Posted By Admin on July 28, 2010

In this informative piece, Christopher T. McGrath, Esq. describes the circumstances under which a business may become liable for the actions of a driver, even if the driver is not a direct employee.

Many New York attorneys are unaware that a business that hires a vehicle and driver from a second business may become vicariously liable for the driver’s conduct even though it is not the driver’s general employer.

By way of background, in New York State it is well settled that, even where a worker is in the general employ of one entity, the worker may be transferred for a limited time to the service of another, in which event the worker becomes the “special employee” of the other

Where such a special employment relationship exists, the special employer is responsible in tort, under the doctrine of respondeat superior, for the negligence of the borrowed worker.

Although there are many factors that may collectively bear on whether an entity is or is not a borrowed worker’s special employer, New York’s highest court, known as the Court of Appeals, recently reaffirmed that a “significant” and “weighty” factor in deciding whether such a relationship exists is whether the purported special employer in fact controlled “the manner, details and ultimate result of the employee’s work.” Fung v. Japan Airlines Company, Ltd., 9 N.Y.3d 351, 359, 850 N.Y.S.2d 359, 364 (2007) (“Although no one factor is determinative, a ‘significant’ and ‘weighty feature’ in deciding whether a special employment relationship exists is ‘who controls and directs the manner, details and ultimate result of the employee’s work’ in other words, who determines ‘all essential, locational and commonly recognizable components of the [employee’s work relationship,’” quoting Thompson, 78 N.Y.2d at 558, 578 N.Y.S.2d at 109); Graziano v. 110 Sand Company, 50 A.D.3d 635, 636, 855 N.Y.S.2d 203, 205 (2nd Dep’t 2008) (“[a]lthough many factors are weighed in deciding whether a special employment relationship exists, courts have focused on the ‘significant and weighty’ fact or of ‘who controls and directs the manner, details and ultimate result of the employee’s work,’” quoting Thompson, 78 N.Y.2d at 558, 578 N.Y.S.2d at 109).

The “Borrowed Driver” case occurs when a business, lacking sufficient drivers or vehicles of its own, leases a vehicle and driver from another. In such instance, while the driver’s true or general employer (the one who pays the driver’s salary) will still remain vicariously liable for the driver’s conduct, the hirer may also stand vicariously liable in its capacity as “special employer.”

There are exceptions. Vicarious liability will not lie if the hirer is really a consumer and not a business (e.g., an individual who calls an agency/employer for a chauffeur). Also, where the hirer merely hires the driver (or the driver’s general employer) to go from Point A to Point B without interfering with the manner or means by which that task is accomplished, that too will not be deemed a special employer relationship.

However, in the far from uncommon case in which a business leases a vehicle-and-driver for purposes of the business and in which the lessee does direct the details of the driver’s day-to-day activities, the courts have time and again held that there is, at the least, a question of fact as to whether the driver thus became the hirer’s special employee. Indeed, the situation of the Borrowed Driver has recurred so frequently in the case law that the Appellate Division for the Third Department long ago characterized it as the “classic” example of special employment.

New York vehicle accident attorneys with experience in handling car accident cases take heed: the driver’s employer is sometimes not the only employer that stands responsible for the driver’s conduct. The existence of a second responsible party may have significant impact upon the availability of insurance and assets to compensate a person injured in an accident.

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Category: Personal Injury | No Comments »
Tags: car injury lawyers, new york auto accident lawyers, new york car injury attorneys, new york lawyers, ny auto injury lawyers, vehicle injury lawyer

Posted By Admin on July 21, 2010

In the past decade, obtaining a “perfect smile” has become big business. A large number of teeth-whitening products and treatments have been introduced to market, and are sold at pharmacies and grocery stores. A new industry, “cosmetic dentistry”, has sprung up to meet the demand of Americans unhappy with their natural smile. On one hand, any consumer can purchase relatively inexpensive “whitening” strips or toothpaste without ever seeing a dentist. On the other hand, a patient can make an appointment with any one of a large number of dentists who represent themselves as experts in cosmetic dentistry, and pay thousands of dollars for special procedures.

Cosmetic dentistry involves elective treatments to improve the appearance of the teeth. Patients should know that, at present, there is no specialty in “cosmetic dentistry” recognized by the American Dental Association (ADA). There are no standards, criteria or testing required before a dentist can say that he or she is a specialist in cosmetic dentistry. A prospective patient can be fooled into believing that her dentist has, in fact, passed some stringent qualifications set up by the ADA. A patient may mistakenly rely on a dentist’s representation as a specialist as an indicator of competency.

You should know that many dentists calling themselves experts in cosmetic dentistry have only completed a short course. Often, these courses are completed in a single weekend. Some programs last just a few hours, and are frequently sponsored by the manufacturers of equipment and supplies used in cosmetic procedures. The instructors at such courses may have only performed the procedures a few times themselves.

If you are eager to change the appearance of your mouth and smile, you must be aware of the limitations of dental procedures performed by a general dentist, as well as the cost and the risks. Teeth can be whitened using new and powerful bleaches under close supervision. Chipped and cracked teeth may be repaired with inlays, overlays and veneers. Some dentists replace the teeth structure with caps or crowns. Note that straightening teeth requires an ADA specialist known as an orthodontist, a practitioner who uses braces for straightening teeth.

What cannot be done in a dentist’s office is a procedure to change the boney structure of the mouth. There is a specialty in the field of dentistry known as oral maxillary facial surgery (OMFS). This ADA-recognized specialty requires the dentist to complete many years of postgraduate training at an accredited institution, and then pass a written certification exam. Such specialists are trained to perform major procedures involving the cutting, shearing, shaping and repositioning of facial bones. Only major surgery can correct such conditions as overbite and underbite, conditions considered unattractive or imperfect. Such surgeries are not without risks of complications.

Such complications may include serious infection, blood loss, nerve damage, and adverse reaction to anesthestics or painkilling medications. I will detail the consequences of dental procedures gone wrong in an upcoming article.

Another growing field in dentistry involves the insertion of implants. Today, more and more patients consider dental implants, which cannot be removed, to replace lost teeth, rather than traditional, removable dentures. Implants are small screw-like devices made of a metallic alloy. The metal screws replace the natural root structure of a tooth. The screws are placed surgically through the gum and into the bone of the jaw at the location of missing teeth. Artificial teeth are then attached to the top portion of the screw, protruding above the gum. These replacement teeth are known as prostheses or prosthetic teeth.

When placed properly by an experienced expert dentist, prosthetics and dental implants can be a wonderful way to replace missing teeth from the viewpoint of appearance and function. However, many dentists are now performing implant dentistry without the necessary training or experience. The best-trained and educated dentists in this critical area of dentistry are those specializing in oral surgery and periodontal dentistry (the treatment of diseases of the gums and bones of the mouth). There is also an ADA recognized specialty in dentistry known as prosthodontics, involving the actual design, fitting and creation of the new artificial tooth structure. Replacing missing teeth with implants requires planning and precision. In cases involving replacement of many teeth, the dentist performing the implant surgery should work closely with the prosthodontist in planning the best procedure to achieve a cosmetic and functional result.

If you are considering any of these procedures, you should always investigate the dentist you intend to use. A background check involves more than just relying on a dentist’s advertisement in the local newspaper or on a website. There are no “deals” when it comes to having dental procedures. The old saying “you get what you pay for” is as true for dentistry as it is for any other service. Request a written plan outlining the anticipated course of treatment, including the cost of what is proposed. Make sure that if your dentist is proposing a major procedure, he or she is board certified in the area of dentistry involved. Understand what is being offered, and ask questions. Know the time the entire process will take from the beginning to end, the risks involved and the other treatment that is available to achieve the results you are looking for. If you are thinking about major reconstruction, consider getting a second opinion.

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Category: Medical Malpractice, Personal Injury | No Comments »
Tags: medical malpractice attorney, medical malpractice lawyers, new york lawyers, new york medical malpractice lawyers, NYC medical malpractice, Personal Injury, personal injury law firms

Posted By Admin on July 6, 2010

A 72-year-old retired minister was walking down the sidewalk near Marcy Avenue in Brooklyn when he tripped and fell. The incident took place right at a spot where a subway grate sank two inches below the concrete of the sidewalk surface. As a result, the former minister fractured his right elbow, and required an operation to fix the fractures that involved the insertion of metal wires into his arm.

This is classic “municipal liability” case involving a government or public agency. Municipal liability cases are brought against such bodies as the City of New York, the New York City Housing Authority, and the New York City Transit Authority, among others. Remember, before suing a public agency, an injured person has to file a “notice of claim” with the proper authorities within 90 days of the accident. In this case, the injured party sued the City of New York and the New York City Transit Authority. His lawyers took care to file timely Notices of Claim against both entities before starting a lawsuit.

Often, the key to winning a municipal liability case is proving that the City or public agency was aware of the problem or defect, in advance of the incident, but failed to repair it.

In this instance, the subway gate was not only sunken into the pavement as a result of improper installation, but the City of New York had received prior written notice of the defect and failed to do anything to correct it! Both of those failures created the opportunity to sue the City and the Transit Authority. At trial, a Transit Authority employee testified that the agency inspected the grates every six months; however, the agency was unable to produce any record of these inspections in Court.

The defendants then tried the old tactic of blaming the victim, claiming that the minister was partially negligent for failing to watch where he was walking. This argument did not distract the jury. Evidence introduced by the plaintiff’s  municipal liability lawyer established that it was the Transit Authority’s responsibility to repair the defect. The jury found in favor of the minister.

It is important to understand that one of the reasons we have government agencies is make the city a safe place to live. We should be able to walk on our streets and sidewalks without risk of injury. The minister now has loss of motion, atrophy and numbness in the extremities of his hands. The injury interfered with his retirement years and his ability to enjoy his life, including some of his favorite hobbies such as bowling and playing the tambourine. Fortunately, he was compensated for his loss.

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Category: Municipal and Premises Liability | 1 Comment »
Tags: lawsuit, muncipal liability lawyers, new york, new york premise liability lawyers, ny muncipal liability, Personal Injury, premises injury liability cases