June 29th, 2010

A Dead Child In Central Park (6 Legal Issues)

It is rare for me to discuss a local accident. But I do so today regarding the tree limb that fell over the weekend killing a 6 month old girl in Central Park that also critically injured her mother. She was holding the baby and posing for a picture being taken by the father on a clear summer’s day. It is, essentially, a trauma that could have happened to anyone.

And I write because WABC-TV called me to discuss the liability issues on the air, and it raised a number of concepts that local television isn’t really equipped to handle in soundbite format. And the last two of those issues are things that the Legislature should address:

First — A Duty to Inspect: The tree was inside the Central Park Zoo, run by the Wildlife Conservation Society that also runs the Bronx Zoo. But the limb was overhanging an area just outside the zoo where it came down. Who’s responsible? The answer is that the owner of the tree has a duty to inspect and maintain that tree. And the landowner over which that limb hangs, and under which its patrons walk, also has that duty. And given that this is not an obscure part of the woods but one of the most heavily trafficked spots in Central Park, that duty is rather substantial.

Second — Contractual Obligations: Based on news reports, the Central Park Conservancy has a contract with the Parks Department to do inspections. This would be a contractual obligation that could likewise make them a defendant if a suit were brought.

Third — Notice of a Troubled Tree Limb: The issue of notice is critical, meaning that the zoo/park would be responsible only if they knew, or should have known, that there was a problem with the tree limb. This is similar in concept to the banana peel on the supermarket floor. Just because someone slips on it doesn’t make the store responsible. The store needs to have known it was there (an employee saw it or customer told them) or it was so blackened and old that it is clear the store should have known about it with reasonable care. Those same concepts apply to the tree limb, and much will be made in the investigations about the adequacy and reasonableness of the inspections that took place (if they took place).

Fourth — The Rush To Find a Lawyer: This veers off now away from responsibility to the sad fall-out of tort “reform.” If a municipality is going to be sued, then local laws require people to file a Notice of Claim within 90 days of an incident so that the municipality can investigate. That means that while the husband/father is grieving and trying to help his stricken wife, he has to go looking for lawyers and meeting them. That is terribly unfortunate, but the sad result of attempts by our Legislature to limit actions by forcing excessively tight limitations periods on those that have been injured.

Fifth — The Demand for Damages: Not only must the father find a lawyer fast (and without a clear head he runs the risk of making a mistake in who he hires) but that lawyer must then make a demand for damages in that Notice of Claim. In other words, without even knowing what the future holds for his wife, there must be some number stuck in the Notice. This is a practice that has been mostly legislated out of existence, except for this one place in the Notice of Claim. But that number will bear no relation to reality. Since the extent of the injuries won’t be known at such an early stage, the lawyer must cover all contingencies and assume a worst case scenario. But this unrealistic number will then be broadcast in headlines far and wide by the media as if it actually has meaning. The Legislature should get rid of this provision, as it serves no useful purpose whatsoever other than for headline writers.

Sixth – Valuing the Life of a Child: In New York, unlike the vast majority of other states, a parent cannot sue for grief over the lost child. An action can only be brought for the pain and suffering of the child, or a wrongful death action for the financial loss. So if a child was knocked out at the time of a car accident, for example, and doesn’t physically suffer and dies afterward, the law deems the child’s life to have little value since there was little financial loss to be expected. The family is thus unable to hold accountable those that did the true damage. While some may feel odd about financial recoveries under such circumstances, it is really up to the people who suffered the loss to decide if they wish to donate money to charities, fund education, or embark on any other type of expense that they believe appropriate. The Legislature should bring our archaic wrongful death law into the modern era, and rid us of this insult to grieving families.

January 29th, 2008

Woman Falls From Operating Room Table and Dies

She just had hip surgery, and was still anesthetized. But when a safety strap was removed, Catherine O’Donnell somehow slipped off the table and slammed her head on to the floor fracturing her skull. A week later, the 86-year-old woman was dead despite a second operation that removed part of her skull to relieve pressure from the bleeding. (Boston Globe). Her family has now brought a wrongful death suit in Massachusetts.

What is interesting to note, from the legal end, is that if such an instance happened here in New York the family would likely have a hard time finding an attorney to handle it. This is exactly the type of avoidable accident that doctors and hospitals mostly enjoy immunity for. Here’s why:

A lawsuit such as this has just a few essential elements of damages. Conscious pain and suffering and pecuniary loss (such as wages) are usually the major ones. Assuming the 86 year old wasn’t working, however, her survivors likely has little pecuniary loss unless there are some types of pensions or similar revenue. And as to conscious pain and suffering, there is zero if she was never aware of what happened to her. In New York, there must be some level of awareness of the pain and disability. There may be a claim for loss of parental guidance, but the children would all be adults and the claim minimized due to that (relative to such a claim for an infant). There may also be a spousal claim if her husband survived her (not noted in the story.)

That leaves just grief for the surviving family. But unlike 42 other states, grief for surviving families is not compensable in New York in accordance with a law passed in 1847. ( See: The September 11th Lawsuits And The Problem Of Compensable Grief in NY) So the family is stuck, basically screaming at the wind for what happened, with no outlet for their grief.

People often make the assumption that lawsuits are “all about the money.” Sometimes yes, but often not. With the loss of a family member, a family is often looking for answers and accountability. The courtroom, on an emotional level, often substitutes for the vigilantism that might occur based on anger.

While I had written just last week about my own handling of a woman with a ruptured brain aneurysm that fell off an angiogram table (see: Straying from Your Field of Practice), that woman had survived and was in massive distress. But wrongful death claims for the elderly (or even more sadly, for a child) often enjoy a de facto immunity here in New York.

(hat tip: Kevin MD)

September 10th, 2007

September 11 Judge Says Families Should Settle And Move On

The New York judge scheduled to hear the 41 lawsuits remaining from the September 11 attack says the families should settle.

Family members are reported to be fuming, according to this New York Post report, at Southern District Court Judge Alvin Hellerstein who said “money is the universal lubricant.” At a recent hearing he said that:

“Each of us has a choice: Either to never forget that pain and have it ever present in our lives, or to fashion a life beyond the pain…Somehow, we need to get past Sept. 11, 2001, as a country and individually.”

After a story about the trials appeared on the front page of the New York Times last week I wrote about the problem many of the families face in The September 11th Lawsuits And The Problem Of Compensable Grief in NY.

The litigating families had refused to participate in the September 11 Victim Compensation Fund due to low awards for those who were not working (such as children, retirees, those with disabilities).

It seems likely that the demand for accountability will, for some, supersede any desire to move on.

(Eric Turkewitz is a personal injury attorney in New York)

September 4th, 2007

The September 11th Lawsuits And The Problem Of Compensable Grief in NY

As the New York Times reports today, 41 lawsuits are heading for trial this fall resulting from the September 11th attacks. These trials are for those that opted out of the September 11 Victim Compensation Fund — usually because the amounts offered to a certain class of survivors were so low, and no doubt because the wounds were too raw for many to “put a number” on the loss of a loved one so quickly.

Here is the problem in a nutshell: The economic losses of the victims were evaluated with a schedule dependant on earnings that resulted in an average award of $2M. But the non-economic loss was limited to a flat $250,000, plus $100,000 to surviving spouses and children, regardless of whether death came instantly and without warning based on a direct hit by an aircraft, or whether a victim was on board a flight for 45 minutes in fear, or stranded on a high floor of a tower before it collapsed. (The feeling at the time was that this was too difficult a task for 3,000 people, many of whose stories would never come out.)

So those who lost family members who were not earning any money, children, retirees, etc., felt they were treated unfairly and could not, or would not, simply take a small sum without exploring the accountability of numerous entities, such as the airlines, Boeing or security companies that were supposed to be screening passengers. Here is one example of some of the thinking:

The plaintiffs are people like Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to crash into the World Trade Center. For Mr. Low, it is strange for the airlines to deny that they could have anticipated the attacks, because, he says, his daughter was offered antiterrorist insurance as one of her fringe benefits, and took it.

Now here is the “problem” from the subject heading: Under New York law, grief of the surviving family members is not compensable. Unlike the vast majority of other states, New York remains in the dark ages when it comes to this subject. So a child that has been lost is viewed through the eyes of the law based solely on their earnings (none) and their suffering. But not the grief of the parents or siblings. So while some will always scream “It’s just about the money,” the reality is that for many it is mostly about raw emotion. Like this:

The Cottoms’ lawyers would not say how much Asia might have received from the fund. Mrs. Cottom said she believed they would have received little more than the minimum $250,000 — an amount she found “insulting.”

She lost a daughter, she said, who had her first menstrual period just before the fatal flight, a school trip to Los Angeles. “I took her to Wal-Mart to buy sanitary napkins,” Mrs. Cottom said. “So she was growing up one day and the next day she’s gone.”

Her decision to reject the fund was not hard, she said. “To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year-old is worth $2, but because you’re the pilot of that plane, that’s worth $2 million?”

While the passage of time may have made it easier for some to settle this matter, it is clear that some will want a jury hold various entities accountable for their malfeasance. But while the actual amounts awarded may surpass that which was awarded by the Victim Compensation Fund if claimants can show what their lost family members went through, the awards will not be exceptionally high. And if they are, they will be reduced by the courts afterward.

In an unusual twist, damages will be tried before liability, in the hope I assume, that this will assist with settlement talks.

(Eric Turkewitz is a personal injury attorney in New York. He also represented two claimants before the Victim Compensation Fund)

February 12th, 2007

Anna Nicole Smith — Is a Wrongful Death Suit Possible?

Anna Nicole Smith left behind a spider web of litigation that not only won’t end soon, but could even get worse if her death is not from natural causes.

Over at FindLaw, Joanne Grossman writes a fairly thorough article entitled: The Litigation-Filled Life of Anna Nicole Smith, and the Legal Aftermath of Her Demise, but leaves out one big “what if.”

In discussing the future, she leaves out the potential for a wrongful death action if her death is found to be caused by drug-related issues. Such an action could be brought by the surviving daughter against someone that facilitated her acquisition of the drugs (if that is what happened, it is speculative at the moment).

And making matters worse, that person might be one of the people currently vying for custody of the child. It’s enough to make your head spin.

It is important to note that neither accidental or intentional overdose would preclude a wrongful death action (at least in New York). If one were to hand a suicidal person a gun, for example, the one that furnished the gun could be found negligent.

Since it has been reported that she may have had as many as 10 different medications in her room (and assuming that drugs were the cause), and also that she had a reported history of drug problems, the provider of those drugs could be found negligent for having supplied some of the medications.

Of course, with toxicology results not expected for some time, folks will have to wait. But there certainly looms the potential for a miserably complicated set of lawsuits to become more so.