Table Saw Accidents are Preventable

            New York State provides protection for construction workers designed to force property owners and general contractors to require that job sites comply with basic safety standards.  For example, when using a table saw (a common construction site power tool) 12 NYCRR §23-1.12(2) specifically provides that every table saw “shall be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth.”  The provision further requires that “Every such saw shall be equipped with a cut-off switch within easy reach of the operator without leaving the operating position.” See, Jacobus v. Black & Decker (US) Inc., 8 A.D.3d 443, 778 N.Y.S.2d 300 (2d Dept. 2004).  A construction worker injured by an unguarded table saw blade can bring a lawsuit to recover for injuries sustained, pain and suffering, lost earnings and medical expenses.

            The problem is that a walk through most construction sites will reveal that table saw guards are rarely ever used (or even on the job site) with table saws.  The combination of cluttered, uneven work sites and the pressures of completing the job on time makes the unguarded table saw an accident waiting to happen.  The way the accident happens is simple and complex at the same time.  The table saw blade guard has a few main functions – the obvious one being the physical blade cover.  In addition, the guard assembly also helps prevent a “kick back” – where the wood binds on the spinning blade and is unexpectedly propelled back towards the operator.  This can occur because the natural tendency of wood when it is partially cut is to pinch together (grabbing the spinning blade).  The metal support that holds the guard in place helps prevent the wood from pinching the blade.  In addition, the guards are equipped with anti-kickback fingers.  These work like check valves that only allow the wood to travel in one direction – if the wood tries to come backward the device stops the wood.  These guards have been around for almost 100 years – relatively unchanged from the original design.

            In theory, this safety device sounds perfect and one would wonder why it is not universally used in the field.  However, most workers have never even seen the guard because the employers never install them on the table saws in the first place.  Employers find them to be clumsy and slow down the work.  Another option would be to use table saws equipped with Saw Stop technology.  This relatively recent invention uses electronic sensors to determine if the object touching the blade is wood or flesh then stops the spinning blade in a micro-second.  Now the worker would certainly get scared and probably receive some superficial injury – however it would be nothing compared with the life altering amputations that occur when the blade keeps spinning.  Unfortunately, table saws equipped with this technology are more expensive than traditional table saws. 

            Since the worker has no real ability to complain about unsafe work sites and equipment (for fear of losing the job) we will continue to see productive workers’ hands mangled by saw blades.  Most construction workers who are missing part of a hand will tell you that the ability to bring a lawsuit (with no guarantee of success) does not make up for the suffering they endure every day.

Homeowner Liability for Snow/Ice Removal

Even as the weather gets warm and this past winter's snow storms become a distant memory, we take a look at the individual homeowner's liability for snow/ice removal in New York City. Under New York City Administrative Code Section 7-210 the owner of the property adjacent to the sidewalk is responsible for dangerous/hazardous conditions on the sidewalk, except where the property is a 1-2 family residential home.  The public policy rationale is that we do not want to hold the owner of the family home responsible for maintaining the public sidewalk in a safe condition. 

However, where the homeowner makes the effort to remove snow and ice he/she must do so properly and can be held liable for negligent snow/ice removal.  In  Robles v. City of New York, 56 A.D.3d 647; 868 N.Y.S.2d 114 (2d. Dept. 2008) the Court reaffirmed that “in the absence of statute or ordinance, an owner or lessee of property abutting a public sidewalk may be held liable where it undertook snow removal efforts which made the naturally occurring condition more hazardous.”  More recently, in San Marco v. Village of Mount Kisco, 16 N.Y.3d 111 (2010), the plaintiff claimed he slipped on ice resulting from melting and refreezing of snow in a Village parking lot.  The Court of Appeals denied the motion for summary judgment; holding that “primarily, a jury must decide whether San Marco fell on ice created by the Village’s snow clearance operation.”

Although it does not make any sense to a logical person, if you bundle up to brave the elements and actually try to do the right thing you may end up being held liable.  However, if you do nothing and let your neighbors struggle past your house you may be able to avoid responsibility if they get injured.  Why we essentially “reward” the homeowner who does nothing is beyond me. 

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The Neurologically Impaired Infant Fund

Despite all of our efforts to convince the politicians in Albany, the Neurologically Impaired Infant Fund ("NIIF") passed and is now part of our legal landscape. We are still not sure of the details of the NIIF and there are more questions than answers at this point: how will this new system work; who will run the NIIF; can we appeal denials; what will happen if the fund runs out of money.

From what we can understand thus far, IF a case involving a brain damaged baby is successful at trial (meaning the parents still have to bring a lawsuit, litigate the case to completion and then win at trial and through the appeal process) the culpable party will not have to pay for the future medical expenses of that child. Instead, the family would be placed into the NIIF which would determine what medical treatment was necessary for the child over the course of his/her life. The problems with this framework are many. First, this procedure requires the parents/guardians to continually cut through red-tape to get medical treatment. While this may be acceptable for a financially stable family with educated parents who can perpetually fight the system there are fears that children in a single parent household (where the parent may be overwhelmed with the 24 hour care required of a brain damaged baby) will not be able to endure the process to obtain approval of necessary care. Second, who is going to administer the fund and how will these children appeal any adverse decisions is a significant issue. The NIIF will have limited funding when you consider the lifelong expense of providing care for a brain damaged child. The history of bureaucracy teaches us that in this situation there is a tendency to deny applications for medical care to save money. Again, this will disproportionately impact children in lower income/single parent homes.

The NIIF was a political chip to appease the hospitals who claim that the costs of caring for brain damaged babies caused by medical malpractice in their facilities will run them out of business.  However, these children and families certainly did not ask for this and to do anything that adds to their burden (and benefits the wrongdoers) is patently unfair.  We need to create a system that rewards hospitals through lower insurance premiums for exemplary care.  An incentive based program is the only way to improve both the patient care and the bottom line.

NYS Budget Proposal

It appears that New York State will have its first on-time budget in nearly 30 years (the last one coming when Mario Cuomo was Governor).  However, this was not without a fight that almost cost New Yorker's the right to seek fair compensation if they were victims of medical malpractice.  The proposal that was put forward by the hospital and insurance industry included a cap of $250,000 on pain & suffering awards and created a "fund" to assist in payment of medical costs for brain damaged babies.  The inherent problem with this proposal was that it did nothing to "fix" the problems with Medicaid.  In fact, when analyzed this plan would actually cost Medicaid more money.  First, when a person is successful in recovering money in a lawsuit he/she must repay any funds spent by Medicaid - thus the lawsuit is adding money back into the Medicaid system (this is a good thing). If there is no incentive to bring a lawsuit there is no repayment triggered.  Second, the plan disproportionately impacts the poor, elderly and children.  This is because you can still seek recovery for lost earnings under the MRT proposal.  That means a Wall Street Stockbroker can still recover a large award for lost earnings while a retiree, a child or someone who is unemployed gets nothing.  Third, the MRT plan seeks to insulate the wrongdoers from the most egregious errors instead of correcting the problems that lead to malpractice.  New York Presbyterian Hospital revamped their Obstetrics Department and made simple, logical changes to the way they treated patients.  This program resulted in a 99% drop in medical malpractice payments (from approximately $28M to only $250,000) over a 6 year span.  They were able to reduce their expense to almost nothing because they gave patients better care - not because they unfairly capped damages.