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Articles Posted in Wrongful Death

drunk teen.jpgFraternity hazing stories are legendary for their outrageous silliness and, unfortunately, their sometimes tragic outcomes. Pledges are sometimes required to consume large quantities of alcohol, do embarrassing and humiliating things in public, face harsh deprivations, weather inclemency, or paddle beatings.

This topic is of interest to me now that my own kid is off to college this year. And he wants to join a fraternity. Am I worried about hazing? You bet.

I don’t have too look far to find stories that make me lose sleep. Cornell University, right down the road from my office in Auburn, New York, has had its share of hazing tragedies. In 2011, for example, some pledges were blindfolded and bound at the wrists and ankles. They were then driven to a town house somewhere on campus where they were drilled with Fraternity’s history trivia questions. A wrong answer triggered forced shots of vodka. One of the pledges – who seems to have been a poor Fraternity historian — passed out, was loaded into the back seat of a car, and brought back to the Frat house where he was dumped on a couch to “sleep it off”. The next morning the cleaning crew found him dead, choked on his own vomit.

car upside down in river.jpgWarning: This is a sad story.

A man’s 16-year old daughter was killed when her car veered off a bridge, overturned, and flipped into a creek. After the accident, the authorities agreed to install a guardrail on the bridge to prevent similar tragedies.

Thirty days went by and still no guardrail. The grieving father – who could not stand the sight of the unprotected bridge – decided to take matters into his own hands. He began to build a temporary guardrail. As he was in the act of doing so, the authorities asked him to stop. He refused. He just could not stand to see another car go by unprotected.

flowerongrave.jpgNew York, unlike many other States, does not allow the family of a wrongful death victim to recover for emotional grief. All they can really recover is “economic loss” (medical and funeral bills, loss of financial support, etc.) and compensation for the decedent’s “conscious pain and suffering”. In many cases, however, the death is so quick there is no real “pain and suffering”, only a short period of fear or anxiety about the impending death.

No matter how short, however, any New York personal injury lawyer worth his or her salt won’t underestimate the value of pre-death terror compensation. In terms of dollar-per-second of suffering, no claim is worth more. Why? Because the jury wants to do something for the family and, if the death came on quickly, there is often no other way to compensate the family.

For example, let’s say your loved one was hit head on my a negligent truck driver who crossed over into her lane. The force of the collision instantly killed her. The jury thus won’t be able to give you – the family – anything for her “pain and suffering” after the collision. But it is pretty obvious that, at least for a few seconds before impact, your loved one “saw death coming” and was probably very fearful of what was about to transpire. In New York, those few seconds of anguish are compensable as “pre-impact terror”. Most juries will make those few seconds of anguish very expensive for the negligent truck driver’s insurance.

There has been much ado recently about a Nascar incident in my neck of the woods (Ontario County, New York State) in which Tony Stewart struck and killed Kevin Ward Jr. (See video of the incident above). An Ontario County Grand Jury recently declined to indict Steward. The Grand Jury determined that there was simply no probable cause to believe that Stewart intentionally or even recklessly killed Ward. Ontario County District Attorney Tantillo also announced for the first time that Kevin Ward had marijuana in his blood at a level that would have “impaired judgment”.

So Stewart has been cleared of criminal wrongdoing. But can Ward’s family nevertheless sue him for damages for wrongful death? Such a lawsuit might be in the works. Ward’s mother was recently quoted as saying that Stewart “intentionally tried to intimidate Kevin by accelerating and sliding his car towards him” and that she was considering “other remedies” since no criminal charges will be filed.

Remember the OJ trial? The jury acquitted him of murder (“if it doesn’t fit, you must acquit”) but then the family of Nicole Simpson sued OJ for wrongful death and got a huge verdict. Can the same thing happen here?

gorge in ithaca.jpgI came across an article recently in the New York Law Journal titled “Drunken Run Could Leave Cornell Liable for Fatal Fall”. It’s about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named “Fall Creek Gorge trail”.)

Cornell moved for summary judgment (to have the case dismissed) based in part on New York’s General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.

Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not “hiking”. The judge relied on a definition of “hiking” in the Department of Environmental Conservation’s regulations, which says hiking is “walking through trees for pleasure or exercise”. Here the kid was not “walking for pleasure”, the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.

judge.jpg.jpgJudges, like most people, have a hard time admitting they’re wrong. Well, maybe even a harder time than most people. That black robe is an ego-inflater. A lowly lawyer gets elected, dons the robe and — voila! — he is suddenly addressed as “your honor”. People stand up when he walks into a room. You get the picture.

That’s why an article in the New York Law Journal — titled “Judge Admits Mistake and Slashes Damages” caught my eye. The article is about a judge who admitted he was wrong without having to be told so by an appellate court. He said his original decision – which awarded $1 million to the children of a deceased medical malpractice victim as compensation for their lost future financial support and parental guidance – was “misinformed”, and then slashed the award down to $150,000.

Ouch kids!

images.jpgThere is no true justice on this earth. Believe me, I’m in the justice business, so I know. And it’s not our fault. Our justice system, even the much decried personal injury law system, does the best it can. But it still falls short.

Take the Boston Marathon explosions. We don’t know who did it yet, but let’s assume they’re caught and end up in jail or on death row. Can they be forced to compensate their victims or their surviving family members for their life-long wage loss, medical expenses, pain and suffering, etc.? Hell no. I can almost guaranty it. Why not? Well, if the bad guys are homegrown (a la Timothy McVeigh), they will have shallow pockets. They are crackpots with nothing to lose. No big bank accounts to go after. On the other hand, if the terrorists turn out to be foreign operatives (a la Bin Ladin), they may have assets, but they will be hidden away in some remote spider hole half way around the world. You can never get to them.

That’s why it is unlikely that the victims will even bother suing them. Instead, if they choose to sue anyone at all for their personal injuries, it will probably be the local companies or officials who, through security lapses or other negligence, may have allowed the attacks to happen. I am not saying there were any security lapses — in fact there probably were not. This kind of attack is probably impossible to prevent. But if there were security lapses that allowed this to happen, then those responsible would be targets worth going after because they would likely have insurance or assets within reach.

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for courtroom.jpgJust in case you were wondering how a New York legal malpractice case works (come on, admit it, you were wondering about that all day!), I have a “case study” for you.

I recently sued a lawyer on behalf of a widow and her child. I took over their case after the lawyer had mishandled it. The facts of the mishandled case went like this (in simplified form): a public official had, through his negligence, killed the widow’s husband, but before he died, he went through a terrible amount of agony and suffering. This meant that the widow had two claims:

One claim was for “wrongful death” (“WD”), which mainly means a suit for lost income. The concept of the WD suit is that, had the widow’s husband not been killed, he would have continued supporting her and their children, but now he was dead, and dead men don’t pay the bills.

firefighters.jpg.jpgJust before jury selection a few months ago, I tentatively settled a complex Syracuse New York wrongful death case I was about to try. For the settlement to be final, we needed Onondaga County’s legislature to approve it, and several layers of workers’ compensation approval, too. We finally got the last stamp of approval last week.

The case, which has bounced its way through the court system for more than 8 years, and went up on appeal twice, generated a lot of press, not only locally, but nationally, especially in firefighter publications. It is believed to be the only case where a court has ruled that a firefighter, and his or her employer, can be held liable for negligently issuing firefighting instructions or orders that end up killing or injuring another firefighter.

Yes, I am proud of this win. It took years of hard work, innovative legal arguments, the scaling of the high and thorny firefighter “red wall of silence”, untold hours of preparation (ask my wife and kids!) and, of course, a large dose good luck, too. This blog post is a kind of “scrape book” for the case, and that’s why I am listing below a few of the headlines this case generated over the years (you can read the full articles by clicking the headlines):

Justia Badge Rating
AV Preeminent
Bar Register - Preeminent Lawyers
Avvo Rating
The Best Lawyer in America
Best Lawyers - Best Law Firms
Multi-Million Dollar Advocates Forum
Super Lawyers
Million Dollar Advocates Forum
Hispanic Lawyers Association Member