Central New York Injury Lawyer Blog

Laws should be fair and just, but are sometimes unfair and harsh. Think of the laws that allowed slavery, and later the Jim Crow laws. Think of the Nazi laws that allowed Jews to be arrested and deported or worse just for being Jews. Or think of the Roman laws that allowed Jesus to be crucified. All these laws were perfectly "legal" and they were carried out "by the book"!. So don't think that just because it's the law, it's right.

Those, of course, are extreme examples of unfair, harsh laws. But lesser examples of harsh, unfair laws abound in our law books even today.

The families of the 11 workers who died in the Deepwater Horizon explosion are now discovering how unfair and harsh one of our laws is. In their lawsuit against BP for the loss of their loved ones, they are limited, by a 90-year old Federal law, known as the Death on the High Seas Act, to "pecuniary loss" compensation, which consists mostly of lost income stemming from their loved one's death. They have no right at all to claim compensation for their grief, loss of care, comfort and companionship, and emotional suffering.

But when someone dies, his or her close family members lose far more than just money. Indeed, the emotional loss that death provokes is one of the most profoundly painful experiences a human can endure. Maritime law, however, does not recognize that loss, or compensate it. This harsh law will limit compensation to YOUR family, too, if you die at sea, for example in a cruise ship.

But here's good news: The BP Gulf of Mexico rig explosion that killed 11 workers has brought to the fore the harshness and injustice of this old law. As a result, a bill has been proposed in Congress, HR 5503, entitled "Securing Protections for the Injured from Limitations on Liability Act" (SPILL Act), which would, if passed, change this old, outdated law to (among other things) permit recovery of non-pecuniary damages (e.g., grief, loss of care, comfort, and companionship of the dead family member) by the family of a decedent killed at sea. You can read all about it on this CNN report.

It is time we recognize the gross injustice of denying a grieving family compensation beyond mere "pecuniary loss". But don't take it from me. Take it from Keith Jones, who lost his son, Gordon Jones, aboard the Deepwater Horizon rig. Gordon left behind a pregnant wife and a small child. Under current law, they will get nothing for their sadness, suffering and grief. BP won't have to compensate the fatherless children for the loss of their dad's love, guidance and nurture. Before the House Judiciary Committee, Gordon Jones testified that: "I want to say how offensive it is when the law recognizes only pecuniary loss in cases like these eleven deaths. . . Please believe me; no amount of money can ever compensate us for Gordon's death. We know that. But this is the only means available to begin to make things right."

Now let's shift the spotlight from Federal Law to New York State law. As a Central New York personal Injury and wrongful death lawyer, I am outraged and embarrassed to have to tell you that New York is one of the few States in the Union that does NOT recognize emotional loss in wrongful death cases. Compensation is limited to pecuniary loss. In other words, New York's wrongful death law is just like the Death on the High Seas Act that some in Congress are proposing to change. And it is just as outdated, unfair and harsh. And it is just as in need of change.

I have blogged about this before. Now's the time. New York should follow Congress' lead and revamp its Wrongful Death law.

This photograph was taken at the Geneva, New York YMCA swimming pool last Friday, June 18. That big kid in the middle who looks a lot older than the others is me. The occasion was the last Friday evening swim outing of the school year for the Boys & Girls Club kids of Geneva. Every Friday after work during the spring months I take about 11 of them with me in a van to the YMCA pool where I teach them how to swim and to safely enjoy the water. Most of them have never been in the water before they came with me. Some of them stay with me for several years.

Why do I do it? Lots of reasons, really. Giving back to the community. Really caring about children (I have five myself!). Paying back a debt I owe to the world for being so damn lucky in life. But here's another reason: To save lives.

You see, drowning is the second leading cause of accidental death among children. And one demographic in particularly at risk. Which one? Take another look at the photo. Yes, mostly African American kids. As discussed in a recent ABC news report, black children drown at three times the rate of white children. This is because while 60% of white children can swim, only 30% of black kids can.

As a Syracuse and Geneva New York area personal injury attorney, I also handle New York child drowning cases. These cases just drive me crazy, because the harm is so preventable! Usually the accidental drowning claim is brought against whoever was in charge of supervising the child that drown, or against the pool owner for not providing a secure, safe pool. Research shows that proper use and installation of barriers or fencing, as well as additional layers of protection, can prevent child swimming pool drownings.

But there is a layer of security that goes beyond proper supervision and proper pool safety. I am talking about teaching kids to swim. It's very simple, really: Kids who can swim usually don't drown, and kids that can't, often do, So in my little corner of the world, in Geneva, New York, I am helping kids, mostly black kids, learn how to swim away from those disturbing statistics.

What is the worst kind of defective product? A good candidate is a baby-killer. And that is what the Infanto Baby Slings "SlingRider" and "Wendy Bellissimo" (sold by several large retailiers such as Target, Babies R Us and Burlington Coat) turned out to be.

Today the federal agency responsible for consumer safety, the Consumer Product Safety Commission (CPSC), recalled more than 1 million Infanto baby slings after they apparently caused at least three infant deaths BY SUFFOCATION. The slings are especially dangerous for infants under 4 months old. Babies can suffocate in them in two ways: First, the baby's nose and mouth can get pressed against the sling's soft fabric, thereby blocking its ability to breathe (or cry out in distress). Second, if the baby is placed in the curved position (c-like), the baby's head can flop forward, chin-to-chest, reducing the ability of the infant to breathe (or cry out in distress). Small infants' necks are not strong enough to pick their head up out of this position.

This story is personally distressful to me because of my own blissful experience with baby slings. Baby slings became popular about a dozen years ago, when my boys were still infants. They are great because they allow on-the-go parents (like me and my wife) to bond closely with their babies as they go about their business. I remember a trip we took to New Orleans where I had my one-year old cuddled up against my chest as we strolled all over the French Quarter. He was so peaceful in that sling, with his little head peeking out over the lip of it, checking out the Bourbon Street scene!

I don't want to even try to imagine the horror of a parent who, feeling her warm, peaceful baby snuggled up against her chest, suddenly starts to realize that there is something TOO peaceful about the baby . . . .

Nothing can replace a lost child. It is among the most devastating of human experiences. We at Michaels & Smolak have had the dreadful duty of bringing child wrongful death cases to trial for grieving parents. Sadly, New York wrongful death law allows for NO COMPENSATION to parents for the DEATH of a baby. Incredible, but true. Read my prior blogs about this most horrible law by clicking here and here. But a parent whose baby suffocates because of a defective product has a right to sue the manufacturer, and others involved in the products distribution, for the PAIN AND SUFFERING the infant must have endured while suffocating to death.

A manufacturer of a defective product is strictly (automatically) liable for the harm its dangerous product causes, even if the manufacturer had no reason to know that the product was dangerous. What matters is only this: Was the product UNREASONABLY DANGEROUS? If it was, then the manufacturer is liable, regardless of how careful the manufacturer was in designing and manufacturing the product.

I have hated writing this blog, but I feel it is my duty both to warn my fellow Central New York and Syracuse area parents of this dangerous product, and inform them of their rights, should, God forbid, tragedy strike their family.

Today I read news reports that, on Friday evening, December 5, a woman drove her car into a pedestrian in Cicero, Onondaga County, New York. Twenty-nine-year-old Leann Doyle of Canastota struck 51-year-old Joanne Schoenfelder of Bridgeport while she was standing in front of a residential mailbox on Route 298. The car accident happened at about 7:30 p.m. The Ciceroauto accident victim was taken by ambulance to SUNY (University Hospital) in Syracuse where she was pronounced dead. It is not clear whether the pedestrian killed by the car was standing in the roadway or on the shoulder.

I didn't read these news reports like a NORMAL person. Instead, by force of habit, my personal-injury-lawyer brain began dissecting and analyzing them as I read. Let me share with you my legal thoughts as I read of this tragic accident.

First, without knowing more about this case, it is hard to determine whether the driver, pedestrian, or both were at fault. If the pedestrian's family files a claim for wrongful death and conscious pain and suffering against the driver, the jury will be allowed to tag each side for its percentage of fault. This directly affects the verdict. For example, if the jury determines the case is worth $1,000,000, and that the driver was 70% at fault, but the pedestrian was 30% at fault, the plaintiff (pedestrian's family) would end up with only 70% of the $1,000,000, which is $700,000. The verdict is "discounted" to the tune of the victim's percentage of fault.

In this Cicero case, what would make the pedestrian "at fault", at least a little? Perhaps she was standing out in the roadway, rather than on the shoulder, or was wearing dark clothing (it was night time), or was standing with her back to traffic, or was talking on her cell phone, was distracted, was not watching traffic, etc. Believe me; the driver's insurance company lawyer will be combing the evidence for such arguments.

I also thought about how the proof would go at trial. Obviously, the dead pedestrian can't testify. The driver is thus the only living eye witness to the accident. Surely she will give testimony favorable to herself. Won't this make it easy for the driver's insurance company to beat the pedestrian's claim?

Not so fast. New York State courts have adopted a rule known as "the Noseworthy Doctrine" (first established in the case of Noseworthy v City of New York, 298 NY 76), which permits the jury to draw an inference in favor of the dead victim of a car accident such as this one. Since the dead victim can't speak for herself, the law allows the jury to tip the scales a little in her favor.

The physical evidence at the scene may also help the pedestrian's case. For example, the length and location of the skid marks can help determine the speed and location of the car in the roadway, and the physical damage to the car and injuries to the pedestrian can help determine the location of the pedestrian.

In sum, this pedestian's family needs to quickly retain a good wrongful death lawyer who understands New York State motor vehicle accident law and how to properly investigate such claims.

Let me tell you about another heartbreaking wrongful death settlement. Heartbreaking for two reasons, as I will explain below.

A middle-aged married woman was walking to work in Geneva, Ontario County, New York. To get to work she had to cross Routes 5/20, also known as Hamilton Street. She crossed in a crosswalk, which meant she had the right of way, and vehicles traveling down Routes 5/20 had to yield to her. But the driver of an 18-wheeler, who was traveling along Routes 5/20, mowed her down. She did not survive.

Her heartbroken widower sought out a Geneva

The widower's emotional loss dwarfed his economic loss. But New York's wrongful death law turned a blind eye to all that grief, and,instead offered him only compensation for his economic losses. But he didn't even want compensation for that! He wanted compensation for his REAL loss; his emotional loss.

I am sad to report that he did not get compensation for that, and therefore, he did not get justice. Chalk another one up to New York's very wrongful,

Posted by Michael Bersani | Permalink | Email This Post | Comments (0)

Posted In: Wrongful Death

Ok, imagine this: A speeding car strikes and instantly kills your 3-year-old child as you watch helplessly from a nearby lawn in Seneca County. Turns out the speeding driver was drunk. Your 3-year-old had wandered up to the road as you were distracted by your 2-year-old who was throwing a tantrum. Sure, in hindsight you should have kept a better eye on him, but there is no way a sober driver driving at the speed limit would not have been able to brake in time and avoid running over your son.

Your world is turned upside down, your heart is literally broken, you are devastated. When the shock and horror subside, and the grief that will engulf you forever takes hold, you go to a Central New York wrongful death lawyer. You want justice. You want compensation. You want to make the driver pay. What does he tell you?

If your New York lawyer is both honest and brave, he will tell you the sad truth; your case is worth almost nothing. That's right, almost nothing. Why? Because New York State's wrongful death law does not allow compensation for the emotional grief of surviving family members. It allows compensation only for "economic" loss, that is, the loss of economic support the dead victim would have provided, had he not died, to his surviving family members (as well as some incidental expenses such as medical bills, funeral bills). And since your 3-year-old did not support anyone, there is no "value" to your claim.

The facts I described above are very similar to a real case I recently handled. I had the sad duty of telling my clients, the grieving parents of a dead three-year-old, that New York State law did not allow them compensation for their grief. As a father of five myself, that was hard news to break to those poor parents.

Now let's change the facts. Let's say that, instead of killing your child, the drunk driver had merely maimed him --- caused him to lose a leg. Now what? Now you can sue that driver for big bucks --- you are allowed to claim compensation on behalf of your child for a lifetime of suffering and diminished enjoyment of life. Your case is worth millions.

So the drunk driver is much better off if he kills your three-year-old than if he merely maims him. Make sense?

Of course not. All fair-minded people who have examined New York's wrongful death statute consider it an abomination, one of the most unjust laws on the books.

So why doesn't New York change it? The answer is simple: The insurance and corporate lobby won't let them. The New York Insurance Association has been particularly forceful, and has lobbied colossally against any changes in the law that would grant "non-economic"(emotional suffering) damages for the wrongful death of a child.

Nevertheless, since 1995, every year some brave New York legislators have tried to change this unjust law. There is such a Bill recently pending in the New York State Assembly, sponsored by Assemblyman Helene E. Weinstein (Democrat, 41st Assembly District, Brooklyn). The Bill, if made law, would amend New York's Wrongful Death Statute to harmonize it with the majority of other states' wrongful death laws by allowing compensation for the "grief and anguish" of surviving family members. The Bill eloquently notes that under the current, harsh law, "families who suffer the loss of a loved one must endure a second blow, when they discover the civil justice system is unable to compensate them for their emotional loss" and that it sadly "prohibits the grief-stricken family from recovering damages for their emotional suffering from the wrongdoer."

Could this be the year that such a Bill becomes law? Let's hope so. I would rather not have to try to explain to any more grieving New York parents that under New York law their child, and their grief, is worth nothing!

To learn more about wrongful death cases in New York, go to our main website, practice areas, wrongful death.