New York Wrongful Death Lawyer Blog

If American Airlines was not troubled enough by financial woes, the family of a passenger who died after eating "airline food" on a flight between Barcelona and New York City is suing it and Sky Chefs for wrongful death.

They say that the food was contaminated with Clostridium perfringens bacteria.

According to the CDC, (C. perfringens) is a spore-forming gram-positive bacterium that is found in many environmental sources as well as in the intestines of humans and animals. It is commonly found on raw meat and poultry. It can survive in conditions with very little or no oxygen.

C. perfringens produces a toxin that causes illness, usually diarrhea, and is generally not dangerous except in the case of the very young or the elderly.

Unless other passengers on the same flight, or same day, reported similar symptoms of food poisoning, it may be problematical to prove that the bacterium was from the airline food. The man began to have physical problems after eating. Experts on food poisoning say that the onset of symptoms, was unusually fast.

It may also be difficult to prove that the bacterium caused, or contributed to decedent's death.

The passenger died of a heart attack, soon after arriving at his home in Miami.

A comment made about this case was: "It's rare to die of food poisoning; it's common to die of a heart attack".

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.

According to KSDK.com, an Illinois family has sued the gym owner and trainer for the wrongful death of a 27 year old man who voluntarily entered into a mixed martial arts kickboxing contest.

The family alleges that the man had been injured a few days prior, in practice, and should not have been allowed to fight. They claim that he suffered repeated head trauma during the fight, and aggravated his previous injury.

The gym owner claims never to have seen the man practice at his facility, believing that he trained to fight elsewhere, and had entered the competition as an independent fighter.

MMA "mixed martial arts" is a brutal "sport". I have not seen any participant in televised matches wearing protective head gear. Punches or kicks delivered to the head of fighters all have the potential to be lethal.

All cases of this sort are fact driven. Without more, very compelling facts to demonstrate liability, this suit will not last beyond the first few rounds.

In the entry Cause of Death? The Tragic Case of Brittany Murphy, I wondered if her husband had spoken with competent legal counsel before he threatened to bring a wrongful death suit against Warner Bros. because it had cancelled Ms. Murphy's employment contract.

Another ill advised wrongful death suit made the news [AP] recently, when a man actually sued the IRS for his wife's suicide, three days after agents raided their home in Indiana. She was 50 years old, and the mother of six. She left a note saying she could not "live in terror of being accused of things I did not do."

Was there a "wrongful act, neglect or default" on the part of the IRS which caused the woman's death? Based on these facts, it would not seem so...

Before the release of the official autopsy report on actor Brittany Murphy, her husband has leveled accusations against Warner Brothers that they are responsible for her death.

Producer Simon Monjack, apparently distraught at the unexpected tragic death of his wife at age 32, is quoted by TheDailyBeast.com as threatening suit for wrongful death due to breach of contract, saying "They killed her... She was devastated.", at the loss of employment.

According to the show Access Hollywood, a Warner Brothers representative promised to vigorously contest Monjack's accusations: "Any claim that Warners Bros. Pictures was somehow responsible for Brittany Murphy's tragic death is demonstrably false, reprehensible and defamatory."

One would wonder if Mr. Monjack had consulted with a wrongful death attorney prior to making his accusations. He claims that she dies due to a heart attack. The autopsy report will necessarily report whether medications that were found in their home, [some prescribed to her, some to him, some to her mother, and some to various third party names] were ingested by her.

Various medications can interact with each other, with harmful results. Other recent celebrity cases involving the use of drugs include Anna Nicole Smith and Michael Jackson.

In the meantime, Mr. Monjack has likely made some powerful enemies at WB. Not knowing the actual cause of his wife's death, he would have been better advised to wait on the autopsy. No matter what, breach of contract, even if shown, will not be recognized as a legal cause of death.