New York Wrongful Death Lawyer Blog

According to the December 24, 2009, Democrat & Chronicle article "Tia Gerstner offers tearful apology in death of Joseph Mueller" Tia Gerstner, age 19, was being sentenced in New York State Supreme Court on her plea of guilty to second degree manslaughter, a felony for which she will serve six months in jail and probation following that for 5 years.

She told the sentencing judge that before she drove the car in which her 17 year old best friend, Joseph Mueller, was killed, she had consumed two 22-ounce beers and had smoked marijuana.

The March 28, 2009 crash happened when she lost control of the car she was driving at 2 a.m. in suburban Rochester, hit a tree, rolled and hit the front porch of a house.

As the driver of an automobile, Ms. Gerstner owed her passenger, Mr. Mueller, the duty of safe and prudent operation of the vehicle. Influenced by the consumption of beer and marijuana, she caused his death by her failure to safely operate the car. Judging from the facts, this is clearly a case of wrongful death. Mr. Mueller's family could sue both for loss of support [pecuniary damages], funeral and medical expense and perhaps for conscious pain and suffering.

Obviously, no amount of money can compensate a family of a deceased young person, Some families have used wrongful death suit proceeds to honor the memory of their child, for example, by endowing a scholorship fund in their name.

For a viable wrongful death suit, it is essential to show that someone ("the decedent") died, and that the death was caused by the wrongful conduct or default of the defendant, that the conduct or default, had the decedent survived, would have been a basis of a lawsuit which could have been brought by the decedent prior to his death, had he survived. A wrongful death action also requires that the decedent be survived by distributees [family members] who have suffered monetary loss by reason of the death, and that a personal representative of the decedent had been duly appointed.

A wrongful death case cannot be maintained without the appointment of a "personal representative" of the decedent, either by a Court of this state, or other jurisdiction. Dead people cannot practically nor legally bring suit. For this reason, most wrongful death cases in New York State begin, and end at the local Surrogate Court.

The appointment of a "personal representative" grants legal authority to the person appointed to start a lawsuit in the name of all of the distributees of the decedent. As part of the appointment process, notice must be sent to all of the distributees of the decedent that a petition has been filed by someone who will act in their behalf to bring an action for wrongful death.

At the end of a successful wrongful death case, the "personal representative" returns to the Surrogate Court to request permission to "compromise the case", and to distribute any money damages awarded after a trial or settlement to the distributees of the decedent.

A case in the news recently was particularly interesting because of the question raised about whether the wrongful death defendants owed a duty to the decedent.

In an article, Lawsuit to Allege LaBella Failed to Address Investigator's Violent Tendencies reported in Utica, NY, involved the murder-suicide of Joseph and Kristin Longo, a married couple who were divorcing. The husband was a Police Inspector for the City of Utica, who had been acting strangely and verbally aggressive. He was ordered by the police department that employed him to stay away from his wife. After he threatened to commit suicide with his service revolver, it was confiscated, and his work assignment was changed, so that he had only desk duty. He was offered counseling to help him cope with stress.

After he murdered his wife and committed suicide, a suit was brought
on behalf of the couple's four children, ages 9, 11, 15 and 17, against the City of Utica.

The claim is that the city, and its Police Department, failed to protect the wife/mother from her police officer/husband who was essentially out of control. It is interesting to note that part of the rationale for this claim is that the current Chief of Police was a partner and friend of Inv. Longo. Because of the personal relationship, between the two policemen, Chief Daniel LaBella had not acted properly as a disinterested, neutral, party and taken further steps to protect Inv. Longo's wife. Chief LaBella refuted this and called the crime "unpreventable".

Do the facts above present a sufficient connection for one to say that there was a "duty owed" by the City of Utica Police to Mrs. Longo?

Was there a breach of a duty owed to her, which caused or contributed to her death?

How would you find if you served as a juror in this matter?

Each wrongful death action must present the necessary elements as described in my blog of last December 22. In a 2006 case a Long Island court ruled that a lesbian could not continue a wrongful death case against the driver of an automobile which struck and killed her long-time partner.[Saegert v. Simonelli, 12 Misc.3d 1193(A)]

Recall that for a viable wrongful death case, among other things it must be shown that the decedent was survived by "distributees" who have suffered pecuniary loss by reason of the death, and that a personal representative of the decedent had been duly appointed.

In this case, the personal representative of the decedent was her partner, who was nominated in the decedent's will as Executor. As Executor, the woman brought a wrongful death suit against the driver of the car involved.

The defense brought a motion for "summary judgment", essentially a knock-out blow to the wrongful death case. The Court agreed with the defense theory that the Executor had "standing" to bring suit for wrongful death, although not in her own name because she was the "personal representative" but not a "distributee" as defined under New York State Law.

This ruling meant that the surviving partner could not recover pecuniary damages - especially loss of support - from the driver of the car which struck her partner.

On the other hand, the Court ruled that the defendant was not entitled to summary judgment on the "survival action" for pain and suffering which was also brought by the Executrix, as the estate is the beneficiary of damages awarded. The decedent appeared to have lived for about three hours after she was struck by the car. If she was conscious for some or all of the time before she dies, there might be money damages for her pain and suffering.

This case served to show again how same-sex couples are not given equal treatment under the law, and was useful to demonstrate the duality of legal actions available for death cases.

Question: What kinds of deaths are most often the subject of wrongful death claims?

Answer: Motor vehicle accidents, medical malpractice, hospital mistakes, consumer product failures, almost any activity of life where responsible action is required.

Question: What law authorizes wrongful death actions in New York State?

Answer:A cause of action for wrongful death in New York State is authorized by the New York State Estates, Powers and Trusts Law, sections 5-4.1 through 5-4.6.

Question: Who can bring suit for wrongful death?

Answer: The "personal representative", duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death.

Question: What is a personal representative?

Answer: A personal representative is a person who has been given authority by the court to administer the estate of a decedent.

Question: Who are "surviving distributees"?

Answer: New York State Estates, Powers and Trusts Law, section 1-2.5 defines distributee as a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution: typically a spouse and children; if neither survives the decedent, then the parents of the decedent, if no spouse, children, or parents, then brothers and sisters.

Question: Is there a time limitation for the initiation of a wrongful death case?

Answer: Sections 5-4.1(1) provides "Such an action must be commenced within two years after the decedent's death".

Comment: Different states have different laws regarding time limitations to bring a suit for wrongful death. Even New York State has circumstances under which the time limitation may differ from two years, for example, §5-4.1(2) states "whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative shall have at least one year from the termination of the criminal action... in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining."

Question: What damages are recoverable in a wrongful death action?

Answer: Fair and just compensation for the pecuniary injuries resulting from the decedent's death for the monetary loss suffered by the persons for whose benefit the action is brought. In addition to future earnings lost, other recoverable damages can include the reasonable expenses of medical aid, nursing and attention as a result of the injury causing death and the reasonable funeral expenses of the decedent paid or owed by the distributees.

Question:What is a survival action?

A survival action is a cause of action (legal right to sue) based upon personal injuries sustained by a plaintiff which survives the plaintiff's death. This is completely distinct from a cause of action for wrongful death under the statute, and is customarily brought at the same time as a wrongful death action.

The type of damages that can be recovered in a survival action are different, too. The plaintiff in a survival action may recover damages for the decedent's pain and suffering between the time of initial injury and his or her death. The recovery for conscious pain and suffering is awarded to the decedent's estate, which differs from wrongful death loss of earnings ("pecuniary" damages) which are paid to the surviving distributees of the decedent, for their own present and future loss of support from the decedent.

In short, a wrongful death lawsuit is typically initiated by the immediate family of an individual who dies because of the negligence or wrongful conduct of another person.
Money damages can include loss of future earnings, medical bills, funeral expense, and conscious pain and suffering.

What kinds of wrongful death matters has the blogging attorney handled in the past? Below is a list of the typical kinds of wrongful death matters previously litigated:

CAR CRASH: A college student returning home for the holidays, passenger in a car driven by a classmate who failed to yield to a speeding car, pulled out and was "T-boned" when entering the highway. The decedent survived for eight days in the hospital before expiring. The student's mother successfully sued both drivers for wrongful death, and used the proceeds to honor her daughters memory by sponsoring a nursing scholarship.

CAR CRASH: A young mother, joyriding in her husband's powerful Chevy Camaro, with three little girls (two her own) in the backseat, recklessly ran a stop sign on a county road and was struck by another vehicle. The three girls were killed. The mother went to prison. The father sued for wrongful death, and used the recovery to provide for the couple's other child.

HOSPITAL MISTAKE: A 44 year old man, a long time Eastman Kodak employee, hospitalized after injuring himself in a single vehicle motorcycle crash, was not monitored properly as his oxygen level dropped precipitously. A hospital employee looked at his "pulse ox" score and remarked that the finger monitors were "always failing" or words to that effect. The fact that he was suffering from massive internal bleeding was discovered after it was too late to save him. His wife successfully sued for wrongful death. His distributees included two teen-age children. Proceeds of settlement were used for their college education.

MEDICAL MALPRACTICE: A sixty year old retired man underwent surgery for cancer of the penis by a urologist. Following his post-operative aftercare, he received no follow up care or treatment (chemotherapy or radiation) for his cancer. When his cancer returned and spread into his lymph nodes, he was terminal. Although his adult children's economic damages were modest because he was retired, they received sums of money due to the pain and suffering he endured, including his knowledge that he was "terminal" long before he passed.

MEDICAL MALPRACTICE: A 48 year old man twice in the same day went to his internist, complaining of heartburn and saying that he felt "odd". The doctor gave him an EKG, and prescribed nitroglycerine tablets, but sent him home both times. That evening he died from a massive heart attack. The doctor settled, acknowledging that she should have sent the decedent to the hospital, having previously treated his father for heart disease, and knowing the family history. Since the decedent was earning hundreds of thousands of dollars annually, the settlement amount paid to his wife and daughters, aged 19 & 21, was in the millions of dollars.

If you are reading this wrongful death blog because you have lost a family member due to the wrongful act, neglect or default of someone, you are going through a difficult and confusing time.

There is no replacing your loss of love, companionship, plans, hopes and dreams.

There is a way to recover your economic loss, if for example, you have lost your "bread-winner".

You may also sue on behalf of your loved one for compensation for the pain and suffering that he or she endured between injury and death.

My hope is that the information contained in this blog will inform you of your rights, under certain circumstances, to bring a wrongful death claim and recover economically for your own loss and for the loss of your loved one's estate.