New York Wrongful Death Lawyer Blog

In late October, 2011, it was reported that the widow of a National Enquirer photo editor settled her $50 million lawsuit against the US government for the anthrax poisoning death of her husband.

By her suit, filed in U.S. District Court for the Southern District of Florida, in 2003, she alleged that the government had failed to secure the anthrax bacillus at a military laboratory. In 2001, Dr. Bruce Ivins, a U.S. Army scientist, mailed anthrax laced letters to media and governmental offices in Florida, New York and Washington, D.C. area. Ivins committed suicide in 2008 as investigators prepared to charge him with multiple crimes, including murder. Investigators matched anthrax spores to determine the origin of the tainted letters.

Anthrax poisoning can occur in humans through the intestines, lungs, or skin. Cutaneous poisoning, often through a cut in the skin, is rarely fatal if treated. Pulmonary infection causes severe flu like respiratory distress. Intestinal poisoning causes vomiting, diarrhea, and acute inflamation. Once ingested into the body, it occupies the lymphatic system, multiplies, and kills the host within a few days or weeks.

Five people died as a result of the anthrax spread by Dr. Ivins.

Damages for anthrax poisoning death would include not only pecuniary damages, but also pain, suffering and the decedent's awareness of his fate.

It is interesting that the settlement amount is not being published. I presume that it is far less than $50 million, but would be in an amount sufficient to compensate the family of the decedent for his horrifying death.

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.

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.

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.

Nicole John, the 17 year old daughter of the U.S. Ambassador to Thailand, Eric John, died on August 27, 2010, in a fall from a high rise Manhattan apartment. She had graduated from the International School Bangkok and was to begin studies at Parsons The New School for Design this fall.

The NY Daily News said her blog "portrayed a tormented party girl keen on vodka and Xanax". The blog also showed her affinity for Red Bull and vodka, an "energy-boosting combination".

Prior to her fall she had been drinking for some hours at a Manhattan nightclub, using a fake ID to gain admission. A Facebook message she posted at 2:42 a.m. confirmed her voluntary intoxication. Later, after 4 a.m., at a party, she slipped off her shoes, took her camera, and stepped out onto the ledge of the 25th floor apartment.

Police theorize that she was going to take a photograph, lost her footing and fell. Her body was found on a third floor overhang of the building.

The 25 year old, real estate broker, host of the apartment party was charged with two misdemeanors relating to providing alcohol to a minor, most likely Endangering the Welfare of a Child.

The nightclub spokesman said that the teen's ID was checked before she was allowed inside. A source close to the club said "The technology can be so good that people are developing ways to sneak into places every day... There are some fake Ids that are uncatchable".

Condolences to the family.

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.

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.

It has been reported by the Northwestern (MA) District Attorney, Elizabeth Scheibel, that school officials in South Hadley High School knew of and failed to take any action concerning the bullying that resulted in the suicide of a 15 year-old high school freshman, Phoebe Prince, on January 14, 2010.

The District Attorney's investigation determined that the bullying had been "common knowledge" among students and school administrators.

There was a report of open harassment of the girl while other students and a teacher looked on. Another exchange left her weeping openly in class in front of a high school instructor.

Not surprisingly, school administration officials denied knowledge of the student's suffering, saying she never told them of the bullying and only learned of it the week before she committed suicide at home.

Their credibility is severely undermined as it is reported that Phoebe herself asked school officials to allow her to leave school as she was fearful of being beaten up. Her mother is also reported as having spoken to school administration about the abusive treatment Phoebe was subjected to by two groups of students.

It is an outrage that nothing was done to prevent the taunting, heckling, name-calling, and physical abuse she was subjected to at school over a three month period.

The legal remedies available, whether criminal charges against the 6 teens currently charged with a variety of crimes, or civil suits for wrongful death against all the offenders, including the school administration, for "wrongful act, neglect or default", are obviously inadequate and no solace for the family, nor for our society at large.

This entry based on reporting by the Boston Globe Staff.

Disappointment turned deadly at the University of Alabama Huntsville campus, during a biology faculty meeting on Saturday, February 13, 2010, when Amy Bishop, Ph.D. opened fire. While her motive for the shooting is unclear, it is thought that she was angry at not being granted tenure by the University.

She killed the chairman of the biology department and two other faculty members. Three others were wounded.

Since the horrific event, much has been learned about Ms. Bishop, and people want to know how she managed to be hired by UAH.

It is reported that she shot and killed her brother in 1986. At the time the shooting was called "accidental", and she was not formally charged. Recent reviews of the police investigation that followed show a failure on the investigating authorities part.

In 1993, she was questioned by authorities about an unexploded pipe bomb a colleague received.

Wrongful death lawsuits on behalf of the distributees of the three faculty members killed are certain to follow. All three were married and had children. Each family has suffered a huge pecuniary (money) loss. The faculty members were highly educated, highly productive, and well paid. Each may also have had private business and consulting interests based on their expertise.

Potential defendants include Ms. Bishop and the University of Alabama. In the usual case, criminals responsible for wrongful death seldom have assets to pay successful plaintiffs (remember O.J. Simpson); however, Ms. Bishop reportedly had had some success in developing products and raising funds to market them.

The University's responsibility may be for hiring Amy Bishop without vetting her properly. Had it done so, the anomalies in Ms. Bishop's life may have been discovered before she acted murderously.

A case in the news recently was particularly interesting because of the question raised about whether the wrongful death defendants owed a duty to the decedent.

In an article, Lawsuit to Allege LaBella Failed to Address Investigator's Violent Tendencies reported in Utica, NY, involved the murder-suicide of Joseph and Kristin Longo, a married couple who were divorcing. The husband was a Police Inspector for the City of Utica, who had been acting strangely and verbally aggressive. He was ordered by the police department that employed him to stay away from his wife. After he threatened to commit suicide with his service revolver, it was confiscated, and his work assignment was changed, so that he had only desk duty. He was offered counseling to help him cope with stress.

After he murdered his wife and committed suicide, a suit was brought
on behalf of the couple's four children, ages 9, 11, 15 and 17, against the City of Utica.

The claim is that the city, and its Police Department, failed to protect the wife/mother from her police officer/husband who was essentially out of control. It is interesting to note that part of the rationale for this claim is that the current Chief of Police was a partner and friend of Inv. Longo. Because of the personal relationship, between the two policemen, Chief Daniel LaBella had not acted properly as a disinterested, neutral, party and taken further steps to protect Inv. Longo's wife. Chief LaBella refuted this and called the crime "unpreventable".

Do the facts above present a sufficient connection for one to say that there was a "duty owed" by the City of Utica Police to Mrs. Longo?

Was there a breach of a duty owed to her, which caused or contributed to her death?

How would you find if you served as a juror in this matter?