Philip M. Bernstein, Attorney at Law
1325 Franklin Ave., Suite 555
Garden City, New York 11530
Phone: (516) 222-0440
In a personal injury case, each party is responsible for the damage that he or she does. A personal injury case in New York generally consists of two separate trials. Before a jury can determine how much -if anything- to award to a plaintiff, it must first determine the percentage of each party’s own fault. This question is the purpose of the first of the two trials since the second trial for damages may not even be required if the entire blame for the accident is assigned to the plaintiff
Slip and fall cases are particularly treacherous when it comes to assigning fault. Most folks are able to negotiate a hazardous situation while remaining on their own two feet. Unless the danger is completely hidden or completely unavoidable, it is nearly impossible to establish that the defendant has complete responsibility for an injury. Damages are almost always reduced by a substantial percentage in such a case.
We are obligated to take precautions which will mitigate our damages should an accident occur. A good example of this is when one car crashes into the rear of a stopped automobile. Even though the occupants in the car which has been struck may suffer some injuries, the failure to wear a seatbelt will invariably cause injuries to be greatly magnified. It is rare for someone in such a situation to be ejected from a vehicle where a seatbelt is worn properly. In determining fault, a jury may find that even very serious injuries which may happen when an occupant is thrown through a windshield onto the pavement would not have happened if a seatbelt had been worn. This may deny the accident victim a recovery since his or her own negligence led to an injury inconsistent with seatbelt use.
The standard a jury uses in making these determinations is that of reasonableness. The central question is what reasonable persons of the same age and experience of the parties would do. Always seek the opinion of a competent attorney before deciding on any course of action after you have been injured in an accident.
Every Dog Gets One Bite
“Buster has always been such a nice dog” said the perplexed pet owner.” He would never attack anyone”.
Moments earlier, a furious neighbor had been seen running across the lawn with nice, peaceful Buster firmly attached to his left leg. One emergency room visit, a tetanus shot and twenty five stitches later, he appeared in my office in his torn chinos.
I then proceeded to add insult to injury. The problem is that Buster really had been a peaceful pooch. My client and his family had enjoyed playing with him on many occasions. His antisocial behavior was a surprise to everybody.
The law requires that a pet owner have notice that his animal has a vicious propensity to attack humans before being responsible for the damage that might result from such an attack. What is sometimes referred to as the “one bite rule” generally means that a dog’s first victim has no legal recourse against the dog’s owner since there was no reasonable way of anticipating the attack. Safe to say, my client was not happy to learn of this nuance in the law and that he did not have a case.
There are exceptions to this rule. Certain breeds such as pit bulls are believed to be inherently dangerous. Ownership of those canines imposes a higher duty of care towards others.
Even if that first unexpected attack allows an owner to escape being held liable for damages, it does have significant implications for pet and family. The victim of a dog bite may complain to the board of health. This usually results in an investigation which may lead to a trip to the dog pound. Where the attack has been serious –especially where a child has been involved—this may well turn out to be a one way trip since it is not unusual for the board to seek permission to destroy an animal it has determined to be dangerous.
There are also serious legal implications if the dog is allowed to remain with its family. Since the requirements of the “one bite rule” have now been satisfied, an owner may be liable for the damage his or her pet does in the future. A subsequent attack on a child or where an adult has suffered serious injury might even expose the pet owner to criminal responsibility if sufficient care has not been taken to protect the public from the dog.
There is also the potential for losing your homeowner’s insurance. Insurance companies would much rather pay you for what a burglar steals from your home then run the risk that your faithful watchdog will attack a child or eat the burglar. Once the dog has established itself as a true attack dog, few insurers will want any part of you.
The sad truth is that even where the one bite rule has saved you from liability after your dog has been involved in its first attack; it is probably a prudent decision to find the dog a new home where it will not be a danger to humans. Keep in mind that you have to be truthful when you put your dog up for adoption. Concealing a history of antisocial behavior with a cute fib that you need to find Buster a new home because you have suddenly become allergic to dogs will probably give you the opportunity to find out how allergic you are to lawsuits.
It is a truly sad event for a family who must say goodbye to a beloved dog after somebody has been attacked. You can do your best to keep this from happening by protecting your pet from the public. If there is an incident brought on by someone teasing and inciting your pet, it may not be possible for you to prove this since it is not likely that the victim will admit to being the cause of the trouble and your dog is unable to speak for itself. Keep your dog from running loose and make it more difficult for others to tease and incite a normally docile pet. Since your dog will often react instinctively to situations, it is up to you to be alert and to keep it in a safe environment.
Bernstein Philip M Attorney
Address: 1325 Franklin Ave., Ste. 555
Garden City, New York 11530
Phone: (516) 222-0440
Fax: (516) 222-2971
Affiliations & Certifications:
New York State bar Association
Nassau County Bar Association
New York Trial Lawyers Association
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