New York Wrongful Death Lawyer Blog

Saturday's Democrat & Chronicle reported "Snowmobiler Killed in Riga". The accident happened on Thursday night, February 10, 2011, at about 10:00, when a car, traveling westbound, crossed over to the eastbound lane and struck two snowmobiles head-on, killing one person.

Jason Arnold, age 30 was driving the car. The snowmobiler was Thomas Bushman, 37 years old. He was thrown from his sled and died at the crash site.

The accident happened on a narrow bridge over railroad tracks which did not allow the snowmobiles any room to maneuver when faced with an oncoming car.

The newspaper article concluded "no charges had been filed" and "the investigation is continuing"; more information is now available.

The Police Accident Report, form MV-104A from the NYS Department of Motor Vehicles, completed by the Monroe County Sheriff's Office gives more details of the occurrence.

The report includes a section "Apparent Contributing Factors - Human" which lists Mr. Arnold's "vehicle 1" with numeric codes indicating "Fell Asleep" and "Failure to Keep Right". The report also mentions that a MCSO Investigator responded to the scene and interviewed Mr. Arnold and a witness to the accident. Although "Alcohol Involvement" was not indicated on the form by the reporting deputy, another deputy apparently obtained a blood sample from Mr. Arnold. Toxicology tests will presumably be run on the blood to determine if Mr. Arnold was under the influence of alcohol or drugs at the time of the accident.

To Mr. Bushman's family it probably matters little if Mr. Arnold was driving while intoxicated, or simply was so tired that he fell asleep at the wheel. It makes a big difference to Mr. Arnold however, as he could be charged with vehicular manslaughter or vehicular assault as a result of an alcohol- or drug-related driving violation that caused Mr. Bushman's death.

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.

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.

Bad luck killed the eight spectators watching the annual "California 200" off-road race in the Mojave Desert on August 14. Almost all of the eight were in their twenties.

Off-road truck racing is a sport with dedicated spectators, who line the sand track through the empty desert scrub and outcroppings to watch drivers and machines go as fast as possible, all without safety barriers. Some intrepid spectators get as close as four feet from the path of the racing trucks.

In this instance, a competing truck hit a jump or series of bumps, and careened off-path and flipped into spectators lining the track.

It was reported that tens of thousands of people lined the 50-mile track. The spot where the accident occurred was called "the rockpile", popular because trucks often became airborne as they raced by.

When the truck involved stopped, it was resting on its roof, with people pinned underneath it.

To paraphrase a famous Justice Cardozo quote: "Nothing happened except what common experience tells us might happen at any time as a consequence of the sport..."

Assumed risk is probably not fully appreciated by off-road truck racing fans, given the seemingly low chance of accident. Obviously statistics do not matter at all if your friend or family member is the unlucky party to get hurt or killed.

The Associated Press reported "NY Skier's Heirs File Claim Against Idaho Rescuers" that the Teton County Sheriff's Department, Teton County and Idaho Search and Rescue, with others, apparently were too slow in locating and retrieving a skier who had gotten lost outside the bounds of the resort where he was skiing.

These events happened last year to a 46 year old man, who while successful using his cell phone to call for help, eventually succumbed to hypothermia after being found.

As in any alleged sports or recreation wrongful death matter, one has to consider the defense of "assumed risk". A participant "engaging in a sport or recreational activity... consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation".

The plaintiffs claim that the resort's boundaries were not clearly or adequately marked, and that Idaho rescuers failed to communicate with Wyoming rescuers trying to locate the man.

Without knowing more, and because these matters are very "fact driven", I am skeptical about the viability of this suit [seeking $5 million].

The decedent went skiing (alone?) in a remote area. He strayed from the trail. Did he appreciate the risk of getting lost? He had a cell phone and was able to use it. We do not know if he was an experienced skier and if he was properly clothed and equipped for survival in the mountains and the weather.

Presumably all the rescuers did their best to reach him in time.

As a public policy issue, I would not be in favor of charging rescuers with liabillity unless their failure to perform properly was "grossly negligent".

People may ask "Why sue for wrongful death? No amount of money can ease our loss!".

The family of Dale Lloyd II, a 19 year-old football player for Rice University, whose death, following his collapse at practice, was linked to sickle cell trait, sued to effect a change in policy.

In the past ten years, the deaths of eight football players have been linked to the sickle cell trait. Mr. Lloyd was not tested for the trait by the Rice Owls, who have since initiated testing of their athletes.

On April 13, 2010, as part of the wrongful death settlement, the NCAA agreed to offer its athletes three options regarding sickle cell trait: be tested, show that they were tested, or sign a release refusing the test.

Through the loss of their son, the Lloyd family sought to protect other athletes and their families from a similar fate. They have succeeded. Athletes, coaches, doctors and trainers now receive information on the danger of sickle cell.

In Coogan v. D'Angelo, decided on October 2, 2009, the Appellate Division, Fourth Department, granted the defendant's summary judgment motion, ruling that a wrongful death suit was barred by New York State's "Recreational Use Statute".

A youth, driving an all terrain vehicle onto unfamiliar property owned by defendant D'Angelo, struck a metal cable strung across a path, fatally injuring him.

The appeals court affirmed the decision of the trial court that the landowner-defendant was immune from liability for negligence based on the recreational use statute, General Obligations Law §9103[1](a), which states, in part: an owner, lessee or occupant of premises..., owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;

NY courts had previously ruled that GOL §9103 applied also to landowners that attempted to prevent members of the public from using their lands.

"Recreational Use Statute" is a term used to describe and promote the free use of private lands by granting landowners who allow access to the public, immunity from liability for personal injuries suffered by persons pursuing recreational activities on the owner's land.

While the appellate court made mention that ATV use is specified (as I have highlighted above) in the NY law, I wonder if this case was appealed because the plaintiff (father of the deceased youth) was upset by the mechanism of fatal injury, by "clothesline".

Landowners are not required to keep their premises safe or to warn visitors of hazardous conditions, however they may not deliberately endanger people who enter on their property.

While I understand the legal reasoning and public policy reaffirmed in this appeal, it is not easy to accept the loss of the youth; a warning of some kind may have prevented his death.

APNewsBreak reported a wrongful death settlement reached between the parents of a sophomore coed and Dartmouth College relating to a ski lesson the young woman was required to take as part of her college curriculum.

During her lesson, in February, 2004, she was left alone on a difficult ski trail at the ski slope. She was not wearing a helmet. She skied off a ledge, and died from her injuries.

Her parents sued for negligence and wrongful death.

Some of my recent posts have discussed "assumption of the risk" for those who participate in sports, such as the Georgian luge racer at the Olympics, and the snowboarder at Bristol Mountain, both of whom died from injuries they sustained.

Although this article does not specify so, it would appear that the unfortunate coed was not familiar with skiing or the risks inherent in the sport. Awareness of the risk or danger must be assessed against the background, skill and experience of the participant. She was left alone on a ski slope without supervision and without safety protection that some would call essential, especially to a newcomer to the sport, who forseeably could easily lose control of her speed on skis, or her direction, or both.

Dartmouth College had a duty to train and supervise its student when it required her to take the ski lesson. It had a duty to explain to her the risks inherent in the sport, and safety procedures she would employ if she skied too fast or lost directional control. It also had a duty to properly outfit her with safety equipment to prevent injury: boots, bindings that release skis when stressed in the wrong direction, poles, and helmet to prevent head injury.

Dartmouth denied responsibility for the death, calling it "tragic".

The settlement amount is confidential.

AP reported that a woman died Sunday, February 21, 2010, at a NHRA Arizona Nationals drag race in Chandler, AZ, when a tire came loose from a dragster that went out of control and crashed.

Recent posts have centered on the "assumption of the risk" by participants in sports. What about the spectators at sporting events? Are they taken, under the law, to have assumed the risk of spectating? If one attends a hockey game, does one assume the risk of being struck by a puck? How about baseball? Some foul balls are line-drives into the stands along the first and third base lines. If one attends a golf match, does one assume the risk of being struck by an errant golf shot?

The answer is "Yes", New York Courts long ago considered these issues. The famous quote of Judge Cardozo from the "Flopper" amusement ride case is: "The timorous should stay at home...".

"One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball" (Murphy v Steeplechase Amusement Co., NY Court of Appeals (1929).

Query, does a spectator at a NHRA drag race appreciate or accept the danger that she could be injured by a tire or other piece of a dragster that came loose and airborne? Is a loose tire becoming a volatile projectile a forseeable event? How often does that occur? Should the owner/operator of the facility have erected barriers to protect race patrons? Where in the facility was this unfortunate woman when she was struck by the tire?

It appears that this matter, should it be pursued, will be "fact driven".

The civilized world was saddened to learn of the accidental death, during a practice run, of Olympic luge participant Nodar Kumaritashvili.

I have not watched the video of Kumaritashvili flying into a support pillar that held a canopy and lights on the track. The pillar was not padded in case a luge, bobsled or skeleton racer was thrown off course.

The Whistler Sliding Center opened in 2008. The facility was marketed as "faster, steeper and more intense than any track in history". According to many media sources, there have been numerous sled crashes since the facility opened, including some during the Olympic warm ups.

Was this a wrongful death, or had the athlete assumed the risk of this dangerous sport?

An argument can be made that the failure to pad a pillar when it was entirely foreseeable that a luge, bobsled or skeleton racer might leave the track at a high rate of speed was negligent, particularly on this track, where accidents were commonplace.

On the other hand, applying New York law in this instance, pursuant to the doctrine of primary assumption of risk, a participant "engaging in a sport or recreational activity... consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Turcotte v Fell, 68 NY2d 432, 438-440 [1986]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958-959 [2008]).

Is anyone at fault for this man's death?

Was the track designed to be too fast, too steep or too intense?
Was the track operated as too dangerous to sledders?
Should the pillars adjacent to the track have been padded?
Would padding on the pillars have made a difference in this case?
Did the sledders assume the commonly appreciated risks of their sport on this track?
Was the risk involved on this track more than what was "commonly appreciated"?

Given the history of accidents on this track, this fatal one cannot be dismissed as a "fluke" occurrence; some degree of responsibility needs to be assigned to the party or parties involved.