I remember it well.
It was just the other day.
I was trying a case.

In Nassau County here in New York.
It was a sledding accident case.
I represented the winter resort who was being sued for negligence.

This was early in my career.
I'm in practice now more than 30 years.
I was probably in practice for two years at that point.

The injured victim claimed he was injured while riding a flying saucer.
You know, one of those round, plastic discs that kids jump on to go down the hill when there's snow outside.
Except the injured victim wasn't a kid.

He was an adult.
A full-grown, full-size adult man.
He decided to jump on one of these pie-pan discs and go down a hill in the middle of the Poconos.

What do you think kids like so much about this flying saucer?

The fact that you can't steer the damn thing.
The fact that it spins around as you go down the hill.
The fact that you can only hold onto the strap handles for dear life and hope it gets you to the bottom of the hill without being thrown off.

Well, this full-sized man, riding a child's toy, got on.
He started going down the hill.
The flying saucer started to spin.

He was going downhill backwards.
He couldn't see a darn thing.
He couldn't control the thing either.

He just held on for the ride.
When he reached the bottom, something happened...

He hit something hard.
He flew off the flying saucer.
Turns out he fractured his tail bone; his coccyx.

He then sued the resort, saying the resort was responsible for his injury.
He never acknowledged that he shouldn't have been on this kid's toy.
He never acknowledged that he had no way to steer or control this plastic disc.

He simply pointed a finger at this winter resort and said "YOU! YOU'RE THE OWNER, YOU'RE RESPONSIBLE FOR MY DAMN INJURY!"

Well, not so fast, hotshot.
What the heck are you doing grabbing a children's toy sitting outside another person's hotel room?
Don't you know better?

What the heck are you doing going down a plastic dish, down a hill full of heavy snow?
What are you doing getting on a disc that's known to spin?
You're blaming us because of YOUR bad judgment for getting on this toy?

You're blaming us because this disc spun around and caused YOU to go down the hill backward?
You're blaming us because there was lots of snow on the ground and you didn't see the railroad tie surrounding plantings at the base of that hill?
Should we have put up signs all around the resort warning stupid guests they shouldn't be grabbing children's toys and sledding down a hill?

Should we plaster signs all across the resort so people like him could see them and ignore those signs and do stupid things anyway?

You notice the sarcasm here?

The injured victim sued the resort.
The resort owner was furious.
He couldn't believe this guy sued him.
This 'adult' caused his own injuries!

My client was never going to settle this case.
"We'll see you at trial," we said.

The case finally gets to trial.
My opponent was a well-known attorney.
He had achieved some remarkable results for injured victims in New York.

I was just a young, energetic and aggressive attorney who believed we had the better case.

I wanted the jury to see what this plastic toy was.
I wanted them to know how idiotic it was for this adult man to have grabbed this children's toy off a porch and sled down a hill.
The only problem was that he didn't have the flying saucer he used that day.
Nor did we have it.
We didn't even have a photograph of it.

But, we had a description of it.
The injured victim had described it in detail when I questioned him during his pre-trial question and answer session known as a deposition. He described the color, shape, size and weight.

That was perfect.
Because shortly before trial, I went into a Toys R Us and bought a flying saucer sled that was almost identical to what he described using. I was going to bring that into court and use it to cross-examine him. I was going to use it to show the jury how ridiculous it was for this man to use this child's toy and then accuse us, the resort, for HIS OWN NEGLIGENCE!

During my opening arguments I reached under the table and pulled out this flying saucer.
I held it up to the jury. 
I said "This is what this guy hopped on when he proceeded to go down this hill on that winter day."

The attorney representing the injured victim saw me holding up this flying saucer and went ballistic.
He jumped up from his seat, as if an ejection button had been pressed, and yelled out "OBJECTION JUDGE! That's not the flying saucer my client used!"

The judge agreed and told me to put the flying saucer away and not to use it again.
But the jury saw it.
They all knew what it was.

They knew what it was being I even took it out.
They all had been on one as kids.
I only had to describe it to them during my opening arguments and they knew.

This display was just to reinforce how ridiculous it was for this man to use this child's toy.

But I still wasn't satisfied.
I really wanted to confront the plaintiff (the injured victim) with this plastic dish and ridicule him for getting on this child's toy.
I did just that.

It was my turn to cross examine the plaintiff.
Now was my chance to show the jury that this guy's actions were unreasonable and ridiculous.
As I'm describing the flying saucer, he's explaining to the jury the dimensions of this disc.

He's merely repeating what he had told me a year earlier during his pretrial testimony.

I pull out the flying saucer again.
I hold it up in front of the jury.
I start to ask him a question about this flying saucer.

The plaintiff's attorney didn't see me pull the flying saucer out from under the table at first.
He was sitting in front of me and couldn't see me unless he turned around.
As I'm holding this flying saucer up for the jury to see, the plaintiff's attorney sees this in the corner of his eye.

That ejection button was once again pressed and he jumped up out of his seat yelling "OBJECTION JUDGE! YOU TOLD HIM HE COULDN'T SHOW THAT TO THE JURY!"

That was bad.
It's never good to be yelled at by the judge.
Especially in front of the jury.

I felt bad.
For a moment.
Then I realized I didn't feel that bad.

It was something I had to do.
I had to show the jury.
I had to make my point.

I incurred the judge's wrath.
For a good reason.
To make a point.

The jury was out a short time.
They never even got to question number two.
They stopped at question number one.

"Was the defendant negligent?"
The answer was a unanimous "No."

To hear the closing argument I made in this case, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer