New York Wrongful Death Lawyer Blog

Flight 3407: Release of "Internal E-mails" to Public Results in Motion for Protective Order

Tue, 13 Dec 2011 14:12:27 -0500

Pre-trial discovery by plaintiff lawyers for some of the families of the victims of the air crash near Buffalo, resulted in the public release, in October, of "internal" Colgan Air e-mails that questioned the pilot's qualifications to fly the type of plane that crashed.

Colgan Air attorneys have moved in Federal Court for a "protective order", claiming the plaintiff attorneys were using them to its prejudice, swaying public opinion and making it less possible to have a fair trial, by tainting the jury pool. Trial is scheduled for March, 2012.

The release of those materials caused a stir because the National Transportation Safety Board, which investigated the crash had not seen them while it was determining the cause of the crash.

Plaintiff attorneys responded that there was a lot of information that was "incredibly damaging" to the defendants, and by moving for "protection" the defendants were seeking to keep it from public disclosure.

The federal courts usually follow state law with respect to "Trial Publicity", and conduct by attorneys. Rule 3.6 of the Model Rules says, in part, "A lawyer who is participating in a civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

"Likelihood of materially prejudicing an adjudicative proceeding" is defined, in a civil proceeding before a jury as "information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial..."

Attorneys are allowed to disseminate by means of public communication information contained in a public record.

One plaintiff attorney said that confidentiality should only be allowed to protect trade secrets or the privacy rights of individuals.

I would be surprised if a protective order was granted by the court, as I believe that the internal e-mails would be admissible as evidence at trial.

Virginia Tech Settles Student Suicide Wrongful Death Case

Sat, 10 Dec 2011 10:59:20 -0500

The Commonwealth of Virginia, on behalf of Virginia Tech University, settled a 2009 wrongful death lawsuit brought by the parents of student Daniel Kim, in Fairfax County Circuit Court.

The gravamen of the case was the failure of the VTU "Care Team" counselors to take any action after an e-mail, warning of potential suicidal thoughts or tendencies, was sent to them by a friend of the decedent.

The university did not make any attempt to contact or speak with Kim, nor did not notify his parents of the potentially ominous e-mail warning concerning their son.

The commonwealth will pay the parents $250,000 and establish a scholorship in Kim's name. The university will change its policy on "parental notification" of students suspected of being suicidal.

Kim apparently became increasingly despondent as a result of the April 16, 2007 massacre at Virginia Tech. He felt that his looks closely resembled those of the notorious shooter, Seung-Hui Cho, and therefore, people connected him with that horror. He became self-conscious of his ethnicity, and "was ashamed of being Asian".

His suicide on December 8, 2007, was eight months after the massacre.

Nevada Helicopter Tour Deadly for Five

Thu, 08 Dec 2011 15:13:16 -0500

It is too soon to tell what caused the sightseeing tour helicopter to crash into a remote, rugged area near the Colorado River last night.

National Safety Transportation Board investigators will arrive on scene to determine what caused the crash.

Sundance Helicopters, the operator of the tour, runs 23 copters, and flies over 160,000 persons annually from McCarron International Airport (Las Vegas). With three other helo tour companies, about 469,000 persons per year fly over the Las Vegas Strip, the Hoover Dam and the Grand Canyon. These tours start at over $200. Sundance has about a third of the business, grossing about $32 million per year.

Sundance had a prior fatal tour crash in 2003; the NTSB blamed "unsafe flying procedures" for seven deaths.

Unlike my November entry Hawaiian Helicopter Tour Crash Fatal for Five, it does not appear that bad weather contributed to the cause of the crash. A news report indicated that Sundance had received at least two customer written complaints about the crash pilot flying "close to canyon walls, and at bank angles, pitch altitudes and airspeed".

It is no surprise that Sundance's website says that their equipment is maintained with exacting precision, and that their pilots are trained and retrained.

The NTSB may have the last word on this tragedy.

Death By Airline Food: Family Sues for More Than $1 Million

Tue, 06 Dec 2011 18:26:26 -0500

If American Airlines was not troubled enough by financial woes, the family of a passenger who died after eating "airline food" on a flight between Barcelona and New York City is suing it and Sky Chefs for wrongful death.

They say that the food was contaminated with Clostridium perfringens bacteria.

According to the CDC, (C. perfringens) is a spore-forming gram-positive bacterium that is found in many environmental sources as well as in the intestines of humans and animals. It is commonly found on raw meat and poultry. It can survive in conditions with very little or no oxygen.

C. perfringens produces a toxin that causes illness, usually diarrhea, and is generally not dangerous except in the case of the very young or the elderly.

Unless other passengers on the same flight, or same day, reported similar symptoms of food poisoning, it may be problematical to prove that the bacterium was from the airline food. The man began to have physical problems after eating. Experts on food poisoning say that the onset of symptoms, was unusually fast.

It may also be difficult to prove that the bacterium caused, or contributed to decedent's death.

The passenger died of a heart attack, soon after arriving at his home in Miami.

A comment made about this case was: "It's rare to die of food poisoning; it's common to die of a heart attack".

World War II Vet Freezes to Death: $.5 Million Settlement

Mon, 05 Dec 2011 17:48:34 -0500

In January, 2007 Marvin E. Schur, age 93, froze to death when the Bay City Electric Light & Power and Bay City, MI itself, limited his electric usage for non-payment.

An autopsy confirmed the cause of death.

Neither the power company nor the city paid sufficient attention to their customer/citizen when the power to his home was limited.

In August, 2011, the US District Court approved the $500,000 settlement. Members of the Schur family were granted $6,000 each. The family lawyers got $187,747.57 for their fees, and the Bay Regional Medical Center, received the balance: $323,182.29, pursuant to Mr. Schur's Last Will. How nice.

This case is factually similar to one I wrote about in June, 2010: Velma Arlene Fordham, age 58, who froze to death because her apartment's gas service had been cut off during a major lake-effect snowstorm in Buffalo, NY.

Norfolk, VA: Sanitation Worker Compacted by Own Truck

Thu, 01 Dec 2011 15:59:46 -0500

A 51 year-old man was crushed to death when he climbed in the back hopper of a Heil Formula 7000 garbage truck and attempted to clear debris which was jammed, preventing a "compactor blade" from moving.

He perished when the hydraulic system engaged, and a safety mechanism which would have saved him failed.

The City of Norfolk originally said that the man had "violated a city policy" by climbing in the back of the truck.

Later, state investigators confirmed that it was "city policy" for sanitation workers to do so; otherwise, any jamming issue would necessitate leaving the trash route and returning to the maintenance shed for loosening or repair.

The Virginia Department of Labor and Industry investigated this occurrence and found 8 "serious (life threatening) violations" related to this accident. For example: the safety system on the truck was supposed to be checked daily. That did not happen.

A well-spoken Norfolk councilman stated "Some heads should roll on this..."

[As reported by Harry Minium in The Virginian-Post, October 12, 2011]

Cornell Suicides: "Means Restriction" Too Late For Three Students

Fri, 25 Nov 2011 13:09:32 -0500

The Ginsburg family of Boca Raton, FL, lost their son on February 17, 2010, when he jumped into the Falls Creek gorge, on the Cornell University campus.

Within four weeks, two other Cornell students, William Sinclair and Matthew Zika, jumped to their deaths into the gorge.

Suicide by students at Cornell, or elsewhere, was not uncommon, in fact, suicide is a second leading cause of death for people of high school and college age. Many times, the youthful urge to kill oneself is an impulsive act.

Over decades, suicide at Cornell University has often been accomplished by jumping into the gorges off the bridges that cross over them.

Between 1990 and 2010, 29 persons attempted suicide by jumping from the bridges into the gorges. Twenty-seven of those were successful in ending their lives. Fifteen of the twenty-seven were Cornell University students. Seventeen persons jumped from City of Ithaca owned bridges; 12 from spans owned by Cornell University.

In reaction to the three jumping suicides during the spring semester of 2010, Cornell University took immediate temporary action to fence the bridges to prevent further suicide behavior. That action is known as "means restriction", and is designed to interrupt, or impede, impulsive suicidal actions, by making them more difficult to accomplish.

Since then, after much study and consultation, and agreement with the City of Ithaca, permanent means restriction netting will be installed beneath each of the gorge bridges, acting as a deterrent to prevent convenient, "easy access" suicide from the bridges in the future.

Means restriction is not a new concept. The Empire State Building installed anti-suicide fencing on its observation deck in 1947; the library atrium at New York University was made safer by the installation of Lexan panels after two students jumped to their deaths; MIT dorm window openings were restricted after student suicides from upper floors.

The installation of means restriction devices by Cornell and Ithaca is too late for Bradley Ginsburg, William Sinclair and Matthew Zika.

Sugarland Not Responsible for Indiana State Fair Stage Collapse

Wed, 23 Nov 2011 11:03:34 -0500

Comments attached to the Huffington Post report of a lawsuit filed on Tuesday, November 22, 2011 were uniformly critical of plaintiff lawyers who sued the popular duo Sugarland for the August wind-related stage collapse which killed seven, and injured 40 others.

Traditional negligence case analysis involves finding a "duty owed", a breach of the duty, and injury caused by the breach.

The complaint alleges that Sugarland, among many others, had a duty to provide a safe concert environment and use reasonable care in the direction, set-up and supervision of the concert.

Sugarland supporters make relevant inquiry: "What does the singing duo have to do with how the stage is constructed?" [The situation was clearly different when the Rolling Stones hired "Hell's Angels" to act as "security" for the Altamont concert, years ago.]

The lawsuit filed in state court in Indianapolis, combines 44 injured survivors, four wrongful death plaintiffs, and "at least 20 law firms".

Neither the fair, nor the State of Indiana are mentioned in this suit, although there are many others already filed. Apparently, Indiana law limits the state's liability for the incident to $5 million.

Lawyers are looking for "deep pockets" for their injured clients.

Sugarland is not responsible for what occurred in this tragic case.

Other comments about the HuffPost article are critical of concert attendees, asking where individual responsibility for personal safety begins. As I wrote in a recent blog entry about the lack of uniform standards for outdoor concert staging, "Let the concert goer beware".

Railroad Bridge Grate Gives Way: 20 Year-Old Falls to Death

Mon, 21 Nov 2011 16:42:52 -0500

Last August, late at night, in Clarksville, Indiana, three young friends decided to walk on a railroad bridge, high over the "Falls of the Ohio" park.

Two youths walked in the center of the bridge, on the wooden railroad ties. Their friend, Jesse Middleton, walked on metal grates, near the edge of the tracks.

Suddenly a metal grate gave way, and Middleton plunged 100 feet to the riverbed below, landing face down in water. He was dead by the time help reached him, .

There were signs posted on the bridge warning "No Trespassing".

The NY Court of Appeals, in a 1976 case, Basso v. Miller, set the still current standard for premises liability cases, by scrapping the "old" three-classification system, for trespassers, guests and business invitees, affording each group a different duty owed.

The Court "abandoned the classifications entirely and announced our adherence to the single standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability".

If New York law applied to this case, forseeability would be the "measure of liability". Did the railroad company know that trespassers regularly walked on the bridge? Did it think that warning signs would dissuade people from walking over it? Should fencing have been installed? Should the bridge have been inspected for pedestrian safety?

From the article about this incident, it appears that the bridge was used regularly by young people as a place to hang out, and had been for years.

It also reported that Middleton had taken two unprescribed "Lortabs" earlier that day. Maybe the three friends had been drinking on that summer night?

The Basso court continued: "Contributory and, now, comparative negligence, as well as assumption of the risk, all fit into their respective places, to be invoked when appropriate".

Did the three friends assume the risk of walking on a high bridge?

Without more information, one cannot determine if a viable cause of action for wrongful death exists in this case.

Philly Ride the Ducks, Part IV: Tug Boat Pilot Gets Year + A Day

Wed, 16 Nov 2011 13:03:50 -0500

The pilot of the 250 foot-long sludge barge that ran over and sank a disabled "duck boat" in Philadelphia last year because he was distracted using his cell phone and laptop computer, was sentenced in US District Court to a prison term.

He admitted his culpable conduct by pleading guilty to a single count of "misconduct of a ship operator causing death".

His admission clears the way for lawyers suing for wrongful death on behalf of the families of the two young Hungarian tourists who drowned.

As mentioned in Philly Ride the Ducks: Part III - Wrongful Death Suits Filed, there was plenty of blame to be shared by several defendants.

Each family lost their only child in the incident.

Hawaiian Helicopter Tour Crash Fatal for Five

Tue, 15 Nov 2011 17:25:10 -0500

Two couples on a Hawaiian helicopter sight-seeing tour perished with their pilot in a fiery mountainside crash that witnesses attributed to a sudden storm front that blew across the island of Molokai.

One couple, from the Philadelphia area, was on their honeymoon. The other vacationing couple was from Toronto, Canada. The 30 year-old pilot was also newlywed.

The tour helicopter, a Eurocopter EC-130, was less than a year old.

Investigators from the National Transportation Safety Board have arrived on scene to determine what caused the crash. There is no official word yet.

Blue Hawaiian Helicopters, the operator of the tour, flies about 160,000 tours annually in the islands. It had a crash in July, 2000, which was fatal to seven people. That crash was determined, by the NTSB, to have been caused by pilot error in not maintaining sufficient altitude over terrain in low flying clouds.

Other tour helicopter crashes, including ones in Manhattan and Majorca, Spain, have raised concerns over safety in recent years.

The NTSB report may help grieving families determine if there is a viable cause of action for wrongful death, or if "accidents happen" without any wrongful act, neglect or default of those involved.

NYT: One in Six Deaths in Group Homes Either "Unnatural" or "Unknown Cause"

Tue, 08 Nov 2011 15:48:59 -0500

In an article published November 6, "Scant Scrutiny of 1,200 Deaths in State Care", New York Times reporters conducted their own analysis of death records from NYS group homes, and found disturbing patterns.

One in six deaths reported about this population in New York State were either called "unnatural" or "unknown cause". The same figure is far less common in other states that keep like records.

The records seemed to indicate that patient care problems contributed to the death rate.

Patterns were revealed in the 7,118 deaths of developmentally disabled persons in the past 10 years: too many residents choked to death when left alone with their food; others fell to their deaths when they needed help on stairs; more died in fires in their group homes that lacked fire safety measures; some drowned in their bath tubs when left unattended by staff for too long; still others repeatedly ran away from their homes, until eventually they were found dead.

The article describes the lack of statewide record keeping concerning the developmentally disabled, and the lack of training required for their caregivers, and standards of care to be applied.

This segment of our population is not as valued by society as others. There is often no-one to inquire into the circumstances of death of these folks.

Anthrax Death Suit Settled By Widow

Thu, 03 Nov 2011 13:24:57 -0500

In late October, 2011, it was reported that the widow of a National Enquirer photo editor settled her $50 million lawsuit against the US government for the anthrax poisoning death of her husband.

By her suit, filed in U.S. District Court for the Southern District of Florida, in 2003, she alleged that the government had failed to secure the anthrax bacillus at a military laboratory. In 2001, Dr. Bruce Ivins, a U.S. Army scientist, mailed anthrax laced letters to media and governmental offices in Florida, New York and Washington, D.C. area. Ivins committed suicide in 2008 as investigators prepared to charge him with multiple crimes, including murder. Investigators matched anthrax spores to determine the origin of the tainted letters.

Anthrax poisoning can occur in humans through the intestines, lungs, or skin. Cutaneous poisoning, often through a cut in the skin, is rarely fatal if treated. Pulmonary infection causes severe flu like respiratory distress. Intestinal poisoning causes vomiting, diarrhea, and acute inflamation. Once ingested into the body, it occupies the lymphatic system, multiplies, and kills the host within a few days or weeks.

Five people died as a result of the anthrax spread by Dr. Ivins.

Damages for anthrax poisoning death would include not only pecuniary damages, but also pain, suffering and the decedent's awareness of his fate.

It is interesting that the settlement amount is not being published. I presume that it is far less than $50 million, but would be in an amount sufficient to compensate the family of the decedent for his horrifying death.

Bear Kills Boy At Campsite: U.S. and Utah Courts Reach Opposite Results

Mon, 31 Oct 2011 12:46:52 -0500

When the family of Samuel Ives, 11, set up their campsite in a remote area of the Uinta National Forest, they did not know that earlier that same day, June 17, 2007, at the same campsite, a man was awakened by, and was forced to repel, an attacking bear. He fired a pistol and threw stones to scare it away.

The man reported the incident to the Utah County Dispatch, the U.S. Forest Service, the highway patrol, and the Utah Division of Wildlife Resources.

The same day, UDWR began a search for the bear, which under its' classification system, had to be destroyed because it constituted a threat to the public because of its aggressive and fearless behavior towards humans.

By 5 p.m. or so, the bear had not been found, and the Division of Wildlife Resources personnel postponed the search until the next morning.

Later, the Ives family arrived, set up camp, and went to bed around 9 p.m.

During the night, the bear attacked, pulling Samuel from a tent. His body was found 400 yards away.

The boys' family sued for wrongful death, alleging that the parties involved were negligent in not closing the camp site and failing to warn of a dangerous bear in the area. They said, that had they known about the bear, they would not have camped in that area.

Somewhere in the government campground employee communication hierarchy, information and warnings about the bear were not passed along. Some Forest Service employees did not know about the earlier incident, and consequently, no action was taken to warn arriving campers.

The US District Court judge ruled for the plaintiffs, finding that they had shown that the bear that attacked was the same bear that had attacked campers earlier in the day.

Besides arguing government immunity from suit, attorneys for the U.S. Forest Service contended that its employees were not negligent and had not omitted any duty to the plaintiffs.

In May, 2011, the US District Court judge hearing the case, found the U.S. Forest Service, which owns the land where the attack occurred, 65% liable, and awarded the boy's estate $1.95 million.

On October 7, 2011, a Utah state District Court judge granted summary judgment to the Utah state defendants, dismissing the family's wrongful death suit. He ruled that Utah policies regarding black bears were "not law" and nothing contained in those policies changed the liability protections of the Utah Governmental Immunity Act.

Different jurisdictions, different party defendants, different laws involved, different result.

OSHA Fines Contractor Following Worker's Death

Thu, 20 Oct 2011 18:28:05 -0500

Last April, in a blog entry Walworth Man's Death at Construction Site Under Lake Ontario Subject of OSHA Investigation, I wrote about a man who was killed while employed boring a water treatment tunnel under Lake Ontario.

Thomas W. Means, age 45, died of a head injury when the small underground train locomotive he was driving ran into a conveyor on the boring machine.

In October, the Department of Labor's Occupational Safety and Health Administration completed its investigation. OSHA blamed the contractor, Southland Contracting Inc., of Fort Worth, TX, and fined it, $55,440 for seven safety violations that OSHA said led to the death.

Six of the violations were "serious", meaning that they could cause a substantial probability of death or serious injury: A fuse blew in the electrical system, causing lights to go out in the tunnel (sixteen stories deep in the earth); the locomotive driven by Mr. Means had "bumper blocks" missing, was pushing an "unattached car", and had not been inspected for modifications and repairs.

OSHA also found a repeat violation by Southland Contracting Inc.: it failed to instruct its employees in anticipating and avoiding "crushing hazards".