New York Wrongful Death Lawyer Blog

Another member of a Steuben County Amish community died as a result of the July 19 crash allegedly caused by a drunk driver. Elva J. Hershberger, age 39, succumbed Tuesday afternoon. Her husband died in the same accident.

The facts and circumstances of the crash point to a viable wrongful death suit on behalf of all of the deceased. A drunk driver tried to pass farm machinery on a rural road, in a "no-passing" zone, and collided with a van carrying a group of Amish farmers.

I do not expect that any wrongful death case will result over this tragic, preventable incident. The Amish separate themselves from the rest of the world in a wide variety of ways: cultural, social, technological, and legal.

Filing of a lawsuit is forbidden by the Amish.

News articles indicate that the Amish community will take care of the families of those killed and injured in the senseless incident.

The Yates County area community-at-large joins the Amish community in mourning the death of five persons killed by an alleged drunk driver on July 19, 2011. Four of the dead were in their 40's and one was 60 years of age.
Several of the dead were the heads of households.
The driver, Steven Eldridge, age 42, passed a tractor and other farm equipment in a no passing zone, then struck a van carrying the decedents. He has been charged with five counts of criminally negligent homicide and driving while intoxicated.
Hundreds of Amish from communities in distant states came to Benton for the funerals.

Ryan Dunn, age 34, known for his insane and dangerous antics in movies and on MTV as part of the Jackass franchise, crashed his Porsche, going 130 mph while intoxicated in Chester, PA, at about 3 a.m., last June 20.

Zachary Hartwell, Dunn's passenger who died in the fiery crash, was married less than one year at the time.

As passenger, Hartwell was not in control of the automobile, Dunn was. His high speed, intoxicated, operation of the Porsche was negligent. The crash and resulting deaths was his fault.

No wrongful death recovery will make up for Hartwell's wife's loss...

Whether Dunn was a true "jackass" or an all-American boy, the combination of youth, alcohol, and speed, once again claimed more life.

The Monroe County Sheriffs Office completed its investigation into the accident which killed Jennifer Simson, age 34, last February 25, in a parking lot behind the Town of Pittsford offices.

Apparently at the time of the accident, both the snowplow driver and Ms. Simson, on foot, were talking on cell phones. He was using "hands-free" equipment.

Driver distraction-caused accidents have been a common theme of several New York wrongful death lawyer blog entries. Thus, it appears that the driver, a Town of Pittsford employee, may have been distracted, at least cognitively, by use of a cell phone while driving.

One telling admission by the snowplow driver to investigators was that his rearview mirrors were obstructed by the salt spreader mounted on the rear of the truck.

As mentioned in an earlier blog entry, investigators would query the driver about his backwards visibility from the cab, and if the design of the cab, rear window and mirrors, were suited for backwards viewing.

Was he able to turn and "visually clear" the path the vehicle was intended to take while backing? We now know that his view behind the plow truck was at least partially obscured while backing up in the lot.

Whether going forwards or backwards in a motor vehicle, if you cannot see where you are going, you don't go...

Saturday's Democrat & Chronicle reported "Snowmobiler Killed in Riga". The accident happened on Thursday night, February 10, 2011, at about 10:00, when a car, traveling westbound, crossed over to the eastbound lane and struck two snowmobiles head-on, killing one person.

Jason Arnold, age 30 was driving the car. The snowmobiler was Thomas Bushman, 37 years old. He was thrown from his sled and died at the crash site.

The accident happened on a narrow bridge over railroad tracks which did not allow the snowmobiles any room to maneuver when faced with an oncoming car.

The newspaper article concluded "no charges had been filed" and "the investigation is continuing"; more information is now available.

The Police Accident Report, form MV-104A from the NYS Department of Motor Vehicles, completed by the Monroe County Sheriff's Office gives more details of the occurrence.

The report includes a section "Apparent Contributing Factors - Human" which lists Mr. Arnold's "vehicle 1" with numeric codes indicating "Fell Asleep" and "Failure to Keep Right". The report also mentions that a MCSO Investigator responded to the scene and interviewed Mr. Arnold and a witness to the accident. Although "Alcohol Involvement" was not indicated on the form by the reporting deputy, another deputy apparently obtained a blood sample from Mr. Arnold. Toxicology tests will presumably be run on the blood to determine if Mr. Arnold was under the influence of alcohol or drugs at the time of the accident.

To Mr. Bushman's family it probably matters little if Mr. Arnold was driving while intoxicated, or simply was so tired that he fell asleep at the wheel. It makes a big difference to Mr. Arnold however, as he could be charged with vehicular manslaughter or vehicular assault as a result of an alcohol- or drug-related driving violation that caused Mr. Bushman's death.

Gabrielle E. Avecedo, 21 years old, died yesterday from injuries sustained on January 22, 2011, in a car accident, in which all four Nazareth student occupants of the car were hospitalized.

On her February 3, 2011, release from Strong Memorial, the driver of the car, Danielle L. Pitcher, of Oswego, was charged with DWI and speeding. She was driving on French Road, near campus when her car slid out of control and hit an oncoming car on the then snowy road.

The combination of youth, alcohol, speed and wintery road conditions led to this tragedy.

As mentioned over and over in past blog entries, a passenger who is killed in a car crash, has a very strong wrongful death claim against the driver(s) involved in the deadly crash.

There is no solace in a good cause of action.

Condolences to Ms. Avecedo's family and friends, to Ms. Pitcher, and to the Nazareth College community.

Very recent blog entries Sixty-One Year Old Woman Killed in Parma, New York and Rear-End Accident Eleven Year-Old Girl Killed in Wellsville, NY, echoed on December 11, 2010 when a pick-up was rear ended by a Chevy Impala on Route 31 in the Town of Sweden, forcing the pick-up into colliding with an oncoming SUV, killing an 81 year-old man and critically injuring three more people.

The driver of the Impala was a 21 year-old woman.

While the Democrat & Chronicle article indicated that "The crash remains under investigation", what I wrote about New York case law concerning rear-end collisions applies in this case. Not maintaining a look-out ahead of your vehicle is a "wrongful act, neglect or default" sufficient to invoke liability for the ensuing accident and the resulting injuries, even death.

Last May while researching stories for blog entries, I came across the NYDailyNews.com report "Former New York Yankee Jim Leyritz settles civil suit stemming from fatal 2007 car accident".

In advance of his trial on manslaughter charges, Mr. Leyritz, as a person accused of criminal charges arising from the same event, settled with the living victims of his alleged wrongdoing.

It was alleged that Leyritz, driving drunk in Florida, on December 28, 2007, ran a red light and plowed into a vehicle containing Fredia Ann Veitch, a 30 year-old mother of two, killing her.

The Veitch family settled for $350,000; $250,000 paid by Leyritz's insurance company, and $100,000 payable at $1,000 per month for 100 months, from his big-league pension.

The civil suit specified that the settlement was without any admission of liability on Leyritz's part.

On December 2, 2010, the Associated Press reported that he was acquitted of DUI manslaughter charges in November, as the jury at criminal trial decided that he didn't run a red light and cause a crash "Ex-Yankee Leyritz gets probation, fine in Fla. DUI" .

While it is elemental that the burden of proof at a criminal trial is tougher to prove than the burden in a civil trial, I was surprised at the result.

I thought that the civil matter was settled in anticipation of a felony criminal conviction, so that at time of sentencing, Mr. Leyritz's attorney could say something to the judge in mitigation of the crime, like: "Your Honor, my client is full of remorse due to what happened. He has accepted responsibility for his actions. Although money will not bring Ms. Veitch back, my client has already compensated her family as best as he can, and spared them the pain of trial, by settlement of the civil case."

Not having the benefit of more information concerning the manslaughter jury's finding of no criminal liability for a passed red light, we do not know how a civil jury would have viewed the facts at a civil wrongful death trial.

I would like to think, under the circumstances, that justice was served. Perhaps Mr. Leyritz's driving did not reach the recklessness required for manslaughter, but was significant enough causally for civil liability to attach.

The Monroe County Sheriff's Office is investigating an accident which happened on November 28, 2010, at the intersection of Route 104 and Dean Road, in Parma, New York.

The deceased woman was riding as a passenger in a car operated by her husband, also 61 years old. They were stopped at a light, facing east on Route 104, when their car was rear-ended and forced into oncoming, crossing, traffic. A truck hit their car.

As mentioned in my blog entry below, under New York State case law, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate non-negligent explanation for the accident.

The driver of the first colliding motor vehicle needs to defend the operation of his vehicle.

New York State Police say a drug-addled driver rear-ended a van, on Friday afternoon, November 26, in Wellsville, killing an eleven year old passenger riding in the back seat.

The woman driver apparently admitted to the police that she had not realized that traffic had stopped when she hit the van in front of her.

Under New York State case law, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate non-negligent explanation for the accident.

She was charged with driving while impaired by drugs.

Unfortunately for them, the family of Cheyenne Wolfer appear to have a good wrongful death claim against her.

On January 23, 2007, an out-of-control, off-duty New Jersey cop on a drinking spree, was heading home in his Jeep Cherokee, when he rammed a vehicle, killing a 2-year-old boy and severely brain-injuring the boys mother.

He had spent part of that day at Madison Square Garden, attending an NCAA game. By his own testimony he had between 10 and 12 beers there. He had 3-4 beers pre-game, at a place called "Stich Bar". He had two beers in his pocket when he entered MSG. When he left Manhattan in his Jeep, with a buddy in tow, they stopped for another "one or two" at a "dive bar". After dropping the friend off at his home, he stopped at yet another bar to buy a six-pack.

Soon after, around 11:00 p.m., he sped onto the Pulaski Skyway (NJ) and hit the victims car.

Plaintiff's attorneys alleged that MSG's CEO Hank Ratner, and facilities executive, Tim Hassert, had encouraged their vendors "to increase alcohol sales", and "recklessly" allowed them to continue to pour beers for visibly affected patrons.

No surprise, the Garden said that it does not serve visibly drunk patrons.

Nevertheless, NYorkPost.com reported on November 8, 2010, that MSG's insurer is said to be paying upwards of $8 million as settlement. That figure happens to have been the cost of caring for the severely injured mother until her death in March, 2010, after three years in a vegetative state.

The cop is now serving eight years in a New Jersey prison for vehicular manslaughter.

A Michigan man, driving on a Detroit area Interstate on November 8, was killed by a tire that came off a car traveling in the opposite direction.

The tire somehow became free, bounced over a median and hit the windshield of the decedent's SUV.

Wheels don't usually come loose from their vehicles. The potential Plaintiff, under NY law, would have the burden of proving that what happened was a result of a "wrongful act, neglect or default".

As I have written in the past, this case would be very "fact driven", dependent on inspection of the vehicle and maintenance records concerning the separation of the tire from it.

Although an investigation into the death was proceeding, a Trooper said that "it appears to be a very unfortunate accident".

I am not ready to say that this result was simply "bad luck".

There was a failure somewhere.

While researching information for yesterday's blog entry on the Megabus crash into a too low bridge span, I came accross a site run by the U.S. Department of Transportation, called "DISTRACTION.GOV - the Official U.S. Government Website for Distracted Driving".

I recommend a visit to the site, as it provides useful facts, figures and other information. I had never considered the "three main types of distraction": visual [eyes off the road], manual [hands off the wheel], and cognitive [mind elsewhere]. While opportunities for inattention are endless, "texting" involves all three types of distraction!

Ford Motor Company and the family of Brian Cole settled the wrongful death/product liability case after the huge jury verdict was awarded at trial. The settlement amount was not disclosed.

Mr. Cole, then 22 years old, was drafted by the New York Mets, and early indications were that he would develop into a stellar professional athlete. He died on March 31, 2001, when a tire blow out resulted in a rollover accident where he was ejected from the Ford Explorer.

Through their attorneys, Cole's family alleged that he died because a design defect in the seat belt caused it to fail, and also, that Ford Explorers had a tendency to roll over, particularly when a tire blow out occurred.

A settlement protects Ford from potentially greater liability for punitive damages which sometimes outstrip the compensatory damages awarded.

Ford has spent huge sums settling Explorer roll over cases. The National Traffic Safety Administration estimates that nearly 4 of 10 fatal automobile accidents involve SUV roll overs.

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