On August 10, 2022, President Biden signed the Camp Lejeune Justice Act into law. This landmark legislation mandates that all cases must be initiated within 2 years from the date the law was signed. This deadline is August 9, 2024 – less than a year away.

Litigation Updates

The Incident: On August 8, 2017, tragedy struck when a construction worker was working on a Brooklyn construction project for a contracting company. He was tasked with installing an air conditioner condenser on a rooftop when he fell from a height of 10 feet, landing on the rooftop below. The fall caused severe fractures to his spine, necessitating immediate emergency surgery. Tragically, the worker’s spinal cord was damaged in the fall, resulting in permanent paralysis from the waist down. His life was forever altered, and he now requires constant medical care and assistance with everyday activities.

The Verdict: After a comprehensive trial, a Brooklyn jury delivered a landmark verdict on April 21. The jury unanimously found the defendant responsible for failing to ensure the worker’s safety at the time of the incident. As a result of this negligence, they awarded the worker an unprecedented $53.5 million in damages. This substantial compensation aims to address the worker’s extensive medical expenses, loss of earnings, pain and suffering, and the significant impact the accident has had on his quality of life.

The unfortunate accident of this morning is very sad, but it is not a new one. At Caesar, Napoli & Spivak PLLC, we have seen events like this a multitude of times throughout our over 30 years of practice. When contractors ignore repeated warnings of dangers and put the lives of workers and pedestrians at risk. As a worker on a construction site, you have the right to a safe and secured workplace. If you are injured while working at a construction site, you have a right to claim workers’ compensation from your employer which will pay for medical coverage regardless of fault and lost wages. Section 240 of New York’s labor law enables construction workers to recover compensation for injuries suffered in falls from scaffolds, ladders and other elevated positions. The law makes several parties potentially liable for damages should an accident occur, including the property owner, construction company and scaffold owner.

Our team of construction accident lawyers have represented seriously injured victims for decades, and we are familiar with how certain injuries affect one’s abilities to work and function on a day-to-day basis. When a worker is injured on a construction site, they may be able to pursue a claim for damages, in order to help recover lost wages, obtain compensation for medical costs, pain and suffering, and other losses.

In April 2014, two unknowing victims, 62-year-old Voncile Hill and her husband, 74-year-old Melvin Hill, were driving their 2002 Super Duty F-250 on a highway in Georgia when one of their truck’s tires blew out. The truck overturned, the roof caved in, and the elderly couple was crushed and killed.

In the negligence and wrongful death lawsuit that followed, attorneys for the couple’s estate sought out to prove that the couple would have survived the wreck if the truck’s roof had not been defectively designed and manufactured. At trial, the personal injury attorneys presented evidence of nearly 80 similar occasions where accident victims were either killed or seriously injured due to roofs on the defective trucks caving in during rollover accidents.

Queens County, NY

The plaintiff pedestrian, 40 at the time, contended that as he was crossing in the crosswalk, the defendant driver of a NYCTA bus made a left turn from behind him without making adequate observations, striking him with the left front of the bus and rolling over him. The plaintiff maintained that he suffered severe crush injuries to the lower half of his body and that the injuries included a severe wound to the groin , and the need for a hemipelvectomy in which the leg was amputated at the hip. The defendant sent out a “rapid response investigative team” who concluded that the incident occurred approximately 70 feet from the intersection, after the defendant had completed her left turn and that the plaintiff had walked into the side of the bus. The police report was largely consistent with the NYCTA position.

Jun Chen, now 41, was riding on his bike in May 2015, on Broadway in lower Manhattan, when he stopped at a red light, according to his lawyer and court documents. As the light turned green, he slowly gained speed when a 2012 Honda sedan, driven by defendant Allan Cooper, “took off fast” from the light and struck Chen from behind, according to James Napoli, Chen’s lawyer.

Chen, who had a bag of Mexican food over the handlebars, was thrown from the bike and landed hard on his right knee before rolling around the pavement in pain, according to Napoli, founder of Caesar, Napoli & Spivak, a 10-lawyer personal-injury firm in Manhattan.

Plaintiff moved for summary judgment on the issue of liability under the common law principle that a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle. The court granted Plaintiff’s summary judgment motion on the issue of liability. Therefore, the matter proceeded to a damages only trial.

Following the collision, Plaintiff was removed from the scene of the incident to New York Presbyterian Hospital – Lower Manhattan, where he was treated and released.

This rule had the potential to make a significant impact on both nursing homes and their residents, since most nursing homes receive federal funding. However, it was never fully realized, leaving both the individuals living in nursing homes and the institutions themselves in limbo. Before the rule could be enacted, the nursing home industry along with the American Health Care Association sued the Department of Health and Human Services and the Centers for Medicare and Medicaid Services. They contended that the proposed rule violated the Federal Arbitration Act and overstepped a federal agency’s authority, and they won a temporary injunction, halting it.

Now, as the current administration unravels many Obama-era policies, it seems likely that this one will never come to fruition. In June, the CMS announced its plan to do away with the rule. However, more than 75 consumer, health, and advocacy groups joined together as the Fair Arbitration Now Coalition to oppose the CMS’ effort to reverse this protection for the elderly. They claim that pre-dispute arbitration agreements create an unequal balance of power in favor of nursing homes. Additionally, many new nursing home tenants are not aware that they’re signing away their right to sue.

Following the slew of hurricanes that have buffeted the east and southern coasts in recent weeks, 46 House Democrats wrote a letter to CMS Administrator Seema Verma demanding change. “The horrific reports of abuse at facilities in Florida and Texas in the wake of Hurricanes Irma and Harvey underscore the need for your agency to reconsider upending the legal protections of those who have worked and saved for their entire lives to retire with dignity,” the letter stated. “This is a time when we should be protecting our nation’s seniors, not rolling back their fundamental right to hold wrongdoers accountable for neglect and abuse.”

The attorneys general of 16 states, including those of New York and Washington, D.C., have sent comments to the CMS opposing the reversal of the Obama rule. The AGs said in their comments: “Pre-dispute binding arbitration agreements in general can be procedurally unfair to consumers, and can jeopardize one of the fundamental rights of Americans; the right to be heard and seek judicial redress for our claims.”

While the AGs said they do not oppose arbitration agreements that are mutually agreed upon by both parties after a dispute, they do oppose them upon entrance to a nursing home— particularly because families who need to place their loved ones in a care facility do not have the option to object to arbitration agreements, or find another nursing home that does not require them to be signed. Said Washington D.C. AG Karl A. Racine, “We are urging the Trump administration not to force vulnerable residents to sign away their own rights to gain the care they need.”

Sources:

Lee, Bruce Y. “You May Lose Right To Sure Nursing Homes, If Obama’s Rule Is Overturned.” Forbes 07 August 2017.

Leonhardt, Megan. “The Trump Administration Wants to Kill a Rule Protecting Elderly from Nursing Home Abuses.” Time 05 June 2017.

Roubein, Rachel. “House Democrats plead for right of residents to sue nursing homes.” The Hill 04 October 2017.

Wheeler, Lydia. “Fight Over Right To Sue Nursing Homes Heats Up.” The Hill 06 August 2017.

Wheeler, Lydia. “16 States, DC Push Trump Admin To Protect Right To Sue Nursing Homes.” The Hill. 08 August 2017

In 2010, a nursing student and her friend were drugged and raped by a member of a Saudi prince’s entourage at the Plaza Hotel. The unnamed Jane Doe endured a great deal of suffering after the incident, including a suicide attempt and Post-Traumatic Stress Syndrome. She withdrew from nursing school and lost her job, and has been unable to maintain full-time work since the attack.

Perpetrator Mustapha Ouanes was sentenced to 10 years in prison for his crimes, which included drugging and assaulting the plaintiff and her unnamed friend. The 2012 criminal jury convicted Ouanes on five charges; he was later found liable on several civil counts in a summary judgment in December 2016. U.S. District Judge Robert Sweet of New York awarded the plaintiff $2.25 million in compensatory and punitive damages, writing that, “the sexual violence committed by the defendant undeniably constitutes morally reprehensible or utterly reckless behavior.”

In a social media post, former U.S. Olympic gymnast McKayla Maroney took part in #MeToo, sharing her story of sexual abuse by Lawrence G. Nassar, a USA Gymnastics doctor. Maroney wrote, “People should know that this is not just happening in Hollywood. This is happening everywhere. Wherever there is a position of power, there seems to be potential for abuse.”

Nassar, like Ouanes, is presently in prison; however, he is also awaiting trial on 22 counts of first-degree criminal sexual conduct involving at least seven victims, and is being sued by over 125 women in civil court. The civil suits are currently in mediation, and Nassar has pleaded “not guilty” to the criminal charges (his current prison sentence is in regard to possession of child pornography, to which he plead guilty).

Weinstein himself may face criminal charges in New York and London, where he is currently under investigation. Whether he is charged or not will depend largely on when the incidents occurred and the statute of limitations in these cities. Allegations against him include rape, forced oral sex, groping, and harassment in cities including New York, Los Angeles, Toronto, and Cannes. If the statute of limitations allows, one or more alleged victims may take Weinstein to court as a means of holding him publicly responsible.

That was Ginger Utley’s primary motivation for bringing a lawsuit against her abuser when Utah’s statute of limitations for child abuse was extended. Jesus Hurtado, Ginger’s neighbor and Sunday school teacher, emotionally and sexually abused her from the ages of 13-18. Ginger told a number of people; however, she says, “…nobody did anything. Nobody called the police.” When law enforcement was finally called and criminal charges were brought against Hurtado, he was allowed to plead guilty to misdemeanor lewdness counts. He was eventually sentenced to only 90 days of home confinement, and ordered to pay the costs for Ginger’s therapy (which he never did).

Ginger Utley believes Hurtado’s guilty plea helped her civil case— the public admission enabled her to settle her civil lawsuit quickly. She won an $875,000 settlement, and Hurtado was banned from having unsupervised contact with minors for a decade.

More than the money, however, Utley felt a “huge sense of relief,” in being able to hold Hurtado accountable. She says, “the impact on my life was enormous. I just wanted to say what he had done. I wanted a public way of saying that he did this.”

Victims of abuse often find some measure of solace in civil suits. Publicly holding their abusers accountable provides that sense of relief in being heard and believed. Whether or not any of Weinstein’s alleged victims pursue civil suits against him, anyone who has experienced such abuse should know that justice can be found in civil as well as criminal courts.

Sources:

Armen Graham, Bryan. “McKayla Maroney Says Sexual Abuse By Team Doctor Started When She Was 13.” The Guardian 18 October 2017.

Grant, Jason. “Woman Raped at Plaza Hotel By Saudi Prince’s Helper Awarded $2.25 Million.” New York Law Journal 12 October 2017.

Miller, Jessica. “How One Woman Sued Her Childhood Sexual Abuser Years Later— And Won— Thanks To A Change In Utah Law.” The Salt Lake Tribune 1 October 2017.

Warner, Kara. “Could Harvey Weinstein Go To Jail? What’s Next in Hollywood Sex Assault Scandal.” People 11 October 2017.

On November 5^th, daylight savings will end, meaning twilight will descend upon the city earlier in the day, and the potential for biking accidents will increase. These accidents don’t just put cyclists at risk; reduced visibility is a hazard for pedestrians, as well. For these reasons, it’s wise for all travelers to review the laws and best practices for biking in the city.

A key point to remember is that bicyclists have the same rights as the drivers of motor vehicles. However, they also bear the same responsibilities. If a cycling collision results in the injury or death of a person, or in damage to property, the cyclist must stop and exchange their name and insurance information with the other party. They must also report the accident to the Police Department.

Every bicycle on the road must be maintained and have working accessories for safety, including a white headlight and red taillight that must be used from dusk until dawn, working brakes, a bell or other audible signal, as well as reflective tires or other reflective devices. 

Like motor vehicle drivers, cyclists must obey traffic signs and signals, as well as pavement markings. While many streets lack designated bike lanes or routes, cyclists are allowed to bike on arterial and local streets throughout the city. However, if a bike lane is provided, then cyclists must use it, except in instances of access, turns, safety, etc. Cyclists may use either side of a 40-foot wide, one-way roadway. They are prohibited to ride on the roadways of certain bridges, highways, and expressways, though in these cases there is typically an alternate route for bicycles provided.

One important rule impacting pedestrian safety is that bike riding is not allowed on sidewalks unless there is a sign that specifically allows it, or the rider is a child on a small bicycle. Bicycles ridden on sidewalks are at risk of being confiscated, and riders may face legal sanctions.

Finally, here are a few important, but oft-ignored rules regarding cyclists themselves. Cyclists are required to use hand signals when making both right and left turns, as well as for stopping. Additionally, they must always have a hand on the handlebars/ steering device, and their feet on the pedals. Lastly, cyclists can only wear one earphone connected to an audio device.

Being aware of the rules for biking in the City can be vital to the safety of pedestrians and cyclists alike. Prepare for the end of daylight savings time by brushing up on the rules, and ensuring your bike is well-equipped with reflective devices and other safety accessories to keep yourself and those around you safe as the seasons change.

Sources:

Evelly, Jeanmarie and Ben Fractenberg. “Boy Struck By Cyclist on Central Park West, Officials Say.” DNAinfo 6 October 2017.

Heins, Scott. “Box Truck Driver Fatally Runs Over Cyclist In Tribeca.” Gothamist 15 September 2017.

New York City Department of Transportation. “Safe Bicycling In New York City.” NYC.gov.