Sunday, July 7, 2013

Assembly Speaker Sheldon Silver Blocks Tort Reform For All The Wrong Reasons

Reckless $ilver hammer

Last Updated: 2:26 AM, July 7, 2013
Posted: 12:21 AM, July 7, 2013

It’s a case the city just can’t win — in Albany.
The city Law Department and taxpayer advocates have argued for years that statewide tort reform would save more than $100 million in government spending a year — but one legislator remains as both judge and jury
“The problem boils down to two words: Sheldon Silver,” sad American Tort Reform Association spokesman Darren McKinney.
“He is certainly the commander in chief of the [trial-lawyer] forces that are aligned solidly against any hint of civil-justice reforms,” McKinney added, “as they feather their own nests and perpetuate a racket that has been going on in New York state — the crumbling former Empire State — for far too long.”
It was revealed last week that Assembly Speaker Silver makes up to $450,000 annually as an “of counsel” lawyer to Weitz & Luxenberg, a personal-injury law firm that sues New York City on behalf of its clients. That’s twice as much as Silver’s salary for running the legislative body.
Last year, the city shelled out $506 million in litigant payouts.
The Law Department is inundated with 7,000 lawsuits a year, the majority of which deal with personal injuries, ranging from kids getting hurt in school to pedestrians slipping on sidewalks.
“We are brought into every lawsuit because we are a deep pocket,” Law Department Tort Chief Fay Leoussis told The Post.
The city has lobbied Albany for “many years” for a handful of common-sense reforms for civil-lawsuit litigation, or tort reform, Leoussis said, but the effort “hasn’t gone anyplace.”
With the following reforms, Leoussis said, the city could save millions:
A drunken driver racing at 90 mph on a city street hits a pothole, flipping his vehicle.
Shockingly, if the injured driver sues the city, taxpayers could get stuck with paying all of his economic damages — even if he’s 99 percent at fault and the pothole accounts for just 1 percent of the blame.
“We call those ‘1 percent cases,’ ” Leoussis explained, “because you could have 1 percent liability and have to pay 100 percent of the economic cost.”
The law has been changed in 42 states. In those states, the government pays only 1 percent of the damages if a defendant is only 1 percent liable.
“Not so in New York,” Leoussis said.
In the tragic Dec. 4, 2000, case of off-duty firefighter Derek Kuhland, a motorist going twice the speed limit struck him as he crossed Queens Boulevard at 55th Street.
The accident left Kuhland with a traumatic brain injury and quadriplegia. He sued the city and the driver, Roberto Lewis — who was speeding at 61 mph on the 30-mph road — for his permanent disabilities.
City attorneys argued that Kuhland crossed against the light, but Kuhland’s attorney said the city was to blame since it hadn’t conducted a traffic study on that portion of the road.
A 2008 jury decided that Kuhland was only 20 percent at fault — while Lewis was 30 percent at fault and the city 50 percent.
But “joint and several liability” was applied to damages in the case, the city said, leaving taxpayers to cough up Lewis’ portion as well.
The Law Department appealed. Though liability percentages were adjusted, however, the city decided to settle last year for $5.5 million instead of going to trial.
A construction worker who gets sloshed at lunch and then tumbles off of a scaffold is not at fault under current legal rules.
The 128-year-old “Scaffold Law” places 100 percent liability on the construction company and property owner — and never on the worker.
Experts say this law has led to soaring insurance costs in New York state.
Last month, Silver put the nail in a proposed reform that sought to allow courts to assign liability to hard-hat plaintiffs if they contribute to their own injuries.
The measure would have saved the city millions, said Tom Stebbins, director of the Lawsuit Reform Alliance of New York.
“The School Construction Authority estimates that it costs them an additional $75 million a year [in payouts to litigants] — enough to build one to two schools every year — just for the Scaffold Law,” Stebbins said.
“Think about how many teachers we could hire if we could save the School Construction Authority $75 million a year,” he added.
In one example of a multimillion “Scaffold Law” settlement, experienced bricklayer Lech Wlodkowski received $5.9 million for chronic back pain after he fell off a ladder during a 2009 SCA project in The Bronx, records show.
The city argued that he leaned the A-frame ladder up against the building, instead of locking it into its proper, safer position. But Wlodkowski’s attorney said he had no other way to access a window on the second floor.
The Law Department says payouts for “pain and suffering” are now “astronomical.”
Unlike medical bills that can be tallied up, Leoussis said, the awards are not easily quantifiable because they deal with issues like emotional impact and other gray areas.
Huge jury awards in this area are typically downsized at the appellate level. But Leoussis said the appellate division has also “sustained these multi-, multimillion awards for what we consider flimsy injuries.”
Serious injuries involving amputations or paraplegia can carry $12 million price tags, she said.
It makes litigating cases like that of Albert Somma — who crashed his bike on a drunken ride through Riverside Park in 2010 and was left a quadriplegic — a big gamble.
The city settled with Somma for $3 million last year.
“That’s a classic example of a case we settled because we had to buy out our risk,” Leoussis said.
Somma was riding his bike with a blood-alcohol level twice the legal limit, according to court papers, when he chose a dark, partially blocked path in the park instead of a well-lit, marked one that he was familiar with.
He collided with a concrete slab and fell head first. He sued the city for not cordoning off the dangerous path and for not posting warning signs.
“The risk was [an award of] $30 million,” Leoussis said.

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