima facie case of negligence on behalf of the driver of that vehicle.
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A case was filed raising the issue of whether the collapse of forms used for framing poured concrete foundations, stacked on top of a flatbed truck that killed a 40-year old man falls within the provisions of the New York City’s Labor Law or common law negligence.

One day in March of 2006, the man was fatally injured while standing on a flatbed truck when a bundle of concrete forms lying on the floor of the truck fell on him, causing him to fall to the ground below. The decedent was employed by a subcontractor to the owner of the premises where the accident happened. The subcontractor was to perform demolition, excavation, and foundation work in the construction of house.

The project where the demolition was done called for the construction of several three-family and two-family homes. The decedent had been working on the site loading concrete forms onto a flatbed truck. The forms were used in pouring the concrete foundation and were then removed. The forms were then stacked in groups of fifteen, bound together, and lifted by a Caterpillar 320 machine out of the foundation hole and onto the flatbed truck. There were six bundles of concrete forms that had to be lifted. Each bundle contained 15 concrete forms that were tied with two metal straps on each side. The truck accident occurred with the fourth bundle.

The Westchester contractor denied liability to the decedent under the Labor Law asserting that it was not an “owner,” “contractor,” or “agent” of the owner or general contractor at the time of the accident. Since it was undisputed that the contractor was the owner nor general contractor on the subject construction project, the only issue remaining is whether it was a statutory agent of the owner or general contractor.

The court explained that an entity is deemed a contractor within the meaning of Labor Law if it had the power to enforce safety standards and choose responsible subcontractors. Therefore, to impose liability, the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition. To recover under Labor Law, a plaintiff must establish the violation of an Industrial Code provision, which sets forth specific, applicable safety standards, in connection with construction, demolition, or excavation work.

An employee of the contractor testified that the owner of the building hired all of the subcontractors to perform work on the subject construction project, and the contractor did not exercise any supervision or control over the work performed by the decedent and had no authority to do so. The court also found that there was no violation of any Industrial Code provision by the subcontractor because court testimonies showed that the decedent was not working in an area that is considered hazardous.
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In January, a tour bus filled with high school students was travelling down the highway returning from an Honor’s Choir concert at the University of North Dakota. An accident ahead forced the bus to slow down.

The wreck was severe. According to a witness, the scene didn’t look like anyone could have survived.

As the students peered out at the wreckage, a senior boy recognized his father’s car.
“None of us wanted to believe that someone we knew was in that car,” a sophomore girl said. “Once we found out it was [one of our dads], there was just a gut feeling of hopelessness.”

The boy’s father had apparently lost control of his vehicle and slid into the path of an oncoming semi-truck. The driver’s side of the vehicle sustained the majority of the damage.
Well-known throughout the community and school system, the senior’s father has endured four surgeries after suffering 10 broken ribs, a collapsed lung, a bruised spleen and a fractured left arm, a witness reported.

He has not fully regained the use of his left arm, yet. This act is crucial for the man because one of his greatest passions is playing the cello. The boy admits that it’s hard to think about his dad never playing again. “His job, his career, his life, is up in limbo right now.”
The family has tried to remain optimistic during their long journey which has included long hours at hospitals and drives to the Mayo Clinic. The experience has given the senior and his family an opportunity to think about their priorities. “It has put a lot more into perspective recently,” he said.

“We have received so much support. It is absolutely wonderful. The prayers, thoughts, donations, gifts, food and just general love have meant so much. It makes me happy to know that people do care,” the high school senior said. “A lot of people care about him, and it makes him feel good to know that a ton of people are rooting for him.”

Long Island and Westchester have seen similar wrecks.
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One of the two fire engines severely damaged in a truck accidentthis past January is set to return to duty by late June. The trucks were damaged when a tractor trailer crashed into them on an icy interstate. The fire rescue vehicles were parked on the highway in a staggered position to protect rescue workers responding to a car crash.

The incident occurred during a snowstorm at about 8:30 p.m. Six firefighters were injured. They were brought to Bridgeport Hospital where they were treated and released.

Engine 1 and Engine 5 were damaged so severely, that the common thread of thought in the days right after the crash was that they’d have to be scrapped. They had been hit simultaneously by two tractor trailers while parked on the interstate in a standard protection formation.

Engine 1, the 2008 Smeal pumper, was the department’s newest apparatus. It is the one returning in June.

The fire chief reported that Engine 5, the 2000 Pierce Saber pumper, is expected back sometime this fall.

With the damage to these two engines, the fire department was left scrambling for fire trucks. Two backup engines were pulled out of storage, but they both needed considerable maintenance. One had bad brakes and the other had a transmission issue.

So, two other fire departments were asked to loan engines to the severely crippled fire department force. The Shelton and Milford departments each loaned one.

The cost to replace the two engines would be almost $1 million. This cost is not as high as the cost of the lives they were positioned to protect. The ‘staggered’ configuration is used to direct traffic away from a crash scene. One truck is parked in the center lane and the other in the lane that car wreck is in, leaving the last lane for traffic to flow through. Had the trucks not been in positioned, countless lives may have been lost. This type of accident is common in Westchester but less so in NYC.

A Lawyer says that according to official reports from the Center for National Truck Statistics at the University of Michigan Transportation Research Institute, traffic accidents is actually one of the more significant risks of a firefighter’s job.
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