New York Wrongful Death Lawyer Blog

Lawyers for the families of the two young Hungarian tourists who died after the collision between the duck-boat and a garbage barge have filed suit in PA state court, against both the tour operator and the tugboat company.

Attorneys claim that the deaths were senseless and preventable. Punitive damages are being sought.

I would guess that punitive damages may apply in this case, given the many safety measures that appear to have been violated by both vessels:

• a non-working airhorn on the duck boat;
• attorneys charge that the dead were trapped in the boat by the canopy of the duck boat; an NTSB report on a 1999 duck boat accident said that canopies on the amphibious vessels were a safety threat and should be removed;
• no look-out posted on the barge (violation of statute);
• attorneys received an anonymous tip, that at the time of the collision, the tug's helmsman had turned the volume of the vessel's marine radio down so he could talk on his cell phone; the duck boat's distress message went unheard.

Perhaps criminal charges will be considered by authorities concerning the helmsmans' lack of concern for safety on the river.

Punitive damages may be awarded in a variety of legal causes, including wrongful death cases. The purpose of punitive damages is to punish the defendant, and to deter repetition of the same conduct.

Under New York law, punitive damages may be awarded where a defendant's conduct, even though unintentional is "grossly negligent, or wanton or so reckless as to amount to a conscious disregard of the rights of others", as contained in the Court of Appeals case Home Insurance Company v. American Home Products Corp., decided in 1990.

A recent wrongful death blog entry Fatal Gunshot to Head: Part 2 - $7M Punitive Damages Award Reduced , mentioned a jury award of punitive damages being adjusted by an appeals court, where a policeman's gun went off, killing a man unintentionally, but where the jury found the force used "excessive" and his conduct to be "wanton, reckless or malicious".

A 2007 appeals case, Guariglia v. Price Chopper and Schady, serves as another illustration of wrongful death and punitive damages. Apparently Mr. Schady worked as a pharmacist at Price Chopper, a NY grocer. He pled guilty to the criminally negligent homicide of his girlfriend's two-year-old child because he left a vial containing valium and cocaine unsecured and within easy reach of the child, who found it, ate it and died from it.

A court awarded the plaintiff, the child's father, $750,000.00 and the appeals court affirmed the amount.

Not only was the defendant convicted of a felony for his indifference to human life (as he admitted during his plea allocution to his awareness that if ingested by a child the contents of the vial would probably be lethal), but was punished civilly for it.

The appeals court noted that although the defendant had surrendered his NY pharmacy license, he was still continuing to practice pharmacy in New Jersey.