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Articles Posted in Wrongful Death

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Congratulations to my partner, attorney Jan Smolak, who recently settled a wrongful death case for $5,500,000!  Although I am not at liberty to discuss the details of the settlement, nor any of the specifics regarding the injury (we signed a non-disclosure agreement with the insurance company), I can say that Jan, once again, did an outstanding job.

Such a large settlement for a motor vehicle accident case is unusual.  There are two reasons why:

First, a negligent driver who causes an accident is extremely unlikely to have enough insurance (or personal assets) to cover such a large settlement. The minimal liability insurance for motor vehicles in New York is only $25,000, and a good chunk of New York auto owners carry only this bare minimum in coverage.  Even well-off folks rarely carry more than $1,000,000 in coverage.  Greater coverage is usually only available when the at-fault vehicle is owned by, or the driver of the vehicle was in the scope of his employment for, a large corporation.  Personal injury lawyers refer to this as a “deep-pocket defendant”. In car accidents, “deep pocket” defendants are rare.

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Since this blog post is about death, I have decided to feature one of the oldest and most famous icons in history:  The grim reaper.  Throughout history, this imaginary figure has personified death.  And what a powerful image!  Wielding his sickle, he “reaps” his harvest of human beings, cutting us all down (eventually) like blades of grass.

Before the modern area, which ushered in antibiotics and modern medicine, the grim reaper was ever-present, cutting down humans of all ages.  You were as likely to be his victim if you were young as old.  Most parents lost a few young children to his insatiable appetite for fresh crops.

In the modern era, we have gotten use to the idea that death (usually) befalls only the old.  The grim reaper today prefers mature crops, and leaves the young, green shoots to grow.

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Most New York State counties, including Monroe, Onondaga, and all the counties in between, have a law on their books which allows the county public health commissioner to issue an order for involuntary isolation if an individual disobeys a quarantine request and is believed to be an immediate threat to public health.  And the counties are not shy to enforce the law.  Example:  One of my brothers, who lives in Auburn, New York, developed Coronavirus symptoms a few weeks ago.  The Onondaga County Health Department ordered him to get the test (which he willingly did) and then ordered him quarantined in his home until the test results came back (7 days later).  Fortunately, he tested negative, but a County Health Inspector stopped by his house two times a day to make sure he was not leaving the home.  If they had found he had “flown the coop”, they likely would have issued an order for his arrest.

Here’s an even better example:  A Monroe County resident with Covid-19 symptoms, who refused testing, and then disobeyed a Monroe County Department of Public Health civil order to quarantine himself, was arrested and jailed recently in a County jail in Brighton, New York.   He has been isolated from other inmates to prevent COVID-19 spread.

Assuming this selfish and anti-social person passed the virus onto others, who got very sick or died, can his victims or their families sue him for money damages in New York?  That’s our New York personal injury law question for today.

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!

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