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Articles Posted in Wrongful Death

So 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.

It’s nice to win. And this Central and Syracuse New York personal injury and wrongful death lawyer recently won an appeal for the widow of a wrongful death victim in a Syracuse wrongful death lawsuit. The case is about a tragic accidental death that got extensive news coverage all over New York State. I have received phone calls from lawyers from other parts of the country about this case. Some have asked me for copies of my arguments (Brief) in the appeal.

What’s the case about? I am not at liberty to discuss the facts of the case in this blog for reasons I will explain below.

But first let me tell you that this was the second time the appellate court reversed the trial court in this case. Each time, the trial court had thrown my case out, and each time the Appellate Court reversed and reinstated it. I am sure the trial judge did the best he could each time. But the case involves difficult, novel New York wrongful death legal issues, and even I did not know how the Appellate Court would resolve them. I feel fortunate to have won, twice now. And guess what. A third trial court decision is coming, and after that, a third appeal. How do I know? Well, I know I will appeal if I lose, and the defendants will do the same if they lose. It is a big case. Both sides are giving it all they’ve got, fighting tooth and nail.

Convenience and safety often clash. Quick example: In the old days, before the era of car seats and booster seats, getting the kids into the car was so easy, so convenient. You just threw them in and off you went. Early on, there weren’t even seatbelts. Only problem was that kids were getting mangled, crushed and killed in car accidents. Enter car seats and booster seats. What a pain in the a–! All that strapping in, tying down. Inconvenient, isn’t it? But safe.

Now let’s take cribs. Several decades ago some smart engineers invented a great convenience: Drop-side cribs (see photograph featured here). No more leaning over the side of the crib to awkwardly place baby to bed. It was a hit!

Only problem was babies were dying. The drop-side sometimes created a V-shaped gap between the mattress and side rail where babies got caught, suffocated and died. At least 32 infants have died this way since 2000.

The Auburn Citizen recently reported on a Cayuga County Nursing Home Negligence case, and that’s my topic for today.

At first blush, it seems like a compelling case. The nursing home’s negligence is clear cut. So clear cut that when the State Department of Health cited the Home with violations, the Home almost immediately paid the $12,000 fine without protest. And the resulting injury was severe; death! And the nursing home has been sued. But even though the negligence is clear, and the injury severe, I may have declined to take this Auburn New York nursing home negligence wrongful death case. Why?

Glad you asked. First, a few facts. The nursing home nurses gave this 94-year-old resident (I’ll call her “the victim”) the wrong medication. The mix-up happened because two drugs’ names – metolazone and methimazole – have many letters in common. But in fact they were nothing alike; one would help treat this woman’s ailments and the other would kill her. (New York prescriptions errors like this one are, unfortunately, all too common). The mistake started when a pharmacy (which has also been sued) entered the order incorrectly, but the nurses failed to detect the mistake and gave the victim this wrong drug repeatedly.

A small, inconspicuous article caught my eye in the Geneva Finger Lakes times today. It was titled, “Teen Inmate Found Hanging in Jail Cell” and described how a 17-year old at the Yates County Jail in Penn Yan had apparently hung himself Friday evening by tying his bed sheet to his jail bars.

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.

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.

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!

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.

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 wrongful death claim against the negligent tractor-trailer driver and his commercial carrier/employer.

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