Syracuse Injury Lawyer Blog

According to Syracuse.com, the body of Richard G. Fesko was found on Friday afternoon in a manure pit off of East Lake Road in Skaneateles, New York. The circumstances of Mr. Fesko's death are under investigation. The family told police that Mr. Fesko was spreading manure the day he died.

Generally, manure is spread by a tractor equipped with a manure spreader. Customarily, the spreader is either attached to or pulled behind the tractor. Tractor attachments, including manure spreaders, can cause tractors to become unstable and tip or roll depending upon the terrain. If a tractor that does not have ROPS (roll over protection systems) flips or rolls, the driver can be thrown from the equipment and suffer serious injury and/or be crushed underneath the weight of the machine.

For more than twenty years, farm equipment manufacturers have known that ROPS save lives. While most manufacturers build their machines with ROPS, some have refused to do so -- primarily because ROPS make equipment more expensive. In these circumstances, the manufacturer of the equipment may be liable for personal injury and/or wrongful death. Other equipment was manufactured and sold before ROPS became standard operating equipment. Even so, manufacturers have a duty to notify existing customers that safety devices have become available and can be retrofit to old machines. We discussed ROPS subsidies in our prior post entitled "New York Tractor Rollover Injury and Death To Decline With ROPS Subsidy."

If you or a loved one were injured in a farm tractor accident or lawn mower accident and would like to know whether you have a claim against the manufacturer for product liability, contact our Syracuse New York personal injury lawyers at 800-336-5297 or by email at info@bottarleone.com.

From 2000 to 2006, nearly 300 construction workers died when a trench in which they were standing caved-in on them. "There are four types of trench collapse," said Syracuse personal injury lawyer Michael A. Bottar, Esq., of Bottar Leone, PLLC, a New York law firm representing workers disabled in a trench collapse. "Each is preventable."

One type of trench collapse is known as a "soil pile slide." A soil pile slide occurs when dirt removed from the trench is piled too close to the edge. If the dirt is piled too high, becomes too wet, or is exposed to vibration fro machinery, it may slide back into the hole. Even though the soil pile slide is the most common trench collapse, it causes few fatalities. The second type of trench collapse is known as a "shear wall collapse." A shear wall collapse occurs when the top part of the trench wall breaks free from the surrounding earth and fills the trench. Shear wall collapses occur most often in clay-based soil. They occur without warning and usually result in fatalities because, on average, 2-3 yards of soil weighing 5-8,000 pounds can fill the trench. The third type of trench collapse is known as a "belly slough." A belly slough occurs when the middle part of the trench wall (i.e., the belly) breaks free from the surrounding earth and fills the trench. A belly slough usually occurs around underground utilities or where there is running water near the trench. This type of cave in usually results in deep burial and worker fatalities. The fourth type of trench collapse is known as a "lip slide." A lip slide occurs when the lip of the trench fractures and a small portion of dirt falls into the trench. Sometimes, a lip slide will precede or cause a soil pile slide or shear wall collapse.

Click here to view the CDC and NIOSH web-based training tutorial called "Trench Safety Awareness," with trench collapse animations. While trench cave-ins can be prevented with sloping, benching, shoring and shielding, many contractors fail to take steps to protect workers. Recently, OSHA found that two trenches in Hahira, Georgia were dangerous because they lacked trench cave-in protection. There was no shield system in place. While on site, OSHA also found that the contractor failed to have a ladder on site to gain safe access to the trench, that employees were exposed to unreasonable fall hazards, and that employees were not properly trained about excavation hazards.

Construction sites can be dangerous, especially where property owners, contractors and subcontractors do not protect workers from known hazards. If you were injured in a New York trench collapse and would like to learn about you right to seek compensation for, e.g., lost wages and medical bills, including but not limited to Workers Compensation, contact our legal team at 800-336-5297 or by email at info@bottarleone.com.

Many people do not understand how the legal system works when it comes to an injury sustained in a car accident, or while on-the-job. "The system clearly favors the insurance companies," said Syracuse personal injury lawyer Michael A. Bottar, Esq., of Bottar Leone, PLLC. "But the Baldato decision begins to level the playing field."

New York has a "No-Fault" law which pays for lost wages and medical bills following a car accident. However, in order to receive the benefits, an injured person must do everything the No-Fault insurer says. One of the requirements will be to attend an independent medical examination, also known as an IME. At the IME, a doctor selected by the insurance company will see the injured person, usually for 15-20 minutes, and then generate a report. In almost all circumstances, the IME report will provide that there is nothing wrong with the person. No-Fault benefits then terminate (i.e., instant financial savings). A similar process exists under New York's workers compensation law. If a worker is injured on-the-job, they are entitled to lost wages and medical care provided they follow the directions of the Workers Compensation insurance carrier. One of the requirements will be to attend an IME. As is the case with No-Fault, often the IME report will provide that there is nothing wrong with the person. Workers Compensation benefits then terminate.

Until recently, you could not file a New York medical malpractice lawsuit against the IME doctor for incorrect advice, e.g., that the injured person is not hurt, has no disability and/or is fit to return to work, because of the absence of a "doctor-patient" relationship. This is no longer the case.

Following the First Department's decision in Baldato v. Rosenberg, an IME doctor can be sued for medical malpractice if: (1) s/he gives incorrect advice, (2) it was foreseeable that the person would rely upon the advice, and (3) reliance on the advice causes harm. By way of example, if an IME doctor opines that an injury to a person's lumbar spine has healed and the person has no physical limitations that prevent return to work, the person will return to work (because the IME report will lead to a termination of benefits). If the person suffers a debilitating injury lifting a heavy object (that they should not have been lifting), the IME doctor may be liable for medical malpractice.

To avoid medical malpractice liability, an IME doctor will have to talk out of both sides of his/her mouth. Reports will now have to say that the person can go back to work, but also that the person should not rely upon the contents of the report. Translation: the IME doctor's opinion is not worth the price of the paper it's written on.

Nota bene: IME doctors...we will be watching.

"New York has more than 7,000,000 acres of farmland and almost 25,000 farm families. And farming in New York, especially on our hilly landscape, can be challenging," said Syracuse personal injury lawyer Michael A. Bottar, Esq., of Bottar Leone, PLLC, a team of New York product liability attorneys.

According to the National Safety Council, the leading cause of farmer death over the past 40 years has been tractor rollovers or overturns. Many of the tractors involved in incidents leading to serious injury or death were brought into the country long ago. Some of the tractors were imported through intended channels, including authorized United States dealers and distributors. However, some of the equipment is "gray market." Gray market equipment is equipment manufactured for another market, such as Asia, but imported into the United States through private channels for resale and use.

However tractors made their way into the United States, and into the possession of New York farmers, many are not equipped with rollover protection systems (also known as ROPS). ROPS include seatbelts, as well as cabins or cages to protect an occupant from a crush injury should the equipment flip during use. "These machines may be unreasonably dangerous and, in turn, defective," Bottar said.

This year, New York State will spend as much as $100,000.00 to equip tractors with ROPS by offering a discount or subsidy to farmers of $600.00 for a ROPS system to update equipment manufactured by, e.g., Kubota, Yanmar and Caterpillar. The telephone number for the ROPS hotline is: 1-877-ROPS-R4U.

Continue reading "New York Tractor Rollover Injury and Death To Decline With ROPS Subsidy" »

Michael A. Bottar, Esq., an an attorney representing the the victims of negligence and malpractice throughout the State of New York, was re-elected this month to the Board of Directors of the New York State Academy of Trial Lawyers. The New York State Academy of Trial Lawyers is a 1700 member organization that is committed to protecting, preserving and enhancing the civil justice system.

Michael Bottar is also an adjunct professor at Syracuse University College of Law, where he co-authors the Civil Practice chapter of the Syracuse Law Review Survey, and is a member of the Board of Directors of the Syracuse University Law Alumni Association.