New York Wrongful Death Lawyer Blog

According to the New York Post article Tree-limb snap kills baby in Central Park, a tree branch fell on a mother holding her child, posing for a photo, at about 1:30 p.m. on a windless day at the Central Park Zoo, on June 27, 2010.

The branch, reported to be 18 inches in diameter and four feet long, was thought to have fallen from a height of 25 feet. Horrified witnesses heard a creaking sound and then the sound of the branch landing. The 6 month old baby was killed and the mother severely injured.

It is unclear if anyone is responsible for this accident, unfortunately not the first of its kind in Central Park.

Contrast the facts from another Central Park tree fall fatality on February 25, 2010. A man walking home after his shift working as a busboy was struck by a decayed American elm, which had been identified in December, 2009, as dangerous ("Priority 1 Immediate Attention"), by the Central Park Conservancy, manager of the Park property. The scheduled removal of the tree on January 13, 2010, did not occur. The snow fall in late February put added stress on its limbs. . .

New York courts have ruled on a variety of cases involving fallen trees and branches. It has been said: "A property owner will be held liable only if he or she knew or should have known of the dangerous condition of the tree". The Court of Appeals, New York State's top court has ruled on the issue, affirming a lower court that "it is established that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree" Ivancic v. Olmstead (1985).

A 1977 Court of Appeals case held: "Constructive notice may be imputed to the property owner if the record establishes that a reasonable inspection would have revealed the dangerous condition of the tree" Harris v. Village of E. Hills.

It should be clear from the above that NY "tree fall" cases, like most premises liability matters, are fact driven. When did the owner know, should have known, or could have known by reasonable inspection, about a dangerous condition on the property?

A suit based on the June 27 tree fall fatality will depend on whether facts are unearthed showing knowledge of a dangerous condition on the part of the Central Park Conservancy. It seems clear from the reports that the Conservancy knew of the danger related to the elm tree which killed the busboy in February. A wrongful death suit has been commenced in Brooklyn Supreme Court

As mentioned in the most recent entry about the Ducks/barge collision, on Friday, July 9, a team of eleven National Transportation Safety Board investigators began their investigation into the accident.

From interviewing the duck-vessel's captain, the NTSB learned that he had tried to send a radio distress signal to the tugboat, and also that he had a non-working airhorn onboard, useless to warn river traffic.

The NTSB also spoke with the duck-vessel's deckhand and 16 survivors, before turning to focus on the captain and crew of the tug boat.

Many questions could be posed to them: Was the tug's radio tuned to the ship-to-ship channel, and the emergency channel? Was anyone on the tug monitoring the radio? Was the tug using its radar? Was the river "choppy", causing clutter on the tug's radar and making it difficult to see small boat traffic on the radar screen? How wide was the channel? How much small boat traffic is common on the Delaware River at Philadelphia-Camden?

Where were the tug's crew members stationed at the time of the accident? Because of the tugs position by the barge, pushing it from one side or "hip", was there a significant blind spot? Was the view up-river unobstructed? Was there a lookout on either the tug or the barge?

Inland Navigation Rule 5 ("Rule 5"), 33 U.S.C. §2005, requires vessels to post a proper lookout. Answers to the above questions will help the NTSB decide if a proper lookout was posted.

Clearly, one or both parties did not behave in a prudent and careful manner, or this collision, sinking and deaths would not have occurred. It will be up to the NTSB to assess fault and report on this matter.

An empty, unmanned and unmotorized barge being pushed by a tugboat on the Delaware River, struck and sank a popular tourist vehicle in Philadelphia last Wednesday, July 7.

The Ride the Ducks amphibious vehicle, occupied by 35 passengers and two crew members, rolled over and sank in 40 feet of water, spurring a frantic rescue by eye-witnesses both in boats and on shore. The Ride the Ducks vehicle had experienced mechanical problems, was disabled without power, anchored on the river, and waiting for assistance, when struck.

All occupants on the Duck were plucked from the river, except for two young tourists from Hungary, who still have not been found.

Ride the Ducks is a Georgia corporation, which has about 90 vessels in several cities. It has operated in Philadelphia since 2003, where it currently has 15 vehicles.

The barge involved was city-owned. It was being pushed upriver by a private tug company, K-Sea Transportation Partner LLC, which owns the tug boat. K-Sea is headquartered in East Brunswick, NJ. The company said that the tug's crew of five all had proper Coast Guard licenses.

Being amphibious, "hybrid" vehicles, the Ducks are subject to a variety of local, state and federal laws and regulations. They are regulated as a business operation by the City of Philadelphia. They are subject to the motor vehicle laws of Pennsylvania while on streets and highways. Afloat, the Coast Guard regulates the Ducks, mostly by conducting inspections for safety compliance.

This tragedy will be investigated by the National Transportation Safety Board.

My guess is that there was no forward lookout stationed on the barge at the time of the collision, and that the tug's forward view was impaired by the barge, riding "high", as it was empty.

As mentioned in previous blog entries, passengers who are killed while riding in motor vehicles almost always have strong wrongful death claims, as they could not have participated in the "wrongful act, neglect or default" that caused their demise. This would apply to the two dead students in this case.

The U.S. Federal District Court is likely the best jurisdiction to bring suit for wrongful death on behalf of the two young decedents from Hungary, should settlement negotiations not prove to be fruitful.

At the outset, I had no idea of internet interest in the topic "wrongful death", but I did know that many survivors lives are unfortunately altered by a "wrongful act, neglect or default" that takes a family member from them.

In six months, my blog has recorded over 1,700 "views".

Eighty percent of this blog viewers "arrive" via search engines, 10% are "direct traffic" and the remaining 10% are referred from other sites.

Eighty-eight percent of these views were recorded in the US. Although people in all 50 states have visited the blog, New York (778), California (146), Massachusetts (69), Florida (52), Pennsylvania (42), New Jersey, Texas and Ohio (30+ each) were most heard from.

Other than the "home" or title page, I was interested in which blog entry topics received the most views. Surprisingly to me, the most viewed entry over six months was MIT & the Suicide of Elizabeth Shin (April, 2000). I do not know if that is so because "MIT" is such an internet draw, or suicide... The second most viewed entry was Hempstead Woman Killed By High Teen Driver: Kayla Gerdes about a woman who was killed while mowing her front lawn. The third most visited entry was Rochester Area Man Falls to Death at Construction Site. Fourth in number of views was Bristol Mountain Snowboard Fatality: Assumed Risk or Wrongful Death?, and then Olympic Luge Fatality: Assumed Risk or Wrongful Death? .

Finally, after all these entires, the next popular views were law practice questions: Necessary Elements of Pleading in New York Wrongful Death Action and Q&A for Potential New York Wrongful Death Lawsuit Plaintiffs.

Although death is always a serious matter, I have tried to include some "curiosity" entries, like Mom of Teen Killed By Filing Cabinet Sues Doctor an unfortunate girl pinned between a filing cabinet and a car, or Wrongful Death by Poligrip Denture Cream? (zinc poisoning), or Man on Beach Struck & Killed by Airplane: Bad Luck or Wrongful Death? , or the seemingly frivolous Cause of Death: I.R.S. Raid? or a host of others (pick your own!).

I have also purposely avoided some of the more outrageous "celebrity" wrongful death cases: Anna Nicole Smith, Michael Jackson, Notorious BIG, and the woman who allegedly was "outed" by Nancy Grace before she committed suicide.

Thanks for reading!