Summer 2003 Edition

Vol.8 – No.1

What’s New in Personal Injury Law?

Pet store liable for an “open and obvious” mess. A pet store customer was injured when she slipped on dog feces on the store floor. The Kentucky Court of Appeals ruled that she could sue the store for negligent failure to keep the store in a reasonably safe condition even though the mess was “open and obvious”. The store’s practice of allowing customers to bring their pets into the store gave rise to a higher duty of care to customers like the Plaintiff – who didn’t see the particular mess and had never seen such matter on the floor during her previous visits to the store. The court ruled that the Plaintiff’s duty to use reasonable care for her own safety did not require that she constantly look at the floor. It is totally reasonable for a customer to be perusing merchandise on shelves instead of focusing solely on the surface beneath her feet. The pet store’s duty to keep it’s premises in a reasonably safe condition, must be examined and evaluated in light of the special nature of the risk to customer safety inevitably created by the presence of animals. The store encouraged customers to bring their pets. Therefore, it should reasonably anticipate that customers shopping for pet supplies might not see the mess left by animals accompanying other patrons. In a Kentucky Supreme Court case, the Plaintiff claimed that she slipped and fell in a puddle of clear liquid in a department store aisle. The court held that the store has a burden of proving that it exercises reasonable care in maintaining the premises. The court noted that modern merchandising techniques employed by self-service retail stores are specifically designed to attract the customer’s attention to merchandise on the shelves and away from any hazards that might be on the floor. Under these circumstances, it is unreasonable to require the customer to prove how a foreign substance was caused to be on the floor and/or how long it had been there. The court cited similar decisions in Florida, Colorado, Maine and New Jersey. Tenant awarded $18 million for son’s fall from unguarded window. The tenant’s four-year-old son fell eleven floors to his death because of the St. Louis Housing Authority’s failure to replace the window guard specifically designed to prevent such falls. The jury verdict was $18 million – $800,000 against the city housing authority and the balance against the property management company. Window guards were installed in the tenant’s apartment in 1996, but eventually fell off because they were improperly installed. Thirty-three days before the fall, the tenant submitted a formal request asking management to install a child guard in her son’s bedroom. She made several subsequent verbal demands. There were actually one hundred window guards stored at the public housing complex. The management company’s contract with the city required a response within twenty-four hours of any emergency requests. Federal regulations defined “emergency” as any threat to life, health or safety. The tenant produced evidence that the housing authority and management company had been on notice for years that young children could easily fall out of unguarded windows. The issue first came to public attention in New York City in the late 1960’s. New York State passed a law requiring window guards in high rise apartments in 1976. The number of children dying from such falls dramatically dropped thereafter. The City of St. Louis was put on formal notice of the danger following highly publicized falls at public housing complexes in 1991 and 1992.

What’s New in Real Estate Law?

Disclosure form doesn’t make seller liable for fraud. Sellers who provided the buyers with the required Property Condition Disclosure Statement (PCDS) were not liable under the Property Condition Disclosure Act or under common law fraud because it was not proven at trial that they had actual knowledge of a defect in the premises. The sellers answered “unknown” to the question in the PCDS about rot or water damage to structures. The purchasers hired a home inspector to look at the structures. However, the inspection did not include an inground swimming pool that was mostly above ground. An adjustment was made in the purchase price because the pool deck was not in good condition. When the deck was removed after the closing, rot on the main supports and body of the pool were deemed so severe that if it was left untreated the pool would collapse. Debris under the deck obscured the rot. The Richmond County Civil Court judge found that the sellers did not have constructive knowledge of the condition. The existence of the rot was not easily discoverable upon reasonable observation. The evidence supported the sellers’ claim that they did not have actual knowledge of the condition of the pool because it was not visible before they filled out the PCDS. It was not clear that the rot was “patent”, that is, discoverable upon reasonable inspection by the sellers or the purchasers. The purchasers failed to prove that the sellers had actual or constructive knowledge due to prior work because no evidence was introduced regarding prior repairs. “Constructive knowledge” is knowledge that a reasonable seller should have known under the circumstances. The purchasers should have had the inspector inspect the swimming pool and should have requested that the swimming pool be added to the list of equipment covered under “mechanical systems” on the PCDS.

Sexual Orientation Discrimination Outlawed

The New York State Sexual Orientation Non Discrimination Act (SONDA) went into effect on January 16, 2003. It amended the Human Rights Law to add “sexual orientation” to the list of protected classes. It is illegal to discriminate on the basis of race, sex, creed, color, national origin, disability, age and marital status under the Human Rights Law. The Education Law and Civil Rights Law were similarly amended. “Sexual orientation” is defined as “heterosexuality, homosexuality, bisexuality or asexuality”, whether actual or perceived. The legislature recognized that many of New York State’s gay, lesbian and bisexual residents have encountered prejudice based on their sexual orientation and that this prejudice has severely limited or prevented access to employment, housing and other basic necessities of life. The legislature further recognized that prejudice has fostered a climate of hostility leading in some instances to physical violence against those perceived to be gay or lesbian. SONDA does not bar any religious organizations or affiliated charitable or educational organizations from limiting employment, admission, housing or sales in a manner determined by the organization to promote its religious purpose. The Act also does not impact on any laws that affect the right to marry. Federal law offers no protections against discrimination based on sexual orientation. Until the passage of SONDA, sexual orientation discrimination in the areas of employment, housing, credit, education and the provision of public service were not unlawful in New York State.

New .08% DWI BAC Limit

Effective July 1, 2003, the blood alcohol level a driver may have before being considered legally intoxicated was lowered from .10% to .08%. This date was moved up from November of 2003 to July so that New York State was ensured receipt of several million dollars in highways funds from the federal government. Details regarding the changes made to the Vehicle and Traffic Law to effectuate this lowered blood alcohol level can be found in the DWILINK Newsletter at www.legalsurvival.com/dwilink.

What’s New in Debtor/Creditor Law?

Transfer of home to spouse is not fraudulent. The transfer of a home to a spouse before starting a business is not always a fraudulent transfer. A husband loaned his wife $25,000 for her bakery business on the condition that he receive her interest in their home. The wife transferred the home to the husband by deed in May, 1999 and executed a note for a loan at 6% interest. The bakery opened in the summer of 1999. It ceased operation in the spring of 2001. The wife filed a Chapter 7 bankruptcy which included the $25,000 loan from her husband. The Chapter 7 Trustee filed an adversary proceeding against the couple to set aside the transfer of the wife’s interest in the home. The trustee claimed that the transfer was made wholly without consideration and with the intent to hinder, delay and defraud the bank that had loaned $115,000 to the wife. The New York Debtor and Creditor Law provides that “every conveyance made without fair consideration when the person making it is engaged or is about to engage in a business or transaction for which the property remaining in his hands after the conveyance is an unreasonably small capital, is fraudulent as to creditors and to other persons who become creditors during the continuance of such business or transaction without regard to his actual intent”. The U.S. Bankruptcy Court, Western District of New York ruled that the test of “unreasonably small capital” is “reasonable foreseeability, tested by an objective standard archored in projects of cash flow, sales, profit margins and net profits and losses”. While a company must be adequately capitalized, it does not need resources sufficient to withstand any and all setbacks. The judge determined that the transfer of the home to the husband did not leave the debtor with unreasonably small capital. Before starting the business, independent experts from SCORE, the State Business Development Commission and the bank, all found that the wife’s business plan and projections were reasonable and should be met with the capitalizations that she had, including the bank loan.

Landlord Seminar

“Landlord Legal Survival” will be presented by attorney/author Robert Friedman from 6:00 to 9:30 p.m. on Monday, October 27, 2003 at Clarence High School, 9625 Main Street, Clarence, New York. Mr. Friedman will discuss evictions, leases, Small Claims Court, discrimination laws, civil liability, insurance, security deposits, elderly tenants, drugs, debt collection and lead paint regulations. There is a registration and book fee. To register, call Clarence Community Education at (716) 759-0403.

Dignity for Injury Victims

Have you been hurt in an accident? Are you worried what this may mean to your family, your job, and your credit? Is the insurance company pressuring you? Are you beginning to feel a bit confused? Since 1955, the attorneys at Friedman & Ranzenhofer, PC, PC, P.C. have been helping injured people. You have a lot of choices to make. We can help you make the choices that will get you what you need quickly, honorably and with your dignity intact. We will help you to maximize your benefits, while protecting you and your family. If you have questions about your responsibilities, your legal remedies or just what the best thing is for you to do, call us at (716) 333-5144. Our initial conversation costs you nothing even if you choose not to have us represent you. We promise to:

• Communicate with you in plain language that is easy to understand.
• Promptly return your telephone calls.
• Quickly and thoroughly investigate and analyze your case.
• Have your case personally handled by an attorney.
• Keep you informed of the progress of your case at all times.
• Show you the personal care, concern and attention which has been the hallmark of Friedman & Ranzenhofer, PC, PC, P.C. since 1955.
• Accommodate the needs of you and your family during the handling of your case.
• Vigorously protect your legal rights.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, New York Trial Lawyers Association, New York State Trial Lawyers Association and Erie County Bar Association Negligence Committee.

Disclaimer

While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law – this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law – not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Legal Survival, LLC shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.