New York Wrongful Death Lawyer Blog

The Los Angeles Times has reported that the commuter rail system and one of its former contractors (Connex) have made an offer of settlement in the crash that killed 25 people and injured over 135 others.

All personal injury and wrongful death suits involve two issues: liability and damages. Once liability has been established, and only if it has been determined, the question of damages becomes relevant. In this horrific case, liability is conceded as the NTSB determined that the accident was caused by a "contract" engineer who was texting on his cellphone at the time he ran the commuter train through a red light, crashing head-on into a freight train.

The settlement is being offered just before a trial for damages is to be held. The amount of the offer, $200 million, is the federal government's liability cap for passenger rail accidents.

The offer by Metrolink and Connex is clearly not enough money to "make whole" the persons injured and the families of those killed in the crash. It is offered by the defendants to bring victims and their families closure (and money) soon, rather than having to wait, possibly for years, for litigation to conclude. It also would shield the defendants from any additional liability

According to the article, a Congressman in whose district many of the victims resided, will introduce legislation to raise the federal cap.

All the plaintiffs need to be advised by their attorneys on what stands to be one of the costliest rail accidents in history. The path is not clear.

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.

As mentioned before in this blog, for a wrongful death action to be properly initiated, a personal representative needs to be duly appointed for the decedent's distributees. In New York State, the Surrogate Court is the court that handles such appointments.

I have e-mailed the Chief Clerks at each NY county Surrogate Court, requesting information on the number of filings for wrongful death for 2009. Twenty-six of sixty-two court clerk's have responded:

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.

As an update to my August 13, 2010, entry about the wrongful death of an autistic man who was left for hours in a locked minivan, on a record hot day, by care providers: residential counselor Stacey Strauss, 40, was charged last week with felony neglect of a care-dependent person, involuntary manslaughter, and recklessly endangering another person.

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.

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.

Having written two wrongful death entries about persons dying of hypothermia, one a lost skier, the other a Buffalo woman whose utilities were shut off for non-payment, I now write an entry on death by hyperthermia, too much heat.

Human beings understand how unpleasant it is to be too hot. People are usually very concerned when they notice a child or pet left in a closed automobile in a sunny parking lot on a hot day.

A 20 year-old severely autistic man was left, on July 24, 2010 (the hottest day recorded for the year), in the rear seat of a van which had returned from a day's outing. The van was owned by Woods Services, a Langhorne, PA, facility that provides a variety of services for people with special needs.

The coroner opined "He was probably dead within an hour with those temperatures." The man was noticed as missing when a new shift arrived to work at 4 p.m.; he was found, lying on his back in the Kia Sidona, at 5:35.

When considering a wrongful death case, we look for a "wrongful act, neglect or default".

There surely was neglect in this poor man's care.

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".

Two young men and a young woman died when a car they were in slammed into a utility pole on a curve in the road, in Oakfield, Genesee County, early Saturday morning.

Police believe that speed and alcohol contributed to the single car accident. It was reported that investigators found beer bottles and beer tent tickets at the crash scene.

Matthew Ware, his friend Joshua Durham and Mr. Durham's girlfriend Allyson Galens, were all in their early 20's. Each of the three was very well regarded in the community.

It appears that Mr. Durham was driving at the time of the crash. Mr. Ware's family has said, publicly, that they "do not blame the driver" and "hope that people will learn a valuable lesson" from this tragedy.

WORD

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

As mentioned in the most recent entry about the Ducks/barge collision, on Friday, July 9, a team of eleven National Transportation Safety Board investigators began their investigation into the accident.

From interviewing the duck-vessel's captain, the NTSB learned that he had tried to send a radio distress signal to the tugboat, and also that he had a non-working airhorn onboard, useless to warn river traffic.

The NTSB also spoke with the duck-vessel's deckhand and 16 survivors, before turning to focus on the captain and crew of the tug boat.

Many questions could be posed to them: Was the tug's radio tuned to the ship-to-ship channel, and the emergency channel? Was anyone on the tug monitoring the radio? Was the tug using its radar? Was the river "choppy", causing clutter on the tug's radar and making it difficult to see small boat traffic on the radar screen? How wide was the channel? How much small boat traffic is common on the Delaware River at Philadelphia-Camden?

Where were the tug's crew members stationed at the time of the accident? Because of the tugs position by the barge, pushing it from one side or "hip", was there a significant blind spot? Was the view up-river unobstructed? Was there a lookout on either the tug or the barge?

Inland Navigation Rule 5 ("Rule 5"), 33 U.S.C. §2005, requires vessels to post a proper lookout. Answers to the above questions will help the NTSB decide if a proper lookout was posted.

Clearly, one or both parties did not behave in a prudent and careful manner, or this collision, sinking and deaths would not have occurred. It will be up to the NTSB to assess fault and report on this matter.

An empty, unmanned and unmotorized barge being pushed by a tugboat on the Delaware River, struck and sank a popular tourist vehicle in Philadelphia last Wednesday, July 7.

The Ride the Ducks amphibious vehicle, occupied by 35 passengers and two crew members, rolled over and sank in 40 feet of water, spurring a frantic rescue by eye-witnesses both in boats and on shore. The Ride the Ducks vehicle had experienced mechanical problems, was disabled without power, anchored on the river, and waiting for assistance, when struck.

All occupants on the Duck were plucked from the river, except for two young tourists from Hungary, who still have not been found.

Ride the Ducks is a Georgia corporation, which has about 90 vessels in several cities. It has operated in Philadelphia since 2003, where it currently has 15 vehicles.

The barge involved was city-owned. It was being pushed upriver by a private tug company, K-Sea Transportation Partner LLC, which owns the tug boat. K-Sea is headquartered in East Brunswick, NJ. The company said that the tug's crew of five all had proper Coast Guard licenses.

Being amphibious, "hybrid" vehicles, the Ducks are subject to a variety of local, state and federal laws and regulations. They are regulated as a business operation by the City of Philadelphia. They are subject to the motor vehicle laws of Pennsylvania while on streets and highways. Afloat, the Coast Guard regulates the Ducks, mostly by conducting inspections for safety compliance.

This tragedy will be investigated by the National Transportation Safety Board.

My guess is that there was no forward lookout stationed on the barge at the time of the collision, and that the tug's forward view was impaired by the barge, riding "high", as it was empty.

As mentioned in previous blog entries, passengers who are killed while riding in motor vehicles almost always have strong wrongful death claims, as they could not have participated in the "wrongful act, neglect or default" that caused their demise. This would apply to the two dead students in this case.

The U.S. Federal District Court is likely the best jurisdiction to bring suit for wrongful death on behalf of the two young decedents from Hungary, should settlement negotiations not prove to be fruitful.

At the outset, I had no idea of internet interest in the topic "wrongful death", but I did know that many survivors lives are unfortunately altered by a "wrongful act, neglect or default" that takes a family member from them.

In six months, my blog has recorded over 1,700 "views".

Eighty percent of this blog viewers "arrive" via search engines, 10% are "direct traffic" and the remaining 10% are referred from other sites.

Eighty-eight percent of these views were recorded in the US. Although people in all 50 states have visited the blog, New York (778), California (146), Massachusetts (69), Florida (52), Pennsylvania (42), New Jersey, Texas and Ohio (30+ each) were most heard from.

Other than the "home" or title page, I was interested in which blog entry topics received the most views. Surprisingly to me, the most viewed entry over six months was MIT & the Suicide of Elizabeth Shin (April, 2000). I do not know if that is so because "MIT" is such an internet draw, or suicide... The second most viewed entry was Hempstead Woman Killed By High Teen Driver: Kayla Gerdes about a woman who was killed while mowing her front lawn. The third most visited entry was Rochester Area Man Falls to Death at Construction Site. Fourth in number of views was Bristol Mountain Snowboard Fatality: Assumed Risk or Wrongful Death?, and then Olympic Luge Fatality: Assumed Risk or Wrongful Death? .

Finally, after all these entires, the next popular views were law practice questions: Necessary Elements of Pleading in New York Wrongful Death Action and Q&A for Potential New York Wrongful Death Lawsuit Plaintiffs.

Although death is always a serious matter, I have tried to include some "curiosity" entries, like Mom of Teen Killed By Filing Cabinet Sues Doctor an unfortunate girl pinned between a filing cabinet and a car, or Wrongful Death by Poligrip Denture Cream? (zinc poisoning), or Man on Beach Struck & Killed by Airplane: Bad Luck or Wrongful Death? , or the seemingly frivolous Cause of Death: I.R.S. Raid? or a host of others (pick your own!).

I have also purposely avoided some of the more outrageous "celebrity" wrongful death cases: Anna Nicole Smith, Michael Jackson, Notorious BIG, and the woman who allegedly was "outed" by Nancy Grace before she committed suicide.

Thanks for reading!

Saint Peter, and accident investigators, would ask the two men, ages 28 and 39, what they were doing at the time of their deaths, in a GMC Yukon, on Saturday, June 26, at 4:30 a.m., flipped upside down, and six feet off the ground, when they hit a building located in northeast Rochester and caught fire?

According to the Democrat & Chronicle article, responder Fire Chief John Kearney declared that "it was obvious the vehicle had been traveling at a high speed".

Barring a Toyota-type equipment failure, it would appear that the speed involved a voluntary "wrongful act, neglect or default" on the part of the driver. Typically passengers in automobile fatality cases, whether single or multiple vehicle crashes, are not responsible for the result, unless somehow they hinder, hamper or prevent the driver's ability to control the vehicle.

Passengers killed while riding in vehicles driven by others have strong wrongful death liability cases.