New York Wrongful Death Lawyer Blog

In January, 2007 Marvin E. Schur, age 93, froze to death when the Bay City Electric Light & Power and Bay City, MI itself, limited his electric usage for non-payment.

An autopsy confirmed the cause of death.

Neither the power company nor the city paid sufficient attention to their customer/citizen when the power to his home was limited.

In August, 2011, the US District Court approved the $500,000 settlement. Members of the Schur family were granted $6,000 each. The family lawyers got $187,747.57 for their fees, and the Bay Regional Medical Center, received the balance: $323,182.29, pursuant to Mr. Schur's Last Will. How nice.

This case is factually similar to one I wrote about in June, 2010: Velma Arlene Fordham, age 58, who froze to death because her apartment's gas service had been cut off during a major lake-effect snowstorm in Buffalo, NY.

A 51 year-old man was crushed to death when he climbed in the back hopper of a Heil Formula 7000 garbage truck and attempted to clear debris which was jammed, preventing a "compactor blade" from moving.

He perished when the hydraulic system engaged, and a safety mechanism which would have saved him failed.

The City of Norfolk originally said that the man had "violated a city policy" by climbing in the back of the truck.

Later, state investigators confirmed that it was "city policy" for sanitation workers to do so; otherwise, any jamming issue would necessitate leaving the trash route and returning to the maintenance shed for loosening or repair.

The Virginia Department of Labor and Industry investigated this occurrence and found 8 "serious (life threatening) violations" related to this accident. For example: the safety system on the truck was supposed to be checked daily. That did not happen.

A well-spoken Norfolk councilman stated "Some heads should roll on this..."

[As reported by Harry Minium in The Virginian-Post, October 12, 2011]

Comments attached to the Huffington Post report of a lawsuit filed on Tuesday, November 22, 2011 were uniformly critical of plaintiff lawyers who sued the popular duo Sugarland for the August wind-related stage collapse which killed seven, and injured 40 others.

Traditional negligence case analysis involves finding a "duty owed", a breach of the duty, and injury caused by the breach.

The complaint alleges that Sugarland, among many others, had a duty to provide a safe concert environment and use reasonable care in the direction, set-up and supervision of the concert.

Sugarland supporters make relevant inquiry: "What does the singing duo have to do with how the stage is constructed?" [The situation was clearly different when the Rolling Stones hired "Hell's Angels" to act as "security" for the Altamont concert, years ago.]

The lawsuit filed in state court in Indianapolis, combines 44 injured survivors, four wrongful death plaintiffs, and "at least 20 law firms".

Neither the fair, nor the State of Indiana are mentioned in this suit, although there are many others already filed. Apparently, Indiana law limits the state's liability for the incident to $5 million.

Lawyers are looking for "deep pockets" for their injured clients.

Sugarland is not responsible for what occurred in this tragic case.

Other comments about the HuffPost article are critical of concert attendees, asking where individual responsibility for personal safety begins. As I wrote in a recent blog entry about the lack of uniform standards for outdoor concert staging, "Let the concert goer beware".

In an article published November 6, "Scant Scrutiny of 1,200 Deaths in State Care", New York Times reporters conducted their own analysis of death records from NYS group homes, and found disturbing patterns.

One in six deaths reported about this population in New York State were either called "unnatural" or "unknown cause". The same figure is far less common in other states that keep like records.

The records seemed to indicate that patient care problems contributed to the death rate.

Patterns were revealed in the 7,118 deaths of developmentally disabled persons in the past 10 years: too many residents choked to death when left alone with their food; others fell to their deaths when they needed help on stairs; more died in fires in their group homes that lacked fire safety measures; some drowned in their bath tubs when left unattended by staff for too long; still others repeatedly ran away from their homes, until eventually they were found dead.

The article describes the lack of statewide record keeping concerning the developmentally disabled, and the lack of training required for their caregivers, and standards of care to be applied.

This segment of our population is not as valued by society as others. There is often no-one to inquire into the circumstances of death of these folks.

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.

When the family of Samuel Ives, 11, set up their campsite in a remote area of the Uinta National Forest, they did not know that earlier that same day, June 17, 2007, at the same campsite, a man was awakened by, and was forced to repel, an attacking bear. He fired a pistol and threw stones to scare it away.

The man reported the incident to the Utah County Dispatch, the U.S. Forest Service, the highway patrol, and the Utah Division of Wildlife Resources.

The same day, UDWR began a search for the bear, which under its' classification system, had to be destroyed because it constituted a threat to the public because of its aggressive and fearless behavior towards humans.

By 5 p.m. or so, the bear had not been found, and the Division of Wildlife Resources personnel postponed the search until the next morning.

Later, the Ives family arrived, set up camp, and went to bed around 9 p.m.

During the night, the bear attacked, pulling Samuel from a tent. His body was found 400 yards away.

The boys' family sued for wrongful death, alleging that the parties involved were negligent in not closing the camp site and failing to warn of a dangerous bear in the area. They said, that had they known about the bear, they would not have camped in that area.

Somewhere in the government campground employee communication hierarchy, information and warnings about the bear were not passed along. Some Forest Service employees did not know about the earlier incident, and consequently, no action was taken to warn arriving campers.

The US District Court judge ruled for the plaintiffs, finding that they had shown that the bear that attacked was the same bear that had attacked campers earlier in the day.

Besides arguing government immunity from suit, attorneys for the U.S. Forest Service contended that its employees were not negligent and had not omitted any duty to the plaintiffs.

In May, 2011, the US District Court judge hearing the case, found the U.S. Forest Service, which owns the land where the attack occurred, 65% liable, and awarded the boy's estate $1.95 million.

On October 7, 2011, a Utah state District Court judge granted summary judgment to the Utah state defendants, dismissing the family's wrongful death suit. He ruled that Utah policies regarding black bears were "not law" and nothing contained in those policies changed the liability protections of the Utah Governmental Immunity Act.

Different jurisdictions, different party defendants, different laws involved, different result.

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...

In a March 30, 2011, article Sheriff's inquiry continues into death of Jennifer Simson, the Democrat & Chronicle reported that the Monroe County Sheriffs Office investigation into the tragic accident which killed a 34 year old Pittsford woman, last February 25, has not been completed.

A previous entry described some of the investigative steps involved.

The article mentions that the MCSO is "reconstructing the events", and that the snowplow driver's cell phone records have been subpoenaed, in order to determine if he was on the phone at the time of the accident.

Driver distraction caused accidents have been a common theme of several New York wrongful death lawyer blog entries, including: Wrongful Death By Distraction

Along with her husband and three children aged 4 and under, family and friends, the community at large mourns the death of Jennifer Simson, struck and killed by a Town of Pittsford snowplow traveling in reverse gear in a Main Street parking lot on February 25, 2011.

A number of entities will conduct investigations into the accident, including the Monroe County Sheriff's Office, which was on scene immediately after it was reported.

It is likely that the Town of Pittsford will conduct its own investigation into the occurrence, as employer of the snowplow driver, and owner of the parking premises, it may be held civilly liable for the results of the driver's actions.

Investigators would interview at least one witness mentioned in Husband Talks About Wife killed by Snowplow, who saw and heard Mrs. Simson yell out just prior to being struck by the plow. There may be other witnesses.

Investigators will question the driver of the plow. Chances are good that under either federal or state law, he was tested for alcohol and drug impairment. Were the rear window or mirrors clear of frost, snow or any other substance that would reduce his visibility backwards? Was he distracted as he backed up? Did he check the rear by turning and visually "clearing" the path the vehicle was intended to take while backing? Did he fail to watch out for pedestrians? Did he check his mirrors prior to backing? Did he operate the plow in reverse without taking all necessary precautions? At what speed did he proceed backwards? How far did the truck back until impact and stop?

Investigators will inspect the snowplow equipment. Were there audible [loud beeping] and visible [flashing light] alarms installed and in use on the plow at the time of the accident? How good was the driver's backwards visibility from the cab? Was the design of the cab, rear window and mirrors, suited for backwards viewing?

Were there any "contributing factors" relating to the operation of the snowplow? What were the lighting conditions at that time of day? Was it snowing? How was visibility in general?

Were there any contributing factors on the part of the pedestrian, Mrs. Simson? Did she disregard something potentially dangerous by walking behind the plow in the parking lot? Was she distracted? Was she in a hurry? What color was her clothing?

These questions and others will potentially be answered by the investigations into Jennifer Simson's death.

Whatever the results of the investigations, it is a tragedy for the Simson family and for the driver of the snowplow.

Over 225 individuals have notified the City of New York of their intentions to file suit over blizzard-related losses, most for property issues, seven for personal injury, and at least two for wrongful death due to alleged slow response to 911 calls for medical help.

On January 19, 2011, CBS New York reported Family Files Wrongful Death Suit Against City For Blizzard Death, then on January 25, 2nd Blizzard-Related Wrongful Death Suit Filed Against NYC. In the first matter, it is alleged that it took 911 emergency services nearly three hours to respond to a call for help; in the other matter the family waited an hour-and-a-half for services. In that time, both the subject of the calls passed away.

Both families are represented by attorney Sanford Rubenstein, who has a reputation for forcing settlements in high profile cases.

Both cases seek $20 million in damages, blaming the police, fire, transportation, sanitation and emergency medical services for the deaths. Mr. Rubenstein is quoted "It is inexcusable for there to be a delay of an hour-and-a-half in a life and death situation...".

Of course, this is not the first time 911 emergency services have been sued for failing to timely respond to a call for help. The seminal case appears to be De Long v. County of Erie, a 1983 New York Court of Appeals decision. In that wrongful death case, a woman was murdered by a burglar, after she had called the 911 service to report someone breaking into her house. The dispatcher mistakenly noted and sent help to the wrong address, crucial because the correct address was only a block and a half from the local police station.

De Long contained a discussion of whether Erie County had a "special relationship with and duty towards" the 911 caller, sufficient to hold it liable for negligence.

Under the circumstances of the case, Justice Wachtler, found a "special duty" and declared "Whether a special duty has been breached is generally a question for the jury to decide. But it should be emphasized that whether the municipality has acted reasonably depends upon the circumstances of the particular case".

The circumstances of these two particular cases are that the emergency services were slowed because the roads were paralyzed due to the severe weather experienced in New York City on the dates in question.

Wachler's decision continues: "When an emergency service is involved it must be recognized that the circumstances are often quite demanding and that some mistakes will occur, even when the service is well organized and conscientiously administered. Allowance must be made for this and although any error, however slight, may have dire consequences it will not always justify an award for damages".

Given the import and tone of the language used by the Court, it is clear to me that Mr. Rubenstein will have a difficult task demonstrating that the City did not act reasonably given the extreme weather conditions that emergency personnel had to deal with to reach those persons in need of their services.

Chances are that they did the best they could under the circumstances.

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".