New York Wrongful Death Lawyer Blog

The widower of Dawn Brancheau has retained a law firm specializing in wrongful death, to represent him against Sea World in a suit for damages relating to the fatal whale attack of February 24, 2010.

Tilikum, a 12,300 pound bull orca, pulled Ms. Brancheau into the water at Sea World by her pony tail, as she was lying prone on a water level platform, nose to nose with him. It took Sea World employees half an hour to recover her body from the pool, as the whale dragged her underwater and shook her body like a ragdoll. The autopsy said that she died by drowning or by blunt force trauma.

On two prior occasions, Tlilkum had been involved in fatal human incidents.

Ms. Brancheau was a 40-year-old trainer, with 16 years of experience at Sea World. One would expect that she was aware of the dangers of working with Tilikum, given her long experience of training and her tenure at Sea World.

Nevertheless, on August 23, 2010, OSHA (the US Department of Labor's Occupational Safety and Health Administration) fined Sea World $75,000 for three levels of safety violations: one "willful citation" (plain indifference or intentional disregard for employee safety or health), one "serious citation" (death or serious physical harm likely to result from a hazard about which the employer knew or should have known) and one "other-then-serious violation" (a situation that relates to job safety and health that would not likely cause death or serious physical harm).

An OSHA representative stated "All employers are obligated to assess potential risks to the safety and health of their employees and take actions to mitigate those risks... In facilities that house wild animals, employers need to assess the animals under their care and to minimize human-animal interaction if there is no safe way to reliably predict animal behavior under all conditions."

Not surprisingly, Sea World challenges OSHA's assessment of the situation, saying that the citations are "unsupported by any evidence or precedent and reflect a fundamental lack of understanding of the safety requirements associated with marine mammal care."

My sense is, despite whatever OSHA says, Ms. Brancheau died tragically doing something that she loved, despite knowing that it was dangerous.

The Los Angeles Times has reported that the commuter rail system and one of its former contractors (Connex) have made an offer of settlement in the crash that killed 25 people and injured over 135 others.

All personal injury and wrongful death suits involve two issues: liability and damages. Once liability has been established, and only if it has been determined, the question of damages becomes relevant. In this horrific case, liability is conceded as the NTSB determined that the accident was caused by a "contract" engineer who was texting on his cellphone at the time he ran the commuter train through a red light, crashing head-on into a freight train.

The settlement is being offered just before a trial for damages is to be held. The amount of the offer, $200 million, is the federal government's liability cap for passenger rail accidents.

The offer by Metrolink and Connex is clearly not enough money to "make whole" the persons injured and the families of those killed in the crash. It is offered by the defendants to bring victims and their families closure (and money) soon, rather than having to wait, possibly for years, for litigation to conclude. It also would shield the defendants from any additional liability

According to the article, a Congressman in whose district many of the victims resided, will introduce legislation to raise the federal cap.

All the plaintiffs need to be advised by their attorneys on what stands to be one of the costliest rail accidents in history. The path is not clear.

The Bureau of Land Management, which owns the Mojave Desert lands where the fatal road race occurred will investigate whether the race promoter kept its own safety rules in running the event which killed eight spectators.

The safety rules of the promoter, Mojave Desert Racing of El Monte, CA, specified that spectators must stay 100 feet from the track and racing vehicles.

The contract between Mojave Desert Racing and the Bureau of Land Management required the promoter to keep spectators 50 feet away from the racing vehicles.

Clearly, neither the promoter's rules, nor the contract terms were adhered to as many spectators closely lined portions of the race route through the desert.

As I said in my earlier entry on this sorry event,8 Dead in CA Desert Off-Road Truck Wreck the spectators assumed the risk of being proximate to the race course. When the course is 50 miles long, neither the race promoter, nor the land owner can be responsible for what spectators do. Any investigation, whether federal or by the California Highway Patrol, cannot escape that conclusion.

As mentioned before in this blog, 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.

I have e-mailed the Chief Clerks at each NY county Surrogate Court, requesting information on the number of filings for wrongful death for 2009. Twenty-six of sixty-two court clerk's have responded:

Lawyers for the families of the two young Hungarian tourists who died after the collision between the duck-boat and a garbage barge have filed suit in PA state court, against both the tour operator and the tugboat company.

Attorneys claim that the deaths were senseless and preventable. Punitive damages are being sought.

I would guess that punitive damages may apply in this case, given the many safety measures that appear to have been violated by both vessels:

• a non-working airhorn on the duck boat;
• attorneys charge that the dead were trapped in the boat by the canopy of the duck boat; an NTSB report on a 1999 duck boat accident said that canopies on the amphibious vessels were a safety threat and should be removed;
• no look-out posted on the barge (violation of statute);
• attorneys received an anonymous tip, that at the time of the collision, the tug's helmsman had turned the volume of the vessel's marine radio down so he could talk on his cell phone; the duck boat's distress message went unheard.

Perhaps criminal charges will be considered by authorities concerning the helmsmans' lack of concern for safety on the river.

As an update to my August 13, 2010, entry about the wrongful death of an autistic man who was left for hours in a locked minivan, on a record hot day, by care providers: residential counselor Stacey Strauss, 40, was charged last week with felony neglect of a care-dependent person, involuntary manslaughter, and recklessly endangering another person.

The facts of the Sean Bell wrongful death case are especially compelling. An unarmed Mr. Bell was gunned down on a street in Queens by police officers who unleashed a 50-shot barrage, on the day, in 2006, that Mr. Bell was to be married to Nicole Paultre. The case was settled at a pre-trial conference in late July.

A prior blog entry asked the question of how a fiancé, under NY law, could bring a wrongful death suit? The answer was revealed: although unmarried, the couple had produced a child, and the mother was appearing "in loco parentis" for the child.

Actually, Mr. Bell and his fiancé had two children together without benefit of marriage, and the kids will share the $3.25 million settlement, after the one-third contingency fee paid to their attorneys, when they turn 18 years of age. Ms. Paultre-Bell will receive nothing from the settlement under NY law, as unmarried, she had no legal expectation to the support of Mr. Bell. Her solace may be that she will not have to set aside college monies for the children.

Bad luck killed the eight spectators watching the annual "California 200" off-road race in the Mojave Desert on August 14. Almost all of the eight were in their twenties.

Off-road truck racing is a sport with dedicated spectators, who line the sand track through the empty desert scrub and outcroppings to watch drivers and machines go as fast as possible, all without safety barriers. Some intrepid spectators get as close as four feet from the path of the racing trucks.

In this instance, a competing truck hit a jump or series of bumps, and careened off-path and flipped into spectators lining the track.

It was reported that tens of thousands of people lined the 50-mile track. The spot where the accident occurred was called "the rockpile", popular because trucks often became airborne as they raced by.

When the truck involved stopped, it was resting on its roof, with people pinned underneath it.

To paraphrase a famous Justice Cardozo quote: "Nothing happened except what common experience tells us might happen at any time as a consequence of the sport..."

Assumed risk is probably not fully appreciated by off-road truck racing fans, given the seemingly low chance of accident. Obviously statistics do not matter at all if your friend or family member is the unlucky party to get hurt or killed.

Having written two wrongful death entries about persons dying of hypothermia, one a lost skier, the other a Buffalo woman whose utilities were shut off for non-payment, I now write an entry on death by hyperthermia, too much heat.

Human beings understand how unpleasant it is to be too hot. People are usually very concerned when they notice a child or pet left in a closed automobile in a sunny parking lot on a hot day.

A 20 year-old severely autistic man was left, on July 24, 2010 (the hottest day recorded for the year), in the rear seat of a van which had returned from a day's outing. The van was owned by Woods Services, a Langhorne, PA, facility that provides a variety of services for people with special needs.

The coroner opined "He was probably dead within an hour with those temperatures." The man was noticed as missing when a new shift arrived to work at 4 p.m.; he was found, lying on his back in the Kia Sidona, at 5:35.

When considering a wrongful death case, we look for a "wrongful act, neglect or default".

There surely was neglect in this poor man's care.

The Associated Press reported "NY Skier's Heirs File Claim Against Idaho Rescuers" that the Teton County Sheriff's Department, Teton County and Idaho Search and Rescue, with others, apparently were too slow in locating and retrieving a skier who had gotten lost outside the bounds of the resort where he was skiing.

These events happened last year to a 46 year old man, who while successful using his cell phone to call for help, eventually succumbed to hypothermia after being found.

As in any alleged sports or recreation wrongful death matter, one has to consider the defense of "assumed 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".

The plaintiffs claim that the resort's boundaries were not clearly or adequately marked, and that Idaho rescuers failed to communicate with Wyoming rescuers trying to locate the man.

Without knowing more, and because these matters are very "fact driven", I am skeptical about the viability of this suit [seeking $5 million].

The decedent went skiing (alone?) in a remote area. He strayed from the trail. Did he appreciate the risk of getting lost? He had a cell phone and was able to use it. We do not know if he was an experienced skier and if he was properly clothed and equipped for survival in the mountains and the weather.

Presumably all the rescuers did their best to reach him in time.

As a public policy issue, I would not be in favor of charging rescuers with liabillity unless their failure to perform properly was "grossly negligent".

Two young men and a young woman died when a car they were in slammed into a utility pole on a curve in the road, in Oakfield, Genesee County, early Saturday morning.

Police believe that speed and alcohol contributed to the single car accident. It was reported that investigators found beer bottles and beer tent tickets at the crash scene.

Matthew Ware, his friend Joshua Durham and Mr. Durham's girlfriend Allyson Galens, were all in their early 20's. Each of the three was very well regarded in the community.

It appears that Mr. Durham was driving at the time of the crash. Mr. Ware's family has said, publicly, that they "do not blame the driver" and "hope that people will learn a valuable lesson" from this tragedy.

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