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.
Great post Eric, but I wonder about number 2, contractual obligations on the part of Central Park Conservatory. Under the Espinal line of cases, a contractual obligation, standing along, does not give rise to tort liability to a third party unless he/she/it “creates or exacerbates a dangerous condition by launching its own force or instrument of harm”. Here, it would seem that simple failure to properly inspect would be “passive” negligence, not the kind of active negligence that makes the darn thing more dangerous than it would have otherwise been. Therefore, the Central Park COnservatory is probably off the hook (unless I am wrong, which is not uncommon!).
I do think that wrongful death claims should be predicated strictly on the economic value of the deceased. While the death of a young child is a terrible thing, the attempt to assign a dollar value to grief or pain and suffering of the deceased is a canard designed to wring money out of a bad situation. Since no amount of money can replace a life and $1 is as adequate (or inadequate) an award as $1 Million, I think we should stick with the economic loss suffered and leave it at that.
The idea of a family not being able to hold accountable the truly culpable party without monetary damages is simply wrong. If there was criminal behavior involved, the family can press charges and society can levy fines and/or prison sentences, if deemed appropraite.
If simple negligence was involved and there is no economic loss, a simple apology should suffice. Unfortunately the families of the deceased often see a tragedy as a winning lotto ticket to Easy Street. The real insult to truly grieving families is to pretend that money is a healing balm
If simple negligence was involved and there is no economic loss, a simple apology should suffice.
I, on the other hand, don’t believe in giving immunity to people who injure or kill others through their negligence.
Unfortunately the families of the deceased often see a tragedy as a winning lotto ticket to Easy Street.
Never in my life have I ever met such a parent. And never in my life have I ever met someone who has met such a parent. Your theory runs 100% counter to human nature.
@Michael G. Bersani –
Since we don’t have either the contract or actual knowledge of what the CPC did or was supposed to do, it is difficult to speculate too much. But two points do cross my mind:
1. The City ultimately won’t be able to delegate its duty away.
2. The CPC will be included in any suit anyway to avoid the “empty chair defense.” If a judge rules them not responsible as a matter of law, that is OK, b/c then the city won’t be able to point to them at trial.
@Eric Turkewitz –
I haven’t worked as a claim adjuster for 15 years, but I saw enough instances of it to shake my faith in human nature. If you’ve never seen it and never met anyone who has seen it, then you either must select your clients very carefully or proceed wearing blinders. It is not 100% counter to human nature – if it were, there would be no fraud.
No, it’s not always the case, but you see it often enough, especially from parents using attorney firms that advertise heavily. I never dealt with New York, but on the west coast and in the southeast, I’ve seen plenty of instances of it. That ol’ lotto mentality definitely exists
@P W Dennis –
That ol’ lotto mentality definitely exists
I’ll tell you why you are mistaken. The monetary demands in a lawsuit represent a substitution for what the parent really wants: Vengeance.
For many people, the lawsuit represents a means of expressing their anger in a civil fashion. If we didn’t have it, you would see vigilante justice. Somehow, someway, there are people who want to get their pound of flesh.
If they didn’t sue, many would find alternate means of justice that would likely land them in a criminal proceeding.
While the claims adjuster might see Lotto, the grieving parent is looking for some kind of justice, any kind s/he can get that is legal. You might make an offer of x to settle a case, but the parent knows that their child is not “worth” x.
Yes, the system of using money as a means of compensation may be imperfect, but it is better than any other system that has been invented.
Your theory that the grieving parent should just be told “I’m sorry” but the person that did the deed simply will not cut it for many people.
And if the parent does make a financial recovery, they may well wish to use it to help others…to somehow, someway, use the tragedy to create a better place for others.
In 25 years of practicing law, I never saw a parent that would rather have a lawsuit than their child back.
@Eric Turkewitz –
Actually, I have , a couple of grifters who had all but abandoned the child but decided to cash in on the tragedy
If vengence is the motive, then the appropriate monetary award is $0.01 and even that is probably too much. I have no problem compensating real losses. Hurt feelings and sorrows are another matter. Another problem, although apparently not in New York, is that many states allow all kinds of relatives to pursue wrongful death claims, and those clearly are cases where someone is cashing in on a misfortune
I have no problem compensating real losses. Hurt feelings and sorrows are another matter.
May you never find yourself in the shoes of those you speak of, and find out what “real losses” truly are.
Great post. Very sad case. I did not know about the 90-day limitations’ period.
Had no idea there was not pain and suffering for loss in New York wrongful death cases.
Incredible.
I have no problem with the actual victim collecting damages for pain and suffering, but pain and suffering claims should die with the victim.
I remember attending a early mediation where plaintiff counsel said that if we didn’t settle at the mediation they would find a physician to testify that the decedent lived for a few minutes after the accident so that they could pile pain and suffering onto the damages claim. He did in fact succeed and the jury awarded those damages; however, we were the “deep pocket” defendant and the jury found us 0% liable, so plaintiff found herself with an uncollectible judgment. It was back in the days before my state abolished joint and several, so there was a real risk in not settling
Notice issue of interest. What will a “tree expert” say was there to see on that tree, that defendant(s) failed to see? Got me?
What will a “tree expert” say was there to see on that tree, that defendant(s) failed to see? Got me?
I presume s/he would say that the defendants failed to see disease or rot of some kind, if it was there to see.
@P W Dennis –
I have no problem with the actual victim collecting damages for pain and suffering, but pain and suffering claims should die with the victim.
The claim is a property right like any other. Would you also say that anyone that owed the decedent a debt is now off the hook?
I fail to see any logic to the grant of immunity that you want to give the tortfeasor.
I’m sorry Eric, but I think it is absolutely obscene to label pain and suffering as a property right. That’s not an immunity, because only the victim truly knows the amount of suffering he/she endured and can quantify it.
For anyone else to do it is simply speculation. Of course our civil justice system has been perverted into little more than speculation anyway,so maybe manufacturing of damages from wholecloth is appropriate
@P W Dennis –
I’m sorry Eric, but I think it is absolutely obscene to label pain and suffering as a property right.
Bankruptcy law treat it the same way. If you go bankrupt, and have a personal injury claim, it goes into the bankruptcy estate. The bankruptcy trustee becomes the plaintiff and, if the suit is successful, pays the creditors with the proceeds.
That’s not an immunity, because only the victim truly knows the amount of suffering he/she endured and can quantify it.
Of course it’s immunity. You just gave the wrongdoer a free pass, didn’t you? S/he hurts someone and then walks away from all or part of the damage caused.
When I was a kid I learned about being responsible or my actions, not asking others for immunity to save me from my own misdeeds.