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Articles Posted in Wrongful Death

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):

Anyone familiar with Ithaca is also familiar with the ubiquitous bumper sticker and City slogan “Ithaca Is Gorges”. Bridges span those gorges, right on or near Cornell University’s campus, and students traverse those bridges by foot on their way to and from classes and town. When you combine Ithaca’s gloomy climate with the Ivy League pressure cooker, it’s no surprise that many of those students (a Cornell study says about 15%) frequently contemplate suicide, including jumping from the bridges. And over the years, many have! More specifically, from 1990 to 2010, there were 29 suicide attempts, 27 of which were successful, on the seven bridges located on or near campus.

Cornell was concerned enough about the bridges’ magnet-like pull on suicide contemplators so as to undertake anti-suicide bridge renovations in 2006 or so. At that time a virtually suicide-proof alteration — the installation of nets under the bridge — was rejected apparently because it would tarnish the scenery. Instead Cornell took half-measures, like building the parapets of the bridges a bit higher, and curving them somewhat. When several more kids threw themselves to their death from those same bridges, Cornell did an about face and is now implementing the net concept.

But in the meantime, the parents of one of those recent suicides have brought a New York wrongful death case against Cornell, and the City of Ithaca as owner of the bridge in question, alleging, basically, that they should have gotten it right the first time.

defibrilator.jpgOne of New York’s appellate courts (Second Department) recently held that health and fitness clubs in New York State must actually use automated external defibrillators (AEDs) when necessary, and not just have them available. If they don’t, a heart attack victim can sue them for failing to act. You can read the case here.

Since I am both a Central New York personal injury and wrongful death lawyer, and am on the Board of the Auburn, New York YMCA (former president of the board), I took a keen interest in this ruling. I also immediately informed the Y’s CEO about this case. After all, it’s one thing to require that health clubs have such devices available, but quite another to require that staff actually make a judgment call about when and whether to actually use them, and to be subject to wrongful death lawsuits if they fail to act properly.

Here are the facts of the case before the court: A racquetball player at a fitness club collapsed, a fellow player reported it promptly to the front desk, and the front desk immediately called 911. While they waited for the ambulance, several employees, with AED in hand, hovered over the stricken player, checking his pulse, but they never actually used the AED. The ambulance arrived in only a few minutes later, which may explain why they never used the AED. But the guy died at the hospital, and his family blamed the fitness club for not using the defibrillator.

I have a Syracuse New York wrongful death trial coming up in about six weeks. Six weeks may seem like a long time to you, but for preparing a complex trial, it is not. I started gearing up a few weeks ago.

The first thing I do is create a “to do” list for the trial preparation. As I get things done on my list, it feels good to cross them off. My list gets shorter and shorter.

In this case, my “to do” list is still quite long. There will be, I believe, more than 30 witnesses. I have to prepare “direct examinations” of the witnesses I am going to call, and “cross-examinations” of the ones I expect my opponents to call. And you don’t just “wing it” up there. No, that’s a recipe for disaster. You have to plan out carefully every line of questioning, and have exhibits and deposition transcripts ready to confront any witness who strays from the truth!

Thumbnail image for flowerongrave.jpgJust read a great article in the New York Times about developmentally disabled people in New York State care, or in the care of not-for-profit homes charged by the State to care for them, who die for “reasons other than natural causes”. Check out the stats: One in six such deaths in the past decade have been chalked up to “unnatural” or “unknown” causes. Other states, like Connecticut and Massachusetts for example, count only 1 in 25 such deaths.

The Times, God bless their soul, undertook its own analysis of death records, to find out just what these poor folks were dying from. What they found is very disturbing: Many of these deaths result from errors and preventable deaths, such as drowning in bath tubs where the disabled were not supposed to be left alone in the tub, or choking on food when they were not supposed to be left alone with food; or falling down stairs when they were not supposed to be navigating stairs on their own. Some of the mentally disabled simply ran away, repeatedly, until they died out on their own.

The Times further found that these preventable deaths rarely resulted in measures being implemented to prevent the same mistakes from recurring.

Thumbnail image for Picture of Michael Bersani .jpgPeople sue for different reasons, and usually for a combination of reasons. When accident victims hire me to file a New York personal injury lawsuit, they often seem apologetic for having to sue, explaining to me, “I’m not the suing type, but . . .”.

Usually their voice turns a little angry after the “but”, as they explain the reason they must sue. Often it is because the person or company that injured them didn’t seem to give a damn about their safety or did not even apologize. They want to make them pay for their wrong.

Very, very often people sue because they have no choice; they can’t work and can’t pay the medical bills, and they need to sue just to stay afloat.

Today’s Syracuse Post Standard reported on a study published in the journal Pediatrics concluding that, in the U.S.A., a child dies in a portable pool every 5 days during the summer months. Ninety four percent of the victims are under 5.

Drowning is the second-leading cause of death among young children. (The first is car accidents). But why so many deaths in these cheap, shallow pools?

I can think of three:

pool with beachball.jpgSwimming pool season is almost here, which means lots of fun and relaxation for many New Yorkers who will finally get to “take in some rays” on the pool deck after an especially long, cold and snowy winter.

But today I had a grisly reminder of the dangers that lurk in pool areas. Two toddlers were pulled from a swimming pool at a Buffalo home on Easter Sunday. One of the boys, only 2 years old, somehow got under the pool’s solar cover. He was unresponsive when they pulled him from the water and is now in critical condition at Woman and Children’s Hospital. The other boy fared better — he was found on top of the pool cover and is in good condition. The boys were at a family Easter gathering at the home. Let’s hope and pray that the boy in critical condition makes a miraculous, full recovery.

As a parent, reading news stories like this one reminds me of all the nightmares I have ever had about something terrible befalling one of my children because, perhaps for only a second, I was distracted. I once I lost a 3-year old in Kennedy Airport! Fortunately, I found him after what seemed like an eternity, but probably was more like 2 minutes.

nuclear plant.jpgSo what rights would we New Yorkers have to compensation in the event of a New York Nuclear Power Plant Catastrophe?

Let’s assume that Oswego’s Nuclear Power Plant suddenly broke down and started spewing out dangerous radioactivity, just like in Japan. Let’s assume your family ended up sick, or dead, and that you had to move out of your home — forever — and that its market value was reduced to zero dollars. Can you sue the Power Plant owner? If so, for how much?

Well, I’ve got some bad news for you. Even though under New York common law principles you would be able to sue the power company for every penny of compensation you were entitled to for all those catastrophic losses, a not-well-known federal law trumps New York law, and would probably force you to accept pennies for every dollar you would otherwise be entitled to.

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