Articles Posted in Long Island

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On January 9, 1960 an owner of a gasoline station in The Bronx, New York. On this date, the gasoline delivery truck arrived to fill the underground tanks. There is an asphalt area on the side of the station to provide the delivery truck with a safe location to pump out the fuel. The delivery trucks are not supposed to be on the concrete customer pavilion at any time. While the delivery truck is delivering the fuel, the owner would go out to the customer pavilion to be available in case of emergency since it took about an hour for the fuel delivery.

On the date of the commercial truck accident, the owner of the station was attending to a customer at the service island by pumping the gasoline into the customer’s car. The delivery truck was on the asphalt section delivering the gasoline. When the tanks were full, the driver got in and decided to cut through the concrete customer pavilion section rather than exit out of the station through the asphalt delivery side. He had failed to secure the handles to the bulk box compartment swinging doors on the side of the truck prior to pulling off. In fact, he stated that he did not even know that the owner was out on the customer pavilion and thought that he was still in the office area.

As the truck pulled past the owner of the station, he was struck in the rear end by one of the bulk box compartment doors that were sticking out. The force of the blow spun him around and into the rear tires of the delivery truck. A witness grabbed him and pulled him free of the wheels. This accident resulted in serious injury to the gasoline station owner. A lawsuit was filed by the gasoline station owner against the delivery truck driver and the company that the delivery truck driver works for.

At trial the jury found that the gasoline station owner was guilty of contributory negligence. The Supreme Court on appeal disagreed and stated that there is no evidence whatsoever to find that the station owner was responsible in any way for this accident. He was doing his job in a legal and safe fashion when the Long Island delivery truck left the area that it was supposed to be in and struck him. The trial court verdict was overturned and the case was remitted for a new trial.
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On August 6, 2005 an employee of an ice company was driving a rental truck on Rout 25A at the intersection of Warner Road in Huntington, Long Island, New York at about ten in the morning when he ran into the rear end of another vehicle that was stopped at the traffic light.

In this case, the owner of the rental truck company is asking for a summary judgment relieving it from liability due to the coverage under the Graves Amendment that provides an owner of a vehicle that “is engaged in the trade or business of renting or leasing motor vehicles shall not be liable under any State law for damages sustained in a motor vehicle accident provided there is no negligence or criminal wrongdoing on the part of the owner.” (see, 49 USC § 30106[a])

The driver of the rental truck opposes this motion since he claims that when he attempted to stop the truck, he discovered that the truck’s brakes were faulty. He claims that his negligence to maintain the truck in a safe fashion removes any protections that the Graves Amendment would otherwise have provided to the truck rental company.

As far as the liability that exists for the driver of the truck. A prima facie case of liability is automatic when an operator of a moving vehicle strikes the rear of a stopped or stopping vehicle. In light of the facts at hand it is clear that the injured party has established its case against the driver of the truck. However, it is now triable issues of fact that the driver of the truck alleges the brakes were insufficient to stop the truck and that he is not responsible for the accident because of the brake failure. The driver of the truck is compelled to bring evidence to prove that the brakes were not safe and that the rental truck owner had knowledge or should have had knowledge that the brakes were not sufficient to stop the truck safely. Additionally, the injured driver stated that he has been involved in several accidents which have caused previous injury to his back. The insurance company for the driver of the truck has filed a motion to have the driver examined and to have information presented to determine which of his injuries are old and which ones are new.

The Justices order that there is enough question of fact for no summary judgment to be made and the case will go to trial.
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On Sunday, March 28, 1982 a commercial truck accidentoccurred in the Rotterdam Industrial Park in Schenectady County, New York. A part time employee of a transport company rented a truck from a local truck rental company and drove it to the industrial park on that date to collect a load of apace heaters that needed to be transported for shipment the following day. His nine year old son was with him in the rental truck, as was his employer. His employer’s 16 year old son and a friend of his arrived shortly thereafter in the employer’s personal car.

The Bronx employer got out of the truck at the industrial park office. The employee, his son and the two teenaged boys continued to the bay where the space heaters were located. The employee backed up the truck to about a foot or so from the building. He stated that the left just enough room for a person to get by while loading the truck. He then left the truck in reverse, but turned the ignition off. They began to load the truck.

While loading the truck, the employer’s 16 year old son decided that they needed music. He went in to the passenger compartment of the rented truck and tried to turn on the radio. It would not work. He then decided that the ignition must have to be on in order for the radio to work. He turned the ignition key and the truck came on. It lurched backward three times because it was in gear. By that time, the employer had gotten to the location. He jumped into the truck and turned it off.

When the truck lurched backwards, it pinned the employee against the wall crushing his right leg at the knee area. The injury resulted in arterial damage as well. The employee spent the next two and a half years between the date of injury and the date of trial suffering excruciating pain. He suffered pins being placed into his leg, casts, and traction devices. Multiple surgeries, relearning to walk and still the doctors stated that he would have to have the leg amputated. Damages were awarded to the worker in the amount of $1.8 million. The Long Island owner of the rental truck company contends that the amount is excessive and should be reduced.

The court disagreed.
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A 35-year old Queens man was returning, one December day, by car from New England with his wife when he met an accident. According to the man’s testimony, he had a slight collision with a van in the entrance ramp of the Bruckner Expressway. The collision resulted in locked bumpers. The two drivers exited their vehicles to disengage their bumpers. The next recollection, the man said he was waking up on the ground.

The man’s wife, now deceased, testified at an examination before trial that while she was watching her husband dislodge the bumper, a tire rolled past and hit him in the back, rendering him unconscious. She stated that the tire was traveling so fast, she thought that it killed him. The wife first saw the tire when it was about five feet away from her husband, and did not see where it came from. According to records in court, the tire had an identification tag stapled just below the tread. The tag bore the name of a tire manufacturing company.

The man filed an action against the van owner and the tire manufacturing company to recover damages for the personal injuries he sustained as a result of the accident. The tire manufacturing company moved to dismiss the action complaining that the evidence presented failed to establish any negligence on its part, and failed to connect it with the offending tire. The trial court granted the motion.

On appeal, the appellate court held that the man has established a prima facie case of negligence against the tire manufacturing company under the doctrine of res ipsa loquitur, which means the things speaks for itself. The doctrine means that there must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the truck accident arose from want of care.

The appellate court found that the evidence established the three elements required for application of the doctrine of res ipsa loquitur. A fully inflated truck tire mounted on a rim rolling down an expressway at high speed is the sort of occurrence which does not usually happen unless someone has been negligent by failing to properly secure and maintain the tire, the appellate court held. Additionally, the owner of the truck where the tire came from delivered a repaired truck tire to the Long Island tire company one week before the accident. The appellate court held that it is probable that the repaired tire was the same tire that injured the man.
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This is a case between two establishments, a service station and a Bronx flower shop, as well as the insurance companies of each of these two establishments and is about the commercial truck accident, which occurred in the flower shop and in the service station.

The owner of the truck is a couple who has been a regular customer of the service station for quite a long time. When the male owner died, the female owner wanted the truck to be sold for $100. She asked the male manager of the service station to sell the truck. He agreed to do so and went to the residence of the owners to retrieve the truck. Because the car couldn’t start, he towed the car to his service station, all with the permission and consent of the female owner.

After the male manager had repaired the car, he placed a “for sale” sign on the car and parked it on the southern side of the service station. The truck’s front end was facing the northern part towards the flower shop. Te flower shop was adjacent to the service station’s north line. The truck was parked on that area for two to three weeks, before the commercial truck accident happened.

On January 8, 1965, the male manager closed the service station at around 9 in the evening. In the morning of January 9, 1965, the male manager received a call from the village policeman. The male manager went to the service station and saw that the truck had collided with the flower shop. The flower shop’s windows were broken. The male manager called the female owner and told her what had happened so she reported the commercial truck accident to her insurance company. The male manager also reported the event to his insurance company.

The owner of the flower shop filed an action against the male manager of the service station and the female owner of the truck, because of the damages to properties that had happened. The flower shop’s owner claimed that the commercial truck accident was due to the negligence on the part of the male manager in terms of parking the truck. The male manager’s insurance company wrote and demanded the female owner’s insurance company to furnish the coverage of the accident because the male manager was insured under the provision of the policy of the female owner’s insurance company.

However, the Long Island insurance company of the female owner told that of the male manager’s that it would not honor the male manager’s coverage. The insurance company said that the coverage policy does not apply to the service station’s operators, with respect to the accidents that may arise out of the operation. The case went on and decided the judgment against the male manager.

The action made by the male manager’s insurance company is for the judgment against the insurance company of the female owner, for an amount of $1246.97. The amount is for the judgment in the action made by the owner of the flower shop. The whole amount came out of the damages, the defense’s legal expenses and prosecution’s legal defenses.

The policy of the insurance company of the female owner says that the amount paid by the insurance company will be due to the damages incurred and that the damages may include personal injury or damage to the properties.

The policy also defined the term ‘insured’. The unqualified word ‘insured’ may mean the name of the person insured, whether the person is an individual, a spouse or someone who was using the vehicle in the course of the accident, provided that the owner of the vehicle permitted that person to use the vehicle. They are the ones who are responsible for the use of the vehicle.

When the male manager took the truck from the female owner’s residence, with the keys in it, placed the sign on the truck and parked the truck on the service station, the male manager used the truck with the female owner’s permission. This means that the female owner gave her consent to the male manager’s use of the truck. When the male manager used the vehicle, he became a part of the provisions, “while using” and the “actual use”, of the insurance policy. The male manager also became an additional insured, based on the provisions of the insurance policy.

As the male manager became an added insured under the insurance policy of the female owner, the female owner’s insurance company has to pay the amount that the male manager has to pay. This is because of the commercial truck accident happened when he “used” the truck.

Even though the commercial truck accident has already happened two to three weeks after the truck was being parked on the service station, the truck was not moved from the time it was parked there until the morning of the commercial truck accident. There is no evidence saying that someone has seen the accident happening. There is no evidence saying that someone did something on the truck, which made the truck to move and collide with the flower shop, as well. It is also speculation that there is a third party that may have intervened and caused the truck to move from its initial position. There is no evidence saying that an independent act or intervening cause had occurred to cause the accident.

The court found that the commercial truck accident occurred in the flower shop, which resulted to damage to properties, was caused by the male manager’s decision to park it in front of the flower shop on the service station. However, the male manager did not use the truck during the service station’s business operations and the commercial truck accident did not happen during the service station’s business operation, as well. The male manager did not become a part of the policy’s exclusionary provision, as he became an added insured.

The male manager’s insurance company is entitled to receive an amount of $1246.97 from the insurance company of the female owner. The amount is based on the judgment amount paid by the male manager’s insurance company as payment for the action made by the flower shop. The female owner’s insurance company also needs to pay another $1080.85 to the male manager’s insurance company for the expenses incurred in the defense of the male manager in the court trials with cost of interest.
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On April 20, 1972 a taxi cab and a truck were both travelling on Second Avenue near 70th Street. The two vehicles collided and the taxi was pushed up onto the sidewalk where it hit a woman. The woman was severely injured and her leg had to be amputated. The jury in the initial trial awarded the woman $800,000 from the taxi company. No compensation was demanded of the truck company whose truck was at fault for the accident in question.

The Court stated that:

‘Whatever version of the accident is accepted in whole or in part, or in combination, the conclusion is inescapable that the truck driver failed to maintain that degree of control over his vehicle and that degree of alertness to conditions of traffic surrounding him, which it was his legal obligation to maintain under the conditions prevailing at the time and place of the accident.’

At the time of the original trial, however, there was a question of facts in the case as to how the accident had actually occurred. The Manhattan taxi driver had stated that he was driving down Second Avenue at about twenty miles per hour when he was struck in the back end by the truck. The force of the impact caused him to go up on the sidewalk and strike the Long Island pedestrian.

The truck driver stated that he was proceeding south on Second Avenue when the taxi driver attempted to cut in front of him from a lane of traffic to the left. He advised that he could not stop his truck in time and struck the taxi. A witness to the accident who was himself a taxi driver at the time of the original accident stated that he saw the taxi cut across in front of the truck. He stated that the taxi caused the original accident. The witness had, however, at different times written two statements about how the accident had occurred and both statements were different from his testimony on the stand.

The witness stated that in the first statement he had not seen the taxi cut in front of the truck but that the taxi was in front of the truck and for some reason the truck did not slow down and skidded into the rear of the cab. In the second statement, the witness stated that he observed the taxi in front of the truck straddling the first and second lanes and the cab was going very slowly. The truck was speeding trying to pass the cab and struck the cab in the rear pushing it up onto the sidewalk.

The attorney then went on to show that the witness had been paid for each of these statements by opposing counsels and that depending on who was paying him at the time, the witness’ statement reflected what they wanted to hear. The attorney for the truck driver then stated that he had refused to pay this witness for his testimony even though he had demanded payment from him just as he had from the others who had paid him for the statements that he had written. This strategy by the attorneys for the truck driver could only make the taxi defendants and the woman look like they had paid for testimony while exonerating the truck driver from guilt in the accident. The witness further stated on direct examination that he had provided the written statements which he admitted were false, because he was worried that the woman would not be able to get sufficient compensation from the insurance company for the taxi driver for her injuries. He stated that he had surmised that by writing these statements that he would be able to improve the woman’s chances of getting an appropriate compensation for her injuries in particular from the insurance company for the truck driver.
Since the trial judge in this case originally set aside the verdict, the Justices cite CPLR § 4404 which provides that after the rendition of a verdict, a judge can set aside a verdict if “. . . upon the motion of any party or on its own initiative, . . . may set aside a verdict . . . where the verdict is contrary to the weight of the evidence, in the interest of justice . . ..’ Such action should not be taken merely because the trial judge would have acted differently but ‘only where it seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence.’ (Kimberly-Clark Corp. v. Power Authority, 35 A.D.2d 330, 316 N.Y.S.2d 68.)
Basically a trial judge is responsible to set aside a verdict if it is manifestly a miscarriage of justice and the jury acted mistakenly. The Justices stated that it may be the case that the truck driver has no liability under the ‘true’ facts of the case. The Justices felt that the jury was unable to determine what the ‘true’ facts of the case were, though based on all of the “extraneous and gratuitous” evidence that the jury was permitted to hear in the course of this case which could only alter the fact-finding process.

The Justices stated that they all agreed that the evidence that was actual in this case had it been credited by the jury was sufficient to eliminate any liability from the truck driver. There was only one dissenting comment from one justice. He stated that he felt that if a new trial was ordered that the same outcome could be expected because the jury would hear the same evidence. He suggested that a reverse to set aside the verdict would be appropriate and a stipulation that the compensation should not exceed $500,000 unless everyone stipulated to acceptance of this plan and then the verdict as modified would be sufficient.
The other Justices do not agree with the dissenting view. They affirm the judge’s decision to set aside the verdict.
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On February 19, 2005 a commercial truck accident occurred near the intersection of First Avenue and 78th Street. A pedestrian was attempting to cross the street on 78th Street. A commercial truck was attempting a left turn from 78th Street onto First Avenue heading north. The Queens pedestrian was struck by the rear left wheel of the commercial truck while he was inside the confines of the crosswalk. While this would seem to be a straightforward account of an accident, there are still questions to be answered. Depending on the way you evaluate an incident, the fault can lie with either party.

The victim states that the truck driver is responsible for the accident and his injuries because he was lawfully crossing the street inside the crosswalk when the commercial truck accident occurred. The commercial company that owns the truck claims that the pedestrian was intoxicated and that the truck never hit him. They claim that he walked into the back wheels of the truck while he was intoxicated.

The question is considered as to whether a pedestrian or a motorist has the right of way at an intersection and code 34 RCNY § 4-04(b)(1) clearly states that “the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger.” Also Vehicle and Traffic Law §115(a) provides “when traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk on the roadway upon which the vehicle is traveling. . .” Several expert witnesses were offered who stated that had the driver been using due caution and looking in his mirrors for pedestrians, the accident would not have occurred. They stated that they believed that the truck driver should have been able to stop the truck which would have prevented injury to the pedestrian.

The commercial truck owners presented a doctor who worked at the emergency room where the victim had been taken following the commercial truck accident. He stated that in his professional opinion, the victim had been intoxicated when he examined him in the emergency room. However, since there was no blood alcohol test administered, it is only the doctor’s personal observations that led him to believe the state of the victim was intoxicated. There is no medical proof that the victim was intoxicated at the time of the accident or to what degree, if he had been drinking that he was impaired. Especially, since another witness who stated that he had seen the victim just minutes before the commercial truck accident and that he had not observed any visual signs that the pedestrian was drunk. In court, one witness does not necessarily count out another witness that says the opposite. Each witness must be evaluated based on the veracity of their testimony.

There was discussion brought up at the trial that alleged that a piece of the back of the commercial truck was sticking out and that it is that faulty part that struck the pedestrian. Since each commercial vehicle company maintains a Vehicle Condition Report for each vehicle the victim requested a copy of the Vehicle Condition Report for the truck that hit him. Also contained in this report would be the condition of the vehicle as a whole, to include the brakes, horns, mirror, etc. Each commercial truck is also required to have a CADEC electronic recording device for this company. This device consists of an electronic recording cartridge and a recorder. The electronic cartridge records information from the vehicle such as the speed which is recorded at given intervals set by the company. The victim’s requests for this information have been ignored repeatedly. Rather, the company provided him with sample reports that did not relate to the specific vehicle involved in the accident. Some of the witnesses also alleged that the truck was travelling at an excessive speed at the time of the commercial truck accident. The records from the CADEC and the Vehicle Condition Report would then become even more important to the outcome of this trial. However, the company maintains that due to a technical glitch, the CADEC electronic cartridge from the vehicle in question did not record any information on the date of the accident. The driver stated that he handed his Vehicle Condition Report in to his supervisor at the end of his shift, but the company claims that they cannot locate the Vehicle Condition Report for that vehicle for the date of the accident. The victim presents the supposition that the company has intentionally spoliated evidence by misplacing the Vehicle Condition Report and failing to preserve the CADEC electronic report.

Under New York law, “spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them.” Kirkland v New York City Housing Authority, 666 NYS2d 609 [1 Dept 1997]

The company submitted copies of depositions that stated that it is not unusual for the company to lose Vehicle Condition Reports. They also stated that their CADEC electronic devices have a 25% failure rate. Since there is no evidence to imply that the company intentionally disposed of the evidence from these sources, the court advised that the company must provide to the victim the maintenance records concerning the vehicle that was involved in the accident.

The court decided that the Long Island company’s motion requesting a summary judgment on the issue of liability is denied and that the victim’s motion to strike the company’s answer for spoliation of evidence is also denied except that the company is required to produce a copy of the maintenance records on the vehicle that was involved in the accident.
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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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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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A 24-mile section of Interstate 70 closed last November due to a rock slide that left boulders imbedded 6 feet deep into the roadway.

The detour prescribed by officials tending to the road closure was a 220-mile route through the western mountains.

The expected road closure is to last at least a day, as Department of Transportation workers clear the debris from the estimated 100 foot by 10 foot rock slide. Some of the boulders cleared were as large as a van.

Severe damages were inflicted on the surrounding area. Two bridges had holes punched through them, guardrails were damaged, and two wall panels on the westbound lanes toppled. Engineers were called to check the bridges.

At the time, geologists had no firm idea on what caused the slide.

A source based in Manhattan, NY, said no one was injured in the rock slide because the roadway had already been closed earlier that morning with a tractor trailer accident
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The night before, a semi-truck driver attempted to exit the highway but lost control of his large vehicle while negotiating a curve. The truck skidded 242 feet before colliding with the median barrier. After toppling to its side, it slid for another 442 feet.

The truck accident closed the same stretch of highway affected by the following day’s rock slide.

The 48-year-old driver had to be treated at a local hospital for minor injuries only. He was released and cited for careless driving.

Road crews from Long Island were actually getting ready to re-open the highway when the rock slide happened about a mile away.

A witness said there were well over 200 fatal rockslides worldwide in the first 6 months alone in 2010, before the official “Landslide Season” had even begun. With the ferocity of this slide, lives could easily have been taken by the geological forces, but thankfully they weren’t.

In cases of natural disaster, the only recompense that can be made is if you suffer more damage because of shoddy craftsmanship or construction negligence.
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