New York Wrongful Death Lawyer Blog

The family of a Texas man has filed suit in the U.S. District Court in San Antonio, claiming that he died in June, 2010, as a result of ingesting celery contaminated by listeria.

The suit is brought against Sangar Fresh Cut Produce LLC, alleging death by infection caused by Sangar's failure to follow proper food safety regulations and guidelines. Last October, the Texas Health Department, found "an immediate and serious threat to human life or health" at the Sanger plant, ordered it to shut down and recall all products it had shipped since January, 2010.

This listeria outbreak killed at least five people. This type of food poisoning is especially worrisome for children and the elderly, as the infection can spread from the intestines to the blood stream and nervous system. Although it can be treated with antibiotics, the fatality rate for those infected is about 25%.

The lawsuit is based on an alleged breach of implied warranty, by providing food that was not fit to eat.

In an unusual case, the shirtless and shoeless body of a young man was found on a street in Milton, MA, a suburb of Boston, on November 15, 2010. He had suffered major trauma, particularly to his head. There was no identification on the body.

Within five or six days, however, the youngster's identification was confirmed by fingerprints as 16 year-old Delvonte Tisdale, of Charlotte, NC.

It is believed that Tisdale got past security at the Charlotte airport, under cover of darkness, and stowed away in the wheel well of US Air Flight 1776. When the plane lowered its wheels for landing in Boston, Tisdale fell thousands of feet to his death.

Today it was reported that Tisdale's family has hired a wrongful death attorney. The claim is that airport security in Charlotte was not "up to par". According to Fox 25/My Fox Boston, Family of boy who fell to his death from plane hires lawyer "the attorney blames airport security for the boy's death".

I am not willing to blame airport security for the young man's death. His action in secreting himself in the wheel well is unexplained, bizarre, and not foreseeable as a risk that security had a duty to prevent. Personal responsibility for actions is key. It's tragic and sad, but morally and legally correct.

On January 17, 2011, the widow of the man who drunkenly intruded into the wrong house in suburban Buffalo during early morning hours and was shot dead, withdrew her suit against the homeowner.

The suit, filed earlier this month, was dropped after "careful consideration".

My guess is that the plaintiff-widow read some of the comments posted following the news reports of her bringing suit. As mentioned in yesterday's entry, the vast majority of comments favored the homeowner, and questioned the deceased's own responsibility for what happened, given his voluntary intoxication and mistake in entering the wrong house as the cause of his own demise.

I think that "social media", through some 200 reader comments on the WGRZ.com site alone, may have become a barometer of society's reaction to the suit, and convinced the widow that her cause would not be favored by a jury.

At 1:30 a.m. on March 28, 2010, a drunk 31 year-old elementary school teacher from Albany, NY, intruded into the wrong house on the street where he was staying, and was shot to death by the homeowner, after failing to heed warnings and instructions to leave.

The tragic incident was presented to the Erie County Grand Jury, and it declined to charge the homeowner, David D'Amico, with any crime.

New York Penal Law §35.20(3) authorizes a person to use deadly physical force against another person if he or she reasonably believes that such force is necessary to prevent or terminate a burglary of his or her home.

In its deliberations, the Grand Jury would examine whether a potential defendant had a reasonable belief that deadly force was necessary to prevent or terminate a burglary, and that inquiry would employ a "reasonableness standard" which has both objective and subjective elements (see People v Wesley, 76 NY2d 555, 559; People v Goetz, 68 NY2d 96, 112).

As the Court said in Wesley: "The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude".

Recently, the widow of David Park has brought suit for wrongful death against Mr. D'Amico. According to WGRZ.com, "Widow Sues Homeowner in Amherst Shooting", the lawsuit alleges that D'Amico was "malicious" and acted "without just cause". Was there a death caused by a "wrongful act, neglect, or default", sufficient to satisfy the requirements of the wrongful death statute?

The homeowner/defendant's reasonable beliefs and actions under the circumstances have already been examined by a Grand Jury.

It is unlikely that a civil jury will find differently.

***In response to the WGRZ.com story, there are in excess of 200 comments posted, the vast majority favoring the homeowner. Many pointed out Mr. Park's voluntary intoxication and mistake in entering the wrong house as the cause of his own demise.

In Seaton v. County of Suffolk, decided late last November, a New York appeals court ruled that a baby born after his father died was a proper wrongful death plaintiff under state law.

In an unusual case, a man impregnated his girlfriend several weeks before he was killed leaving a house just as it was being raided by police. An officer tripped over a root, bumped into another officer, and one of the three shots fired by mistake hit Jose Colon in the head.

Just prior to his death, Mr. Colon had been told that he was going to be a father, and he had announced publicly that he intended on "being there" for the baby. Later a genetic marker test showed a 99.99% likelihood that he was the father of the child born.

Similar to the Sean Bell case, the mother of the baby, as his representative, joined with Mr. Colon's mother to bring a wrongful death case against the police.
In this case, the defense moved to dismiss the suit on behalf of the baby, saying that he was not a "proper distributee" under EPTL 4-1.2, as he had not been born when his father died, and therefore could not suffer any "pecuniary" (money) loss.

The Appellate Division court ruled that EPTL 4-1.2 provided "[a] non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his parental kindred, if paternity has been established by clear and convincing evidence...{and} the father openly and notoriously acknowledged the child as his own."

The court found that the posthumous genetic marker test was clear and convincing evidence of paternity, and that an affidavit of witnesses to Mr. Colon's acknowledgment of the child as his satisfied the other requirement to inheritance for a non-marital child. Both required elements of proof were satisfied.

The Court also noted that since this case arose, the law had changed, and state law currently would recognize either of the requirements as proof for a non-marital child to inherit from his father under the above statute.

The tragic death of Tyler Clementi, a freshman at Rutgers, made headlines world-wide last September, when he leaped from the George Washington Bridge, shortly after his roommate and another student used a webcam in a dorm room to "livestream" a video of a tryst involving Clementi and another man.

In accordance with New Jersey law, Clementi's family has preserved their right to sue Rutgers for wrongful death, primarily by giving the university timely notice that they may take legal action in the future.

In a notice, Clementi's family says Rutgers "failed to act, failed to put in place and/or failed to implement, and enforce policies and practices that would have prevented or deterred such acts", referring to the gross invasion of Clementi's privacy by students using the university-supplied internet connection, technology and/or equipment.

The truly responsible parties are Clementi's roommate and the other student participating in the gross invasion of his privacy. Like Clementi, they were 18 year-old freshmen at Rutgers. Both have reportedly left the university following his death. Both are charged with criminal invasion of privacy.

In my opinion, both are guilty of "felony poor judgment", "felony cruelty to another human being" and "felony infliction of emotional distress, causing death". While I am sure that no such crimes exist in the New Jersey Penal Code, I am also certain that their thoughtless and cruel actions will be with each for the rest of their lives.

Realistically, Rutgers did not fail Mr. Clementi as a student. The school could not anticipate that its internet system purchased, designed and installed for the use and benefit of the university community would be used in this manner and cause a death of a student. In my opinion, the responsible students' behavior demonstrates a depraved indifference to Tyler Clementi's life.

Rutgers has denied liability, saying: "We at the university share the family's sense of loss of their son, who was a member of our community... We also recognize that a grieving family may question whether someone or some institution could somehow have responsibility for their son's death... While the university understands this reaction, the university is not responsible for Tyler Clementi's suicide".

I agree.