New York Wrongful Death Lawyer Blog

The Bureau of Land Management, which owns the Mojave Desert lands where the fatal road race occurred will investigate whether the race promoter kept its own safety rules in running the event which killed eight spectators.

The safety rules of the promoter, Mojave Desert Racing of El Monte, CA, specified that spectators must stay 100 feet from the track and racing vehicles.

The contract between Mojave Desert Racing and the Bureau of Land Management required the promoter to keep spectators 50 feet away from the racing vehicles.

Clearly, neither the promoter's rules, nor the contract terms were adhered to as many spectators closely lined portions of the race route through the desert.

As I said in my earlier entry on this sorry event,8 Dead in CA Desert Off-Road Truck Wreck the spectators assumed the risk of being proximate to the race course. When the course is 50 miles long, neither the race promoter, nor the land owner can be responsible for what spectators do. Any investigation, whether federal or by the California Highway Patrol, cannot escape that conclusion.

The facts of the Sean Bell wrongful death case are especially compelling. An unarmed Mr. Bell was gunned down on a street in Queens by police officers who unleashed a 50-shot barrage, on the day, in 2006, that Mr. Bell was to be married to Nicole Paultre. The case was settled at a pre-trial conference in late July.

A prior blog entry asked the question of how a fiancé, under NY law, could bring a wrongful death suit? The answer was revealed: although unmarried, the couple had produced a child, and the mother was appearing "in loco parentis" for the child.

Actually, Mr. Bell and his fiancé had two children together without benefit of marriage, and the kids will share the $3.25 million settlement, after the one-third contingency fee paid to their attorneys, when they turn 18 years of age. Ms. Paultre-Bell will receive nothing from the settlement under NY law, as unmarried, she had no legal expectation to the support of Mr. Bell. Her solace may be that she will not have to set aside college monies for the children.

What if your husband, a pilot, crashed in his single-engine plane, crawled from the wreckage, and though badly injured, activated an emergency signal that worked for six hours, giving US air traffic controllers an idea of where the crash site was.

What if rescuers did not arrive on site until two days later, finding your spouse dead, a final note to you scrawled on an envelope found near his body.

What if the National Transportation Safety Board [NTSB] wrote the Federal Aviation Administration [FAA] a letter requesting that it tighten its procedures for reporting lost aircraft and quickly getting radar data to the Air Force, as reported in the New York Times article "F.A.A. Hears Distress Calls. How Well It Responds Is Another Matter..."? This case was one of five lost plane cases contained in the letter.

The failure of timely response to the plane crash was caused by miscommunication, a lack of trained personnel, old equipment, and other problems, mostly bureaucratic. In this case, the NTSB blamed the FAA, who pointed a finger at the Air Force Rescue Coordination Center in Florida, then back again.

The pilot's daughter admitted that it was unclear whether her father could have been saved by a quicker rescue response, however, she did want it known that mistakes were made in his case, and it should have been handled differently.

Under these circumstances, could a successful wrongful death case be waged against the US government for the slow rescue response?

Very unlikely. Michael Barr, an expert cited in the NYT article opined: "What the FAA has done is they've accepted the current risk that people won't be found." I believe that their governmental function or duty in cases such as these is "discretionary", and therefore exempt from claims.

I first read this case in law school. It shows the difficulty of successfully suing the US government for tort liability, including wrongful death.

Brown v. US is a 1986 US Court of Appeals, 1st Circuit, case . The facts are compelling: on Friday, November 21, 1980, at noon, the fishing vessels Sea Fever and Fairwind, left their home port of Hyannis, MA, bound for Georges Bank to lobster. Before leaving port, and on their day's journey to the fishing ground, as was their custom, they listened to their radio receivers which broadcast the National Weather Service marine weather predictions. Friday's 11 am, 5 pm and 11 pm broadcasts all predicted good weather. The boats arrived at Georges Bank early Saturday morning, where, starting with the 5:00 a.m. broadcast, the weather report carried a gale warning.

The fishermen out on the water already knew that the weather was worsening. The northwest winds and seas were running at heights far above those mentioned on the broadcasts of good weather. Because of the wind's direction, the boats could not turn back to port. The winds and seas continued to rise.

The Fairwind "pitchpoled" and sank, carrying three sailors to their deaths. One crewman onboard the Sea Fever was swept overboard.

The families of the dead fishermen sued the US, citing negligence in not earlier predicting the storm's path. Their specific claim was that the National Meteorological Center failed to repair or replace a sporadically malfunctioning weather-reporting buoy located on Georges Bank. Plaintiff's expert testified that an important component in predicting the future weather on Georges Bank would be an accurate report of the current conditions. Had the NMC received the current conditions, it would have predicted the path of the storm in time to warn the fishing vessels to return to home port.

A US judge, hearing the case without a jury, pursuant to the Suits in Admiralty Act, awarded the fishermen's families damages. The US appealed the decision.

In its decision, the Court of Appeals reviewed some of the legal history of the FTCA, and stated that "the area of government acceptance of liability on account of government functions has presented difficult questions".

The appellate court found the logic of the lower court's decision as straightforward: the US government established the service of weather reports for the benefit of fishermen, among others; the fishermen relied on the reports when they decided to leave port to go to Georges Bank; the US knew that fishermen relied on the reports, the US induced the fisherman's reliance; having induced reliance, the US owed an obligation to the fishermen to use due care.

The Court of Appeals then overturned the award, finding that the government "did not make an affirmative misstatement of fact, that an operating buoy was currently providing wind data from that location". Furthermore, the government did not create the weather, it merely failed, to render adequate performance on a "discretionary undertaking".

Clearly, on reading the decision, the Appeals Court was very conscious that an affirmance of this case, could vastly expand governmental tort liability. "Every service that the government offers is presumably intended to benefit some class or classes of persons; ergo, they use it; ergo they relied on it; ergo the government induced reliance; ergo the government owed a duty of due care. On this basis, the only parties to whom the discretionary exception would apply would be who? Non-users?"

The facts of this case would test the empathy of the most hardened jurist. To me, the fishermans reliance on the government's "good weather" broadcast was justified, and ultimately fatal.

The Federal Tort Claims Act [FTCA] is a statute enacted by the U.S. Congress, which partially waives "sovereign immunity".

Under 28 U.S.C.§1346(b), government liability is limited to "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred". However, the FTCA exempts claims based upon the performance, or failure to perform, a "discretionary function or duty".

There has been much litigation over the difficulty parsing the words "discretionary function or duty". What is discretionary? Several blog entries will follow this one, and partially describe the tortured legal history of "discretionary function or duty".

A May 18, 2010, NY Daily News headline was confusing: Court date set for Sean Bell fiancee Nicole Paultre-Bell in wrongful death lawsuit How does a fiancee qualify to bring a wrongful death lawsuit under New York State law? A prior blog entry examined the requirements for becoming appointed as a "personal representative" in order to legally bring a wrongful death lawsuit, and clearly, fiancees have no special statutory right; either one is a spouse or one is not.

The facts of this man's death are especially compelling. An unarmed Mr. Bell and two other men were gunned down on a street in Queens by police officers who unleashed a 50-shot barrage, on the very day that Mr. Bell was to be married to Nicole Paultre.

If the wedding did not take place, the fiancee has no expectation that she would be supported by the decedent in the future, nor absent a will provision favoring her, have any rights to the decedent's estate. How does Nicole Paultre rate?

The answer is that the couple had a baby.

Ms. Paultre sued in her representative capacity as parent on behalf of her child, who is a distributee of Mr. Bell, would expect to rely on his support in the future, and also share in his estate.

Plaintiff lawyers are eager to conference the case on the July, 2010, date set by the federal judge, recalling the multi-million dollar settlements of police torture victim Abner Louima and unarmed shooting victim Ousmane Zongo.

In February, 2010, the United States Court of Appeals for the Fifth Circuit affirmed the lower court decision in Davis, et. al. v. USA which held that governmental immunity barred suit for a death that occurred during Hurricane Katrina rescue operations.

During the storm, a married couple escaped flood waters by climbing onto an elevated highway in New Orleans. A U.S. Navy helicopter offered to pick the stranded couple up, and Mrs. Davis was put into a "rescue strop", to be raised by winch approximately 40 feet to the hovering copter. During the lift, the hoist operator noticed that her arms had become free and she was sinking into the rescue strop. While personnel attempted to secure her from the helicopter, she fell back onto the highway. Soon after her fall she was raised in a "rescue basket" by a Coast Guard helicopter. The injuries from her fall during the Navy's rescue attempt resulted in her death.

Mr. Davis filed suit in U.S. District Court, alleging wrongful death, negligence and battery, under the Federal Tort Claims Act and the Louisiana Civil Code. The Government responded that the immunity provisions of the Federal Tort Claims Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act barred suit.

The appellate report of this case did not go into detail, however, it is clear that the suit alleged that the "rescue strop", used by the Navy, was not as safe or suitable for the purpose of hoisting a person into a hovering helicopter, as the "rescue basket" used by the Coast Guard.

The United States can only be sued with Congressional consent. Both US statutes named above preclude governmental liability for any claim based upon the exercise or performance of, or the failure to exercise or perform, a "discretionary function or duty" on the part of a federal agency.

In part, the Fifth Circuit held that because of the emergency situation left by Hurricane Katrina, the failed rescue of Mrs. Davis involved the exercise of discretion as to the means and timing of the attempted extraction.

Suit was accordingly barred by sovereign immunity.

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.

Did the NYC Firefighters dispatch center workers have a duty to help Eutisha Rennix last December 9, as she lay on the floor of a bagel shop where she worked, unable to catch her breath and in stomach pain? The two had stopped at the cafe to buy their breakfasts when her coworkers told them of the woman's physical distress. Although they were in uniform, they did nothing to help her, other than to place a call for emergency services.

Since she and her unborn child died at the hospital several hours later, everyone has an opinion.

The Rennix family attorney, said "It is outrageous that emergency medical technicians who have a duty to provide emergency services to individuals could ignore someone who is in need of such services."

Ms. Rennix co-workers at the bagel shop were shocked at the "cold-hearted" response of the two EMTs: "They had a callous disregard for that woman... It's like they felt as if they couldn't be bothered to help that woman".

The EMTs lawyer claimed his clients were being vilified by a rush to judgment, and that they did all they could for Ms. Rennix. The attorney continued "I am confident the true facts and evidence will establish my clients acted appropriately to the best of their abilities."

Union leaders said that the two workers were licensed as EMT's but did not work "in the field".

The State Health Department plans on investigating; officials there stated it "expects EMT's to adhere by their employers code of conduct."

Mayor Bloomberg called the EMT's failure to act "Unconscionable."

The Brooklyn District Attorney plans on investigating, as criminal charges [reckless endangerment; official misconduct] may be appropriately brought against the two.

Recently, following the exhumation of Ms. Rennix body for autopsy, the family attorney reacted to a preliminary report which indicated that an asthma attack claimed her life. "Had the asthma attack been addressed, would she be alive today? That's the question that needs to be answered."

In considering the elements of a viable wrongful death claim, the Rennix family attorney is correct, if Ms. Rennix was not "savable" by the giving of emergency medical services, the "duty" that the EMT's had towards her will not matter.

On the other hand, if the autopsy indicates that asthma treatment would have relieved Ms. Rennix's symptoms on December 9, and she would have lived, the nature of the duty owed her by the two EMT's will be very relevant to the wrongful death lawsuit that is certain to follow.

None of the news articles concerning the EMT matter read by the blogger indicated that Ms. Rennix was married, however, she had a three year old son, who is her "distributee". A wrongful death lawsuit for pecuniary damages, and an accompanying personal injury suit for "pain and suffering" would be brought by her "personal representative.

Given the public reaction to the story of the EMT's failure to act, one can imagine the emotional argument of the woman lying on the floor, gasping for breath...

A report critical of many of the 107 deaths of detainees held by the Immigration and Customs Enforcement agency, which is charged with detention and removal operations of illegal immigrants to the U.S., alleges behind-the-scene official cover up of substandard care or abuse, as reported by the New York Times in Officials Hid Truth of Immigrant Deaths in Jail.

Since 2003, when the agency was formed under the Department of Homeland Security, it has not been held accountable for deaths that have occurred in our nation's immigration jails, which are described by the Times as "a haphazard network of privately run jails, federal centers and county cells where to government holds noncitizens while it tries to deport them"..

The story details at several deaths of persons who, by virtue of their status as immigration detainees were owed a duty of care by ICE and the US government.

A man committed suicide, partially due to the unbearable pain he suffered. The facility's medical personnel falsified the record to show that he had received medication, however, at the time they said he received it, he was already dead;

In another case, a man with a skull fracture was left in isolation for 13 hours before an ambulance was called;

Another man made "numerous" requests for a biopsy, which he did not receive, allowing the undiagnosed spread of penile cancer.

The families of these detainees person appear to have wrongful death and survival claims against the U.S..