New York Wrongful Death Lawyer Blog

Elizabeth Shin, an MIT student, committed suicide by self-immolation in her dorm room in April, 2000. For years, MIT had a reputation of being a challenging educational environment for students, with a higher incidence of suicide than average for college students.

Shin's parents sued the school for wrongful death, alleging that it had failed their daughter in the delivery of mental health services rendered to her.

Their $27.65 million case settled out of court, and has had a long lasting effect on the relationship between students and their colleges. It is now recognized that schools have a duty to aid and protect their students who require help in dealing with college life.

Suicide is the second leading cause of death among college students, after accidents. Parents of suicidal students are often surprised to find out that college administrators, faculty or other personnel were aware of mental health issues with their children. Colleges have not been open to disclose mental health or substance abuse issues of their students because of privacy laws. Because of the difficulty in dealing with such problem students, many colleges choose to suspend or dismiss them. The failure of colleges to help their students with such mental health issues may result in serious liability to the schools.

In 2005, a Massachusetts court, ruling on summary judgment motions made by MIT defendants [pre-settlement], decided that college administrations and their students have a "special relationship", imposing on the school the duty to exercise reasonable care to protect their students from harm. As the school's administrators were "well aware of Elizabeth's mental problems at MIT" for a period of 18 months or so, the school was was under a duty to exercise reasonable care to protect her from harm. The administration was not proactive enough in the face her escalating problem.

It is very likely that this ruling settled the legal action.

Unfortunately, campus suicides have been increasing over the past three decades. The Center for Disease Control and Prevention estimates that 1,350 college students commit suicide annually.

College administrators must confront the problem student before it is too late to help. While young people have a right to privacy, and a responsibility to self-care, college communities, health care providers and parents alike share the burden of early reporting, detection or intervention for those who show signs of mental health or substance abuse problems.

Knowledge of a student experiencing a mental health (or substance abuse) problem, may result in the imposition of a "duty" on the college to protect the student from harm.

APNewsBreak reported a wrongful death settlement reached between the parents of a sophomore coed and Dartmouth College relating to a ski lesson the young woman was required to take as part of her college curriculum.

During her lesson, in February, 2004, she was left alone on a difficult ski trail at the ski slope. She was not wearing a helmet. She skied off a ledge, and died from her injuries.

Her parents sued for negligence and wrongful death.

Some of my recent posts have discussed "assumption of the risk" for those who participate in sports, such as the Georgian luge racer at the Olympics, and the snowboarder at Bristol Mountain, both of whom died from injuries they sustained.

Although this article does not specify so, it would appear that the unfortunate coed was not familiar with skiing or the risks inherent in the sport. Awareness of the risk or danger must be assessed against the background, skill and experience of the participant. She was left alone on a ski slope without supervision and without safety protection that some would call essential, especially to a newcomer to the sport, who forseeably could easily lose control of her speed on skis, or her direction, or both.

Dartmouth College had a duty to train and supervise its student when it required her to take the ski lesson. It had a duty to explain to her the risks inherent in the sport, and safety procedures she would employ if she skied too fast or lost directional control. It also had a duty to properly outfit her with safety equipment to prevent injury: boots, bindings that release skis when stressed in the wrong direction, poles, and helmet to prevent head injury.

Dartmouth denied responsibility for the death, calling it "tragic".

The settlement amount is confidential.

The Democrat & Chronicle reported on February 23, 2010, that a Rochester man was killed while vacationing in the British Virgin Islands, when the bus he was riding in hit an embankment, left the road and overturned.

Aaron Humphrey, 24, was going to a hike and beach excursion organized by Princess Cruises.

As a passenger, Mr. Humphrey would not have participated in the negligence, whatever it may have been, that led to the crash and his wrongful death.

Since he was killed on foreign soil, on an excursion organized by a cruise line of unknown corporate registration, on a tour bus owned and/or operated by an unknown entity, driven by who knows who, his distributees, if any, will have to sort out potentially thorny jurisdictional issues in order to properly bring suit to recover for his death.

AP reported that a woman died Sunday, February 21, 2010, at a NHRA Arizona Nationals drag race in Chandler, AZ, when a tire came loose from a dragster that went out of control and crashed.

Recent posts have centered on the "assumption of the risk" by participants in sports. What about the spectators at sporting events? Are they taken, under the law, to have assumed the risk of spectating? If one attends a hockey game, does one assume the risk of being struck by a puck? How about baseball? Some foul balls are line-drives into the stands along the first and third base lines. If one attends a golf match, does one assume the risk of being struck by an errant golf shot?

The answer is "Yes", New York Courts long ago considered these issues. The famous quote of Judge Cardozo from the "Flopper" amusement ride case is: "The timorous should stay at home...".

"One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball" (Murphy v Steeplechase Amusement Co., NY Court of Appeals (1929).

Query, does a spectator at a NHRA drag race appreciate or accept the danger that she could be injured by a tire or other piece of a dragster that came loose and airborne? Is a loose tire becoming a volatile projectile a forseeable event? How often does that occur? Should the owner/operator of the facility have erected barriers to protect race patrons? Where in the facility was this unfortunate woman when she was struck by the tire?

It appears that this matter, should it be pursued, will be "fact driven".

According to an article Elliott Eklund, 48, of Penfield dies in snowboarding crash on Bristol Mountain by Victoria E. Freile in the Democrat & Chronicle on February 18, 2010, Elliott Eklund, age 48, of Penfield, died while snowboarding at Bristol Mountain when he collided with a tree. No witness to the accident, which happened in a novice area of the slope, is known.

Mr. Eklund, a season pass holder at Bristol, was not wearing a helmet. The cause of death was a massive skull fracture.

This unfortunate accidental fatality contrasts with my last post "Olympic Luge Fatality: Assumed Risk of Wrongful Death?". In this case, the accident occurred in a novice area of the facility, not on a high tech, super steep and "intense" track, built for speed.
From the article, there does not appear to be any failure to anticipate a dangerous condition to snowboarders using the Bristol facility.

The appellate cases cited in the prior post about the luge track reflect New York's policy regarding assumption of risk: a participant, such as Mr. Eklund, "engaging in a sport or recreational activity" such as snowboarding, "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation".

Skiing and snowboarding both involve "falling down-hill". Each sport requires that participants control their own direction and speed. While the towers which support the chair lifts on each slope are always marked and usually padded to protect skiers, it is not possible for a ski facility to pad, or even fence, all the trees along ski slopes. Trees are a "commonly appreciated risk" which are inherent in and arise out of downhill skiing or snowboarding.

As a season pass holder, Mr. Eklund assumed the risks of falling, and of being on a mountain where the slopes or trails are defined by trees. He must have also been aware that ski helmets have become essential safety wear for those sports. Nobody failed or neglected their duty to him. Tragically, he assumed the risk of snowboarding.

The civilized world was saddened to learn of the accidental death, during a practice run, of Olympic luge participant Nodar Kumaritashvili.

I have not watched the video of Kumaritashvili flying into a support pillar that held a canopy and lights on the track. The pillar was not padded in case a luge, bobsled or skeleton racer was thrown off course.

The Whistler Sliding Center opened in 2008. The facility was marketed as "faster, steeper and more intense than any track in history". According to many media sources, there have been numerous sled crashes since the facility opened, including some during the Olympic warm ups.

Was this a wrongful death, or had the athlete assumed the risk of this dangerous sport?

An argument can be made that the failure to pad a pillar when it was entirely foreseeable that a luge, bobsled or skeleton racer might leave the track at a high rate of speed was negligent, particularly on this track, where accidents were commonplace.

On the other hand, applying New York law in this instance, pursuant to the doctrine of primary assumption of risk, a participant "engaging in a sport or recreational activity... consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Turcotte v Fell, 68 NY2d 432, 438-440 [1986]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958-959 [2008]).

Is anyone at fault for this man's death?

Was the track designed to be too fast, too steep or too intense?
Was the track operated as too dangerous to sledders?
Should the pillars adjacent to the track have been padded?
Would padding on the pillars have made a difference in this case?
Did the sledders assume the commonly appreciated risks of their sport on this track?
Was the risk involved on this track more than what was "commonly appreciated"?

Given the history of accidents on this track, this fatal one cannot be dismissed as a "fluke" occurrence; some degree of responsibility needs to be assigned to the party or parties involved.

In 2008, the family of a woman who was crushed when a ceiling collapsed in a Big Dig tunnel in July, 2006, settled their wrongful death suit against 15 defendants for $28 million.

Since then, other deadly issues have arisen, including the design of the pedestrian railings that stretch over six miles of the Big Dig system. These railings are a 32" concrete "Jersey barrier" topped with vertical supports that reach upward to a horizontal hand railing. A wrongful death suit, scheduled for trial in September, 2010, alleges design flaws in three respects: the vertical members of the railings are too widely spaced; they have sharp, rather than rounded, edges; and they are placed at a height which is approximately the same as a motorcyclist's seat or car window.

Seven motorists and one passenger have been killed, when they struck these style railings. The sharp edges of the railing, set at the height of the car window or motorcyclists' seat, grab onto the unfortunate person who comes into contact with them. This contact very often gruesomely dismembers and kills them.

If the design of the pedestrian railings included a higher "Jersey barrier", and or rounded corners on the horizontal members, it is alleged that a motorist or motorcyclist who struck the barrier would slide along it, rather than being caught by sharp edges. Some decedents have been traumatically removed from their vehicles by the railing.

It is not surprising that while plaintiffs allege a design flaw through their expert witnesses, the defendants have their own experts who deny any flaw and maintain that the railings were installed according to safety rules and regulations.

While it has been noted that some of these fatal accidents have been caused at least in part by motorist speeding, and often happen in curved roadway areas of the Big Dig, it seems intuitive that the railings were not designed to protect motorists using those areas of the project. For safety sake, the concrete "Jersey barrier" should be increased in height.

An unfortunate teenager who was placed at Chad Youth Enhancement Center in Tennesee died in June, 2007, following an incident where two guards used an improper choke hold on him.

The incident, characterized by plaintiff's attorney as a "brutal attack", happened in full view of a surveillance camera. Although the coroner ruled the death a homicide, the local grand jury refused to indict the two Chad employees.

Suit was initiated in US Federal Court, by the teen's mother.

How does a teenager's life warrant a $10.5 million settlement? In terms of money damages for those who might have counted on him for support in the future, his work life had not even begun. He was placed in juvenile detention for stealing a car and violating his probation through marijuana use. At this early stage in his life, his earning potential was uncertain and unpromising.

The dollar figure settled on must have been for his pain and suffering just before death. Under New York law, when the interval of time between injury and death is short, the factors to be considered include the victim's degree of consciousness, the severity and duration of pain and the apprehension of impending death.

Asphyxiation and the struggle to breathe cannot be anything other than horrible, however, the figure agreed to seems excessive to me.

Since the case was settled by agreement of the parties, the sum will not be appealed, it will be paid.

Disappointment turned deadly at the University of Alabama Huntsville campus, during a biology faculty meeting on Saturday, February 13, 2010, when Amy Bishop, Ph.D. opened fire. While her motive for the shooting is unclear, it is thought that she was angry at not being granted tenure by the University.

She killed the chairman of the biology department and two other faculty members. Three others were wounded.

Since the horrific event, much has been learned about Ms. Bishop, and people want to know how she managed to be hired by UAH.

It is reported that she shot and killed her brother in 1986. At the time the shooting was called "accidental", and she was not formally charged. Recent reviews of the police investigation that followed show a failure on the investigating authorities part.

In 1993, she was questioned by authorities about an unexploded pipe bomb a colleague received.

Wrongful death lawsuits on behalf of the distributees of the three faculty members killed are certain to follow. All three were married and had children. Each family has suffered a huge pecuniary (money) loss. The faculty members were highly educated, highly productive, and well paid. Each may also have had private business and consulting interests based on their expertise.

Potential defendants include Ms. Bishop and the University of Alabama. In the usual case, criminals responsible for wrongful death seldom have assets to pay successful plaintiffs (remember O.J. Simpson); however, Ms. Bishop reportedly had had some success in developing products and raising funds to market them.

The University's responsibility may be for hiring Amy Bishop without vetting her properly. Had it done so, the anomalies in Ms. Bishop's life may have been discovered before she acted murderously.

As mentioned before in the entry Necessary Elements of Pleading in New York Wrongful Death Action, for a wrongful death action to be properly initiated, a personal representative needs to be duly appointed for the decedent's distributees.

In New York State, the Surrogate Court is the court that handles such appointments.

According to a "reliable source" in 2009 the following counties had these numbers of wrongful death personal representative appointments:

Cayuga 16
Livingston 27
Monroe 88
Ontario 16
Seneca 6
Steuben 58
Wayne 18
Yates 3

The remaining 54 or so NY counties will be surveyed and blog reported in the near future.

Once a "personal representative" has been appointed by the Surrogate's Court, the wrongful death action is brought in other courts, most often New York State Supreme Court, or US District Court.

It is legally permissible that a "personal representative" be appointed in a jurisdiction other than New York, before suit is brought in New York.

As reported by the Democrat & Chronicle [February 7, 2010], Pablo Nieves was cited for running a red signal at Crittenden and West Henrietta Roads, causing a collision with a car in which Zhofa Pan, 54, a Chinese citizen, was a passenger. Mr. Pan died at Strong Hospital.

If the circumstances are as cited by the Brighton Police Department and reported by the D&C, this would be a clear case of wrongful death, suffered by Mr. Pan. As a passenger in a vehicle which was in a crash, it is highly probable that he did not participate in causing the resulting collision.

As detailed in a past blog, the elements of a viable wrongful death suit are that someone died [Mr. Pan], and that the death was caused by the wrongful conduct or default of the defendant [Mr. Nieves: alleged to have run a red signal causing a collision], which conduct or default, had the decedent survived, would have been a cause of action which could have been maintained, at the moment of death by the decedent [Mr. Pan's personal injury].

From the article mentioned, one can not determine if Mr. Pan was survived by distributees who have suffered pecuniary loss by reason of his death, another requirement of wrongful death suit.

The last issue of standing to initiate suit for wrongful death is that a personal representative be appointed for Mr. Pan's survivors. Although getting a personal representative appointed for a Chinese national may be problematical given geographical distance, legal and cultural differences, a two year statute of limitations would apply in this matter.

Owners of Toyota automobiles are well advised to check with their dealership or mechanic to see if their model of Toyota manufactured automobile is one that has been involved in the recent spate of acceleration problems.

Drivers of certain model Toyota's have reported that the vehicle has suddenly begun to accelerate out of control, resulting in serious, and sometimes fatal crashes.

Toyota has issued recalls for millions of motor vehicles to install safer equipment to combat the problem.

There are a number of lawsuits brought for injury and death caused by this particular problem.

Before the release of the official autopsy report on actor Brittany Murphy, her husband has leveled accusations against Warner Brothers that they are responsible for her death.

Producer Simon Monjack, apparently distraught at the unexpected tragic death of his wife at age 32, is quoted by TheDailyBeast.com as threatening suit for wrongful death due to breach of contract, saying "They killed her... She was devastated.", at the loss of employment.

According to the show Access Hollywood, a Warner Brothers representative promised to vigorously contest Monjack's accusations: "Any claim that Warners Bros. Pictures was somehow responsible for Brittany Murphy's tragic death is demonstrably false, reprehensible and defamatory."

One would wonder if Mr. Monjack had consulted with a wrongful death attorney prior to making his accusations. He claims that she dies due to a heart attack. The autopsy report will necessarily report whether medications that were found in their home, [some prescribed to her, some to him, some to her mother, and some to various third party names] were ingested by her.

Various medications can interact with each other, with harmful results. Other recent celebrity cases involving the use of drugs include Anna Nicole Smith and Michael Jackson.

In the meantime, Mr. Monjack has likely made some powerful enemies at WB. Not knowing the actual cause of his wife's death, he would have been better advised to wait on the autopsy. No matter what, breach of contract, even if shown, will not be recognized as a legal cause of death.