When a personal injury occurs as a result of falling from scaffolding at a residence in the City of Buffalo, whether the injured party may proceed against the homeowner is governed by New York Labor Law section 240.

Labor Law section 230[1] applies to cases involving a person hired to work in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.  It requires that all contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices.  All of these devices must be constructed, placed and operated as to give proper protection to the person so employed.

As a result, if the owner of a one or two family residence has contracted out for work on the residence, he or she is not responsible for failure to properly set up, maintain or operate scaffolding, so long as the owner does not direct or control the work.  The responsibility instead falls on the contractor for any injury caused by a fall from improperly constructed, placed or operated scaffolding.

This section of law also protects professional engineers, architects and landscape architects who do not direct or control the work for activities other than planning and design from absolute liability for an injury caused by scaffolding.  This exception, however, does not eliminate liability for these individuals arising under the common law.

If you have suffered a personal injury in a fall and have any questions, we would be happy to help you.  Call us at 716-542-5444.

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While the “emergency doctrine” may apply to all kinds of personal injury cases, its most common application in Buffalo personal injury lawsuits is as a defense in automobile accidents.  Basically, the emergency doctrine is a claim that because the person was responding to an emergency situation, he or she is not responsible for the actions that led to an injury.

The rationale behind this doctrine is that a person facing an emergency acts without opportunity to consider the alternatives.  As a result, he or she should not be held negligent if he or she acted as a reasonably prudent person would act in the same emergency.  That the driver made the “wrong choice” and failed to avoid an accident does not eliminate the emergency doctrine as a defense. 

The driver’s conduct, however, must still be deemed reasonable for an individual confronted with similar circumstances.  As an example, a defendant has been found to be acting reasonably by the trier-of-fact under the following circumstances. 

The defendant was caught in a sudden snowstorm.  She braked because she thought she saw a truck stopped in her lane and slid into the shoulder of the road.  As she was attempting to back up off the shoulder, she was struck by a trailer.  The court found that it was reasonable for her to back up even though it turned out to be the wrong decision.

If you have suffered a personal injury and have any questions regarding this topic, please feel free to call us at 716-542-5444.

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Buffalo residents who suffer a serious personal injury and receive Medicare – either prior to the injury or as a result of it – or may soon be eligible for it may hear the term MSPRC.  MSPRC stands for Medicare Secondary Payer Recovery Contractor.  It is the organization responsible for recovering medical payments made by Medicare that should have been paid by someone else.

This is important in a personal injury lawsuit because if you are receiving Medicare, Medicare must be notified regarding your lawsuit and any settlement you receive.

Generally, a potential personal injury lawsuit is reported to Medicare by contacting the Medicare Coordination of Benefits contractor.  Once they have the information, they will then alert MSPRC of the matter.  Once a final settlement is received, MSPRC must be provided with the information so that they can review their records to determine if any payments were made by Medicare that related to the injuries covered by the settlement. 

If such payments were made, Medicare may seek reimbursement through the proceeds of the settlement. 

Failure to comply with Medicare’s regulations in this area or to withhold reimbursement in a personal injury case may result in fines.  Medicare has many rights regarding its ability to recover payment, and you should consult with your attorney if you have any questions regarding this topic to make sure you are proceeding correctly.

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Buffalo personal injury attorneys may use a variety of evidence to establish that a defendant caused personal injury to a client.  This evidence can be broadly divided into “direct evidence” and “circumstantial evidence.”   

Direct evidence is evidence that establishes one or more of the principal facts in dispute without the need for any other intervening fact to be established.  The courts of New York State have stated that evidence is direct when the very facts in dispute are communicated by those who have actual knowledge of them by means of their senses. 

Circumstantial (or indirect) evidence is direct evidence of a fact, aside from the principal facts in dispute, from which a principal fact in dispute may be inferred.  This inference may arise from considering the piece of evidence either alone or in conjunction with other circumstantial evidence. 

While direct evidence is more persuasive and easier for a jury to understand, it is not necessary to have direct evidence to proceed with a personal injury lawsuit.  A plaintiff may establish a defendant’s fault based entirely on circumstantial evidence.  In a civil lawsuit, a plaintiff is not required to present proof that excludes every other possible cause of an accident.  Instead, the proof must establish that potential other causes are sufficiently remote that a jury may base its determination upon logical inferences drawn from the evidence. 

If you have suffered a personal injury and have any questions regarding this topic, please feel free to call my office at 716-542-5444.  We would be happy to help you. 

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Occasionally, a Buffalo personal injury lawsuit may involve a claim of “negligent entrustment” on the part of one of the defendants.  Negligent entrustment is the act of leaving an object, such as a car or a weapon, with someone whom the lender knows or should know could use the object to harm others due to such factors as youth, inexperience, or personal history.

 A current area of interest regarding the application of negligent entrustment as a basis for pursuing a personal injury lawsuit involves rented or leased vehicles.  Generally, car rental agencies are protected from liability when driver’s of their vehicles cause accidents under the federal Graves Amendment.  If, however, the rental company gave or rented a car to a person that they knew, or should have known, was not competent to drive or was likely to cause injury to others, the rental company may be liable if that driver causes an accident. 

Since these cases hinge on what the rental company knew or could be reasonably expected to know about the status of the driver, the courts are still determining the parameters under which such cases may be pursued.  As an example, however, the Federal Court for the Eastern District of New York recently has ruled that the Graves Amendment did not protect a car rental company against an allegation of negligently entrusting an automobile to someone without a valid driver’s license who later injured another party in an accident. 

The renter involved had presented a document that was purportly an Israeli driver’s license, which was written in Hebrew with no picture on it.  The rental company apparently took no steps to confirm that this was actually a license, which it was not.  When the driver injured an individual in an automobile accident, the injured party sued the rental agency.  The ruling of the Federal Court for the Eastern District of New York may allow the case to proceed under a theory of negligent entrustment.   

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