New York Wrongful Death Lawyer Blog

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.

WORD

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.

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.

Considering the reported facts Kayla Gerdes, Drugged Up Teen, Mows Over Woman Mowing Lawn, Say NY Police, if there is any satisfaction for the family of Rebecca Twine-Wright, it may only be had through the criminal justice system.

Ms. Twine-Wright was mowing her Hempstead, NY, lawn this last Tuesday afternoon when she was struck by an out of control construction van driven by an 18 year old, unlicensed driver, Kayla Gerdes. Ms. Gerdes was allegedly high on painkillers as the van careened out of control, went over the lawn, hit the woman and crashed into the house.

The teen was taken into custody at the scene. She begged to be "left alone", saying "it was an accident", a "mistake". She was charged with vehicular manslaughter and other charges relating to the crash. These charges are in addition to others she faces for stealing jewelry from her mother's home to support her drug habit.

It was reported that Ms. Gerdes did not complete a drug rehab program because the insurance would not cover the full 28-day treatment program.

If true, Ms. Gerdes DUI operation of the motor vehicle involved was a "wrongful act, neglect or default" sufficient to support a wrongful death claim. It is also clear that the wrongful, criminal, act caused the woman's death. The Twine-Wright family includes at least one adult son, so it is apparent that a "personal representative" is available to be appointed to bring suit.

However, looking at potential defendants, one would ask if any are capable of paying damages for wrongful death, pain and suffering. Ms. Gerdes, 18 years old, is likely on her way to prison; her ability to pay damages is nil. Her boyfriend may be culpable for allowing the drugged up teen to operate the construction van. The construction company that owns or leases the construction van would claim that it did not give Gerdes permission to drive; also that the use of it was outside the scope of the boyfriend's employment. The liability insurer for the van will disclaim coverage. The insurance company that refused to pay for Ms. Gerdes to complete the 28-day rehab program probably can not be held responsible for causing Ms. Twine-Wright's death.

Thus, there may be no-one available to pay damages for the wrongful death of Ms. Twine-Wright.

She is another innocent casualty of drug abuse.

The Democrat & Chronicle reported on February 23, 2010, that a Rochester man was killed while vacationing in the British Virgin Islands, when the bus he was riding in hit an embankment, left the road and overturned.

Aaron Humphrey, 24, was going to a hike and beach excursion organized by Princess Cruises.

As a passenger, Mr. Humphrey would not have participated in the negligence, whatever it may have been, that led to the crash and his wrongful death.

Since he was killed on foreign soil, on an excursion organized by a cruise line of unknown corporate registration, on a tour bus owned and/or operated by an unknown entity, driven by who knows who, his distributees, if any, will have to sort out potentially thorny jurisdictional issues in order to properly bring suit to recover for his death.

AP reported that a woman died Sunday, February 21, 2010, at a NHRA Arizona Nationals drag race in Chandler, AZ, when a tire came loose from a dragster that went out of control and crashed.

Recent posts have centered on the "assumption of the risk" by participants in sports. What about the spectators at sporting events? Are they taken, under the law, to have assumed the risk of spectating? If one attends a hockey game, does one assume the risk of being struck by a puck? How about baseball? Some foul balls are line-drives into the stands along the first and third base lines. If one attends a golf match, does one assume the risk of being struck by an errant golf shot?

The answer is "Yes", New York Courts long ago considered these issues. The famous quote of Judge Cardozo from the "Flopper" amusement ride case is: "The timorous should stay at home...".

"One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball" (Murphy v Steeplechase Amusement Co., NY Court of Appeals (1929).

Query, does a spectator at a NHRA drag race appreciate or accept the danger that she could be injured by a tire or other piece of a dragster that came loose and airborne? Is a loose tire becoming a volatile projectile a forseeable event? How often does that occur? Should the owner/operator of the facility have erected barriers to protect race patrons? Where in the facility was this unfortunate woman when she was struck by the tire?

It appears that this matter, should it be pursued, will be "fact driven".

In 2008, the family of a woman who was crushed when a ceiling collapsed in a Big Dig tunnel in July, 2006, settled their wrongful death suit against 15 defendants for $28 million.

Since then, other deadly issues have arisen, including the design of the pedestrian railings that stretch over six miles of the Big Dig system. These railings are a 32" concrete "Jersey barrier" topped with vertical supports that reach upward to a horizontal hand railing. A wrongful death suit, scheduled for trial in September, 2010, alleges design flaws in three respects: the vertical members of the railings are too widely spaced; they have sharp, rather than rounded, edges; and they are placed at a height which is approximately the same as a motorcyclist's seat or car window.

Seven motorists and one passenger have been killed, when they struck these style railings. The sharp edges of the railing, set at the height of the car window or motorcyclists' seat, grab onto the unfortunate person who comes into contact with them. This contact very often gruesomely dismembers and kills them.

If the design of the pedestrian railings included a higher "Jersey barrier", and or rounded corners on the horizontal members, it is alleged that a motorist or motorcyclist who struck the barrier would slide along it, rather than being caught by sharp edges. Some decedents have been traumatically removed from their vehicles by the railing.

It is not surprising that while plaintiffs allege a design flaw through their expert witnesses, the defendants have their own experts who deny any flaw and maintain that the railings were installed according to safety rules and regulations.

While it has been noted that some of these fatal accidents have been caused at least in part by motorist speeding, and often happen in curved roadway areas of the Big Dig, it seems intuitive that the railings were not designed to protect motorists using those areas of the project. For safety sake, the concrete "Jersey barrier" should be increased in height.

As reported by the Democrat & Chronicle [February 7, 2010], Pablo Nieves was cited for running a red signal at Crittenden and West Henrietta Roads, causing a collision with a car in which Zhofa Pan, 54, a Chinese citizen, was a passenger. Mr. Pan died at Strong Hospital.

If the circumstances are as cited by the Brighton Police Department and reported by the D&C, this would be a clear case of wrongful death, suffered by Mr. Pan. As a passenger in a vehicle which was in a crash, it is highly probable that he did not participate in causing the resulting collision.

As detailed in a past blog, the elements of a viable wrongful death suit are that someone died [Mr. Pan], and that the death was caused by the wrongful conduct or default of the defendant [Mr. Nieves: alleged to have run a red signal causing a collision], which conduct or default, had the decedent survived, would have been a cause of action which could have been maintained, at the moment of death by the decedent [Mr. Pan's personal injury].

From the article mentioned, one can not determine if Mr. Pan was survived by distributees who have suffered pecuniary loss by reason of his death, another requirement of wrongful death suit.

The last issue of standing to initiate suit for wrongful death is that a personal representative be appointed for Mr. Pan's survivors. Although getting a personal representative appointed for a Chinese national may be problematical given geographical distance, legal and cultural differences, a two year statute of limitations would apply in this matter.

Owners of Toyota automobiles are well advised to check with their dealership or mechanic to see if their model of Toyota manufactured automobile is one that has been involved in the recent spate of acceleration problems.

Drivers of certain model Toyota's have reported that the vehicle has suddenly begun to accelerate out of control, resulting in serious, and sometimes fatal crashes.

Toyota has issued recalls for millions of motor vehicles to install safer equipment to combat the problem.

There are a number of lawsuits brought for injury and death caused by this particular problem.

According to the December 24, 2009, Democrat & Chronicle article "Tia Gerstner offers tearful apology in death of Joseph Mueller" Tia Gerstner, age 19, was being sentenced in New York State Supreme Court on her plea of guilty to second degree manslaughter, a felony for which she will serve six months in jail and probation following that for 5 years.

She told the sentencing judge that before she drove the car in which her 17 year old best friend, Joseph Mueller, was killed, she had consumed two 22-ounce beers and had smoked marijuana.

The March 28, 2009 crash happened when she lost control of the car she was driving at 2 a.m. in suburban Rochester, hit a tree, rolled and hit the front porch of a house.

As the driver of an automobile, Ms. Gerstner owed her passenger, Mr. Mueller, the duty of safe and prudent operation of the vehicle. Influenced by the consumption of beer and marijuana, she caused his death by her failure to safely operate the car. Judging from the facts, this is clearly a case of wrongful death. Mr. Mueller's family could sue both for loss of support [pecuniary damages], funeral and medical expense and perhaps for conscious pain and suffering.

Obviously, no amount of money can compensate a family of a deceased young person, Some families have used wrongful death suit proceeds to honor the memory of their child, for example, by endowing a scholorship fund in their name.

Each wrongful death action must present the necessary elements as described in my blog of last December 22. In a 2006 case a Long Island court ruled that a lesbian could not continue a wrongful death case against the driver of an automobile which struck and killed her long-time partner.[Saegert v. Simonelli, 12 Misc.3d 1193(A)]

Recall that for a viable wrongful death case, among other things it must be shown that the decedent was survived by "distributees" who have suffered pecuniary loss by reason of the death, and that a personal representative of the decedent had been duly appointed.

In this case, the personal representative of the decedent was her partner, who was nominated in the decedent's will as Executor. As Executor, the woman brought a wrongful death suit against the driver of the car involved.

The defense brought a motion for "summary judgment", essentially a knock-out blow to the wrongful death case. The Court agreed with the defense theory that the Executor had "standing" to bring suit for wrongful death, although not in her own name because she was the "personal representative" but not a "distributee" as defined under New York State Law.

This ruling meant that the surviving partner could not recover pecuniary damages - especially loss of support - from the driver of the car which struck her partner.

On the other hand, the Court ruled that the defendant was not entitled to summary judgment on the "survival action" for pain and suffering which was also brought by the Executrix, as the estate is the beneficiary of damages awarded. The decedent appeared to have lived for about three hours after she was struck by the car. If she was conscious for some or all of the time before she dies, there might be money damages for her pain and suffering.

This case served to show again how same-sex couples are not given equal treatment under the law, and was useful to demonstrate the duality of legal actions available for death cases.

What kinds of wrongful death matters has the blogging attorney handled in the past? Below is a list of the typical kinds of wrongful death matters previously litigated:

CAR CRASH: A college student returning home for the holidays, passenger in a car driven by a classmate who failed to yield to a speeding car, pulled out and was "T-boned" when entering the highway. The decedent survived for eight days in the hospital before expiring. The student's mother successfully sued both drivers for wrongful death, and used the proceeds to honor her daughters memory by sponsoring a nursing scholarship.

CAR CRASH: A young mother, joyriding in her husband's powerful Chevy Camaro, with three little girls (two her own) in the backseat, recklessly ran a stop sign on a county road and was struck by another vehicle. The three girls were killed. The mother went to prison. The father sued for wrongful death, and used the recovery to provide for the couple's other child.

HOSPITAL MISTAKE: A 44 year old man, a long time Eastman Kodak employee, hospitalized after injuring himself in a single vehicle motorcycle crash, was not monitored properly as his oxygen level dropped precipitously. A hospital employee looked at his "pulse ox" score and remarked that the finger monitors were "always failing" or words to that effect. The fact that he was suffering from massive internal bleeding was discovered after it was too late to save him. His wife successfully sued for wrongful death. His distributees included two teen-age children. Proceeds of settlement were used for their college education.

MEDICAL MALPRACTICE: A sixty year old retired man underwent surgery for cancer of the penis by a urologist. Following his post-operative aftercare, he received no follow up care or treatment (chemotherapy or radiation) for his cancer. When his cancer returned and spread into his lymph nodes, he was terminal. Although his adult children's economic damages were modest because he was retired, they received sums of money due to the pain and suffering he endured, including his knowledge that he was "terminal" long before he passed.

MEDICAL MALPRACTICE: A 48 year old man twice in the same day went to his internist, complaining of heartburn and saying that he felt "odd". The doctor gave him an EKG, and prescribed nitroglycerine tablets, but sent him home both times. That evening he died from a massive heart attack. The doctor settled, acknowledging that she should have sent the decedent to the hospital, having previously treated his father for heart disease, and knowing the family history. Since the decedent was earning hundreds of thousands of dollars annually, the settlement amount paid to his wife and daughters, aged 19 & 21, was in the millions of dollars.