New York Wrongful Death Lawyer Blog

Saint Peter, and accident investigators, would ask the two men, ages 28 and 39, what they were doing at the time of their deaths, in a GMC Yukon, on Saturday, June 26, at 4:30 a.m., flipped upside down, and six feet off the ground, when they hit a building located in northeast Rochester and caught fire?

According to the Democrat & Chronicle article, responder Fire Chief John Kearney declared that "it was obvious the vehicle had been traveling at a high speed".

Barring a Toyota-type equipment failure, it would appear that the speed involved a voluntary "wrongful act, neglect or default" on the part of the driver. Typically passengers in automobile fatality cases, whether single or multiple vehicle crashes, are not responsible for the result, unless somehow they hinder, hamper or prevent the driver's ability to control the vehicle.

Passengers killed while riding in vehicles driven by others have strong wrongful death liability cases.

In April, 2007, the Appellate Division, Fourth Department, ruled in the case of Donna Fordham-Coleman v. National Fuel Gas Distribution Corporation, on several issues appealed, including the timeliness of suit, as related to the date of death.

Velma Arlene Fordham, age 58, froze to death because her apartment's gas service had been cut off during a major lake-effect snowstorm in Buffalo, NY. Her body was found on February 19, 2001. The Plaintiff commenced suit on February 18, 2003, apparently in compliance with EPTL 5-4.1[1], a wrongful death cause of "action must be commenced within two years after the decedent's death".

Defendant National Fuel moved for summary judgment dismissing the wrongful death cause of action as time barred, because their expert concluded, based on data concerning the temperatures in February, 2001, and evidence that Velma Fordham had last been seen alive in January, 2001, that her death had occurred two to three weeks prior to the date her body was discovered on February 19, 2001.

The Erie County Chief Medical Examiner testified at deposition that he could not determine an approximate date of death, but it was long enough for her to start to undergo decompositional changes on the date she was found.

The Supreme Court granted National Fuel's summary judgment on the wrongful death cause of action.

Relying on the death certificate, the Appellate Division reversed the lower court, ruling that National Fuel had not met its burden of establishing as a matter of law that the limitations period had run.

Plaintiff commenced suit within two years of the decedent's death as set forth on the death certificate (by one day...). "A certified copy of the record of a death shall be prima facie evidence in all courts and places of the facts therein stated" (Public Health Law §4103[3]). The death certificate unequivocally and unqualifiedly lists the date of death as '02/19/2001.' There was no indication that the notation 'Found' above the time listed as the time of death refers to the date of death."

In other words, a smart defense attorney figured out that it was likely that suit was NOT commenced within two years of the date of death. The Appellate Division was going the allow "the trier of the facts", a jury, make the decision on that issue.

What happened here was that Plaintiff's attorneys should have commenced suit long before this issue could be raised. Failing to meet statute of limitations is an oft litigated subject in tort matters. In this case, to be the safe side, suit should have been begun in late December, as Velma had been seen alive in January.

Whatever the reason for not starting suit sooner, a time, resource and money consuming trip to the Appellate Division was the result. Plaintiff is still not clear of this issue: a jury would still need to be convinced about the date of death...

And the suit that was begun in February, 2003, was still not near resolution by April, 2007.

What if your husband, a pilot, crashed in his single-engine plane, crawled from the wreckage, and though badly injured, activated an emergency signal that worked for six hours, giving US air traffic controllers an idea of where the crash site was.

What if rescuers did not arrive on site until two days later, finding your spouse dead, a final note to you scrawled on an envelope found near his body.

What if the National Transportation Safety Board [NTSB] wrote the Federal Aviation Administration [FAA] a letter requesting that it tighten its procedures for reporting lost aircraft and quickly getting radar data to the Air Force, as reported in the New York Times article "F.A.A. Hears Distress Calls. How Well It Responds Is Another Matter..."? This case was one of five lost plane cases contained in the letter.

The failure of timely response to the plane crash was caused by miscommunication, a lack of trained personnel, old equipment, and other problems, mostly bureaucratic. In this case, the NTSB blamed the FAA, who pointed a finger at the Air Force Rescue Coordination Center in Florida, then back again.

The pilot's daughter admitted that it was unclear whether her father could have been saved by a quicker rescue response, however, she did want it known that mistakes were made in his case, and it should have been handled differently.

Under these circumstances, could a successful wrongful death case be waged against the US government for the slow rescue response?

Very unlikely. Michael Barr, an expert cited in the NYT article opined: "What the FAA has done is they've accepted the current risk that people won't be found." I believe that their governmental function or duty in cases such as these is "discretionary", and therefore exempt from claims.

I first read this case in law school. It shows the difficulty of successfully suing the US government for tort liability, including wrongful death.

Brown v. US is a 1986 US Court of Appeals, 1st Circuit, case . The facts are compelling: on Friday, November 21, 1980, at noon, the fishing vessels Sea Fever and Fairwind, left their home port of Hyannis, MA, bound for Georges Bank to lobster. Before leaving port, and on their day's journey to the fishing ground, as was their custom, they listened to their radio receivers which broadcast the National Weather Service marine weather predictions. Friday's 11 am, 5 pm and 11 pm broadcasts all predicted good weather. The boats arrived at Georges Bank early Saturday morning, where, starting with the 5:00 a.m. broadcast, the weather report carried a gale warning.

The fishermen out on the water already knew that the weather was worsening. The northwest winds and seas were running at heights far above those mentioned on the broadcasts of good weather. Because of the wind's direction, the boats could not turn back to port. The winds and seas continued to rise.

The Fairwind "pitchpoled" and sank, carrying three sailors to their deaths. One crewman onboard the Sea Fever was swept overboard.

The families of the dead fishermen sued the US, citing negligence in not earlier predicting the storm's path. Their specific claim was that the National Meteorological Center failed to repair or replace a sporadically malfunctioning weather-reporting buoy located on Georges Bank. Plaintiff's expert testified that an important component in predicting the future weather on Georges Bank would be an accurate report of the current conditions. Had the NMC received the current conditions, it would have predicted the path of the storm in time to warn the fishing vessels to return to home port.

A US judge, hearing the case without a jury, pursuant to the Suits in Admiralty Act, awarded the fishermen's families damages. The US appealed the decision.

In its decision, the Court of Appeals reviewed some of the legal history of the FTCA, and stated that "the area of government acceptance of liability on account of government functions has presented difficult questions".

The appellate court found the logic of the lower court's decision as straightforward: the US government established the service of weather reports for the benefit of fishermen, among others; the fishermen relied on the reports when they decided to leave port to go to Georges Bank; the US knew that fishermen relied on the reports, the US induced the fisherman's reliance; having induced reliance, the US owed an obligation to the fishermen to use due care.

The Court of Appeals then overturned the award, finding that the government "did not make an affirmative misstatement of fact, that an operating buoy was currently providing wind data from that location". Furthermore, the government did not create the weather, it merely failed, to render adequate performance on a "discretionary undertaking".

Clearly, on reading the decision, the Appeals Court was very conscious that an affirmance of this case, could vastly expand governmental tort liability. "Every service that the government offers is presumably intended to benefit some class or classes of persons; ergo, they use it; ergo they relied on it; ergo the government induced reliance; ergo the government owed a duty of due care. On this basis, the only parties to whom the discretionary exception would apply would be who? Non-users?"

The facts of this case would test the empathy of the most hardened jurist. To me, the fishermans reliance on the government's "good weather" broadcast was justified, and ultimately fatal.

The Federal Tort Claims Act [FTCA] is a statute enacted by the U.S. Congress, which partially waives "sovereign immunity".

Under 28 U.S.C.§1346(b), government liability is limited to "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred". However, the FTCA exempts claims based upon the performance, or failure to perform, a "discretionary function or duty".

There has been much litigation over the difficulty parsing the words "discretionary function or duty". What is discretionary? Several blog entries will follow this one, and partially describe the tortured legal history of "discretionary function or duty".

Punitive damages may be awarded in a variety of legal causes, including wrongful death cases. The purpose of punitive damages is to punish the defendant, and to deter repetition of the same conduct.

Under New York law, punitive damages may be awarded where a defendant's conduct, even though unintentional is "grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others", as contained in the Court of Appeals case Home Insurance Company v. American Home Products Corp., decided in 1990.

A recent wrongful death blog entry Fatal Gunshot to Head: Part 2 - $7M Punitive Damages Award Reduced , mentioned a jury award of punitive damages being adjusted by an appeals court, where a policeman's gun went off, killing a man unintentionally, but where the jury found the force used "excessive" and his conduct to be "wanton, reckless or malicious".

A 2007 appeals case, Guariglia v. Price Chopper and Schady, serves as another illustration of wrongful death and punitive damages. Apparently Mr. Schady worked as a pharmacist at Price Chopper, a NY grocer. He pled guilty to the criminally negligent homicide of his girlfriend's two-year-old child because he left a vial containing valium and cocaine unsecured and within easy reach of the child, who found it, ate it and died from it.

A court awarded the plaintiff, the child's father, $750,000.00 and the appeals court affirmed the amount.

Not only was the defendant convicted of a felony for his indifference to human life (as he admitted during his plea allocution to his awareness that if ingested by a child the contents of the vial would probably be lethal), but was punished civilly for it.

The appeals court noted that although the defendant had surrendered his NY pharmacy license, he was still continuing to practice pharmacy in New Jersey.

As mentioned in Part 1 of this blog entry, both sides of the case appealed certain aspects of the jury award, and what the trial court did with it, pursuant to post-trial motions.

The City of New York appealed the amount of punitive damages awarded: $7 million. The punitive damages were based on a finding by the jury that Officer Rivera employed "excessive force", and his conduct during the fatal encounter was "wanton, reckless or malicious".

The Appellate Division, First Department, in reducing the amount to $2.7 m. said "When reviewing a punitive damage award for excessiveness, we must examine whether it deviated materially from what is considered reasonable compensation [CPLR 5501(c)]".

The appeals court ruled, in reducing the jury's figure, that an award of $2.7 m. would be "reasonably related to the harm done, and the flagrancy of the conduct".

The appeals court also ruled that the lower court erred in reducing the jury's award for past economic support, and reinstated the jury award from trial.

So, via the civil appellate process, the plaintiff had confirmed its loss of the "conscious pain and suffering" jury award of $3 million; had reinstated the jury award for past economic support; and had its punitive damage award reduced by $4.3 million.

It appears that the appeal taken by the Corporation Counsel, on behalf of the defendant New York City, was financially worthwhile to the defendant.

In May, 2010, the Appellate Division, First Department, declared that the trial court properly set aside a jury award for $3 million for conscious pain and suffering of the decedent in a wrongful death matter.

The facts of the case, Ferguson v. City of New York, are not spelled out in the appeal, however, it is clear that a man was fatally shot in the head, by accident, by Officer Rivera, whose conduct "was in complete disregard of police procedure".

Both sides of the case appealed certain aspects of the jury award, and/or what the trial court did with it, pursuant to post-trial motions.

The trial court struck the $3 m. award for "conscious pain and suffering" because plaintiff failed to show the decedent's consciousness for at least some period of time following the accident. Case law was cited which supported the trial court's ruling: "Plaintiff failed to present any evidence that the decedent was conscious or had any cognitive awareness after he was shot in the head, which caused his nearly instantaneous death"; "A record that shows practically instantaneous death will not support an award for conscious pain and suffering".

The plaintiff's attorneys clearly tried to preserve the award, however, neither the trial court nor the appellate bench agreed with the arguments made: "Plaintiff's conjecture, surmise and speculation that the decedent was consciously suffering is not enough to sustain the claim" and there was no evidence which showed that the decedent experienced fear of impending death when the officer first grabbed him. "There was no evidence that the decedent was aware that Rivera had drawn his weapon, or that the gun was only inches from his head before he was shot".