New York Wrongful Death Lawyer Blog

On May 21, 2010, the Democrat & Chronicle reported Man pleads not guilty in fatal crash in March about Richard T. Woods, 29, who displayed signs of consciousness of guilt concerning the March 16, 2010, accident.

He apparently told police that he thought he had the right of way before he turned into the path of the oncoming motorcycle operated by Raymond Stevens, 38, of Rochester, at the intersection of Cleveland and Putnam Streets. Then Woods, who also admitted to police that he'd been drinking before the accident, drove away from the accident scene... although he had suffered minor injuries from the crash.

Mr. Woods would seem to be appropriately charged with first-degree vehicular manslaughter and driving while intoxicated, both felonies. I would add the charge of leaving the scene of a personal injury accident also.

A May 18, 2010, NY Daily News headline was confusing: Court date set for Sean Bell fiancee Nicole Paultre-Bell in wrongful death lawsuit How does a fiancee qualify to bring a wrongful death lawsuit under New York State law? A prior blog entry examined the requirements for becoming appointed as a "personal representative" in order to legally bring a wrongful death lawsuit, and clearly, fiancees have no special statutory right; either one is a spouse or one is not.

The facts of this man's death are especially compelling. An unarmed Mr. Bell and two other men were gunned down on a street in Queens by police officers who unleashed a 50-shot barrage, on the very day that Mr. Bell was to be married to Nicole Paultre.

If the wedding did not take place, the fiancee has no expectation that she would be supported by the decedent in the future, nor absent a will provision favoring her, have any rights to the decedent's estate. How does Nicole Paultre rate?

The answer is that the couple had a baby.

Ms. Paultre sued in her representative capacity as parent on behalf of her child, who is a distributee of Mr. Bell, would expect to rely on his support in the future, and also share in his estate.

Plaintiff lawyers are eager to conference the case on the July, 2010, date set by the federal judge, recalling the multi-million dollar settlements of police torture victim Abner Louima and unarmed shooting victim Ousmane Zongo.

In February, 2010, the United States Court of Appeals for the Fifth Circuit affirmed the lower court decision in Davis, et. al. v. USA which held that governmental immunity barred suit for a death that occurred during Hurricane Katrina rescue operations.

During the storm, a married couple escaped flood waters by climbing onto an elevated highway in New Orleans. A U.S. Navy helicopter offered to pick the stranded couple up, and Mrs. Davis was put into a "rescue strop", to be raised by winch approximately 40 feet to the hovering copter. During the lift, the hoist operator noticed that her arms had become free and she was sinking into the rescue strop. While personnel attempted to secure her from the helicopter, she fell back onto the highway. Soon after her fall she was raised in a "rescue basket" by a Coast Guard helicopter. The injuries from her fall during the Navy's rescue attempt resulted in her death.

Mr. Davis filed suit in U.S. District Court, alleging wrongful death, negligence and battery, under the Federal Tort Claims Act and the Louisiana Civil Code. The Government responded that the immunity provisions of the Federal Tort Claims Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act barred suit.

The appellate report of this case did not go into detail, however, it is clear that the suit alleged that the "rescue strop", used by the Navy, was not as safe or suitable for the purpose of hoisting a person into a hovering helicopter, as the "rescue basket" used by the Coast Guard.

The United States can only be sued with Congressional consent. Both US statutes named above preclude governmental liability for any claim based upon the exercise or performance of, or the failure to exercise or perform, a "discretionary function or duty" on the part of a federal agency.

In part, the Fifth Circuit held that because of the emergency situation left by Hurricane Katrina, the failed rescue of Mrs. Davis involved the exercise of discretion as to the means and timing of the attempted extraction.

Suit was accordingly barred by sovereign immunity.

A wrongful death inquiry was received recently from someone who was told that an autopsy had been done on his relative, who died unexpectedly while in the hospital, and that the death was "not natural".

What did that mean?

From an excellent article, How Autopsies Work, I learned that there are two kinds of autopsies, forensic and clinical. While both determine a cause of death, the forensic type is done as part of a police investigation, [think "CSI"], while the clinical type is done for research or study purposes, for example, follows the course or progression of disease. The forensic autopsy is often necessary for proving a wrongful death case, by determining the manner of death.

Manner of death findings available through a forensic autopsy are that the death was natural, was a homocide, a suicide, an accident, or remains undetermined. These findings are legally defined and admissible in court.

The manner of death is a crucial component of a wrongful death case, as the plaintiff has the burden of proving a wrongful act, neglect or default on the part of a defendant, which caused the death of the decedent.

Had the autopsy mentioned above revealed a "natural" process, such as a disease, the pathologist would have ruled that way. That leaves four possible manners of death while in the hospital: homicide, suicide, accidental or undetermined? We will need to see the official autopsy to learn if the manner of death was determined, and if there may be a viable wrongful death case against a defendant who caused the death.