New York Wrongful Death Lawyer Blog

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".

Last August, late at night, in Clarksville, Indiana, three young friends decided to walk on a railroad bridge, high over the "Falls of the Ohio" park.

Two youths walked in the center of the bridge, on the wooden railroad ties. Their friend, Jesse Middleton, walked on metal grates, near the edge of the tracks.

Suddenly a metal grate gave way, and Middleton plunged 100 feet to the riverbed below, landing face down in water. He was dead by the time help reached him, .

There were signs posted on the bridge warning "No Trespassing".

The NY Court of Appeals, in a 1976 case, Basso v. Miller, set the still current standard for premises liability cases, by scrapping the "old" three-classification system, for trespassers, guests and business invitees, affording each group a different duty owed.

The Court "abandoned the classifications entirely and announced our adherence to the single standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability".

If New York law applied to this case, forseeability would be the "measure of liability". Did the railroad company know that trespassers regularly walked on the bridge? Did it think that warning signs would dissuade people from walking over it? Should fencing have been installed? Should the bridge have been inspected for pedestrian safety?

From the article about this incident, it appears that the bridge was used regularly by young people as a place to hang out, and had been for years.

It also reported that Middleton had taken two unprescribed "Lortabs" earlier that day. Maybe the three friends had been drinking on that summer night?

The Basso court continued: "Contributory and, now, comparative negligence, as well as assumption of the risk, all fit into their respective places, to be invoked when appropriate".

Did the three friends assume the risk of walking on a high bridge?

Without more information, one cannot determine if a viable cause of action for wrongful death exists in this case.

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.

In November, 2009, an 80 year-old man died following a fall from a Hollywood, Florida, drawbridge that opened while he was walking across it.

Witnesses indicate that, at first, he clung to the bridge's railing as it lifted into the air, but as a policeman on the scene rushed to reach him, he fell from an estimated height of 60 feet.

The bridge had flashing lights, a bell, and a gate to stop pedestrians when it was opened. There was also a security camera and live bridge operator on duty.

It was reported that the decedent was familiar with the drawbridge, as he frequently walked across it. He may have been wearing ear phones at the time of the accident. On the other hand, the live bridge operator may have been distracted by the TV that was in his office, and did not check for pedestrian traffic on the bridge before starting to raise it. When he was questioned, he could not explain why he did not see the man on the bridge.

The man's wife and three daughters sued a variety of defendants, both public and private, who were involved with the ownership or operation of the bridge. It was recently reported that the matter settled for $1.5 million.

New rules for Florida drawbridge operation are forthcoming.

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.

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.

The Associated Press reported "Child dies after 50-foot fall at Lakers game" that a two or three year-old child fell from a third tier luxury box at the Staples Center minutes after a Los Angeles Lakers - Golden State Warriors game on November 22, 2010.

Somehow the child was able to scale a clear safety barrier and fell onto arena seats below, hitting his head. He died soon after at the hospital.

Within an hour after the game, arena security officials could be seen examining and taking photos of a suite on the highest level on the west side of the building.

Who was responsible for what happened?

Where were the child's parents? Did they lose track of their baby?

What are the safety specifications that apply to arena architecture and design of seats and luxury boxes? Were they followed at the Staples Center? Was the safety barrier properly located and installed?

How would a two or three year-old escape the safety requirements and measures taken?

Any prospective Plaintiff should be conducting their investigation... as mentioned above, the potential Defendants were already at work documenting their side of this tragedy.

The Dieudonne's were moving into their new home in Miramar, Florida, when for a moment, they lost track of their son, Isaac. Isaac was found floating in an algae-ridden backyard pool next-door. The home had been foreclosed. He could not be revived.

The couple sued for the wrongful death of their son.

But who is most responsible for this tragedy?

As parents, they lost sight of their son. Or were the property owners, servicing companies and maintenance firms responsible for making sure that the vacant home was secure?

The Diedonne's attorney named over 20 individuals or entities as defendants in the wrongful death suit, as she followed a complicated paper trail. Like foreclosed homes nation-wide, the home where the boy died had been the subject of much legal action. At one point in time, the property had two separate foreclosure actions pending on it. In addition, one of the firms that generated some of the documents purportedly transferring ownership of the property is under investigation for "fabricating and/or presenting false and misleading documents in foreclosure cases" according to the Florida Attorney General's Office.

Miramar's City Code has safety requirements for pool fencing and enclosure. Neither safety requirement was met in the Dieudonne case.

This is not the only case where a child has drowned at a foreclosed and abandoned property. We should all be vigilant about these types of dangers, as the foreclosure boom is a crisis, with thousands of foreclosed homes nationwide that pose a safety risk attractive to children.

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.

According to the New York Post article Tree-limb snap kills baby in Central Park, a tree branch fell on a mother holding her child, posing for a photo, at about 1:30 p.m. on a windless day at the Central Park Zoo, on June 27, 2010.

The branch, reported to be 18 inches in diameter and four feet long, was thought to have fallen from a height of 25 feet. Horrified witnesses heard a creaking sound and then the sound of the branch landing. The 6 month old baby was killed and the mother severely injured.

It is unclear if anyone is responsible for this accident, unfortunately not the first of its kind in Central Park.

Contrast the facts from another Central Park tree fall fatality on February 25, 2010. A man walking home after his shift working as a busboy was struck by a decayed American elm, which had been identified in December, 2009, as dangerous ("Priority 1 Immediate Attention"), by the Central Park Conservancy, manager of the Park property. The scheduled removal of the tree on January 13, 2010, did not occur. The snow fall in late February put added stress on its limbs. . .

New York courts have ruled on a variety of cases involving fallen trees and branches. It has been said: "A property owner will be held liable only if he or she knew or should have known of the dangerous condition of the tree". The Court of Appeals, New York State's top court has ruled on the issue, affirming a lower court that "it is established that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree" Ivancic v. Olmstead (1985).

A 1977 Court of Appeals case held: "Constructive notice may be imputed to the property owner if the record establishes that a reasonable inspection would have revealed the dangerous condition of the tree" Harris v. Village of E. Hills.

It should be clear from the above that NY "tree fall" cases, like most premises liability matters, are fact driven. When did the owner know, should have known, or could have known by reasonable inspection, about a dangerous condition on the property?

A suit based on the June 27 tree fall fatality will depend on whether facts are unearthed showing knowledge of a dangerous condition on the part of the Central Park Conservancy. It seems clear from the reports that the Conservancy knew of the danger related to the elm tree which killed the busboy in February. A wrongful death suit has been commenced in Brooklyn Supreme Court