Wrongful Death

Published on: November 9, 2022

In a personal injury case, because there was a factual conflict, res ipsa loquitur did not apply. Morejon v. Rais Construction Company, 818 N.Y.S.2d 792 (2006)

by Stephen Bilkis

Res ipsa loquitur is a Latin phrase, which means “the thing speaks for itself.” In order to prevail in a personal injury case, the plaintiff must show that the defendant’s negligent or wrongful actions cause the plaintiff’s injury. Ideally, the plaintiff would have access to direct evidence such as eyewitness testimony, but this is not always the case. In some instances, the only evidence that the plaintiff has is circumstantial evidence. In New York, the doctrine of res ipsa loquitur means that circumstantial evidence may be sufficient to prove liability if the injury was would not normally occur absent negligence. In Morejon v. Rais Construction Company, the plaintiff sought a summary judgement motion based on res ipsa loquitur

Backgound

Fabio Pardo was working for Rais Construction on December 26, 1998, when while delivering materials to a private residence that was undergoing renovation, a roll of roofing material fell from a roof at a construction site and hit Pardo in the head. Eventually, Pardo died. The plaintiff estate of Fabio Pardo filed a lawsuit against defendant Rais Construction Company alleging that Pardo was fatally injured at a construction job while working for Rais Construction because of Rais Construction’s negligence.

Published on: March 14, 2022

Appellate Court rejected claim based on employment-related accidental death. Smith v Park, 2020 NY Slip Op 03583 (3d Dept. June 25, 2020)

by Stephen Bilkis

In the case of the death of a 14-year boy , the appellate court considered whether his death was in the course of his employment as determined by the New York Workers’ Compensation Board, or whether it was due to his employer’s criminal activity.

Exclusive remedy rule

In New York, when an employee is injured or killed during the course of their employment, Workers’ Compensation benefits are the victim’s exclusive remedy. That means that the victim and/or the victim’s family do not have the option of pursuing a personal injury claim against the employer. An exception to the exclusivity rule is where the employer engaged in deliberate acts that caused the victim’s injury.

Published on: September 24, 2012

Defendant Appeals Punitive Damages Award in Wrongful Death Case, New York Appellate Court Decides

by Stephen Bilkis

Heroes are born every day. Often the general population does not learn of their achievements. Sometimes they do learn about the hero. Sometimes, the hero does not know that he or she is a hero until the moment arises that changes their lives. In the early 1980’s, a young mother of two was killed by a New York Transit Train. The 36 year old woman was standing on the platform when she and her four year old son, fell onto the tracks. The woman fought to save her son and get him off of the tracks before the train pulled in. She was not fast enough to save herself.

Her husband filed a wrongful death lawsuit against the New York Transit Authority for creating a dangerous situation that cost the family their wife and mother. The trial court that heard the case determined that the family should be awarded compensable losses in the sum of $890,000. While it is impossible to place a monetary amount on the life of a loved one, the husband did not feel that the award was sufficient to soften his loss. His contention is that his wife had planned to go back to work when the youngest child started high school. She provided services for the home and children that the husband would now have to pay a provider to perform. He contends that the services alone would have amounted to approximately $467,000 over her lifetime. He considered that her lost wages would have run about $325,000. The husband, however agreed to accept the reduced amount of $890,000 in punitive damages.

The New York City Transit Authority appealed the judgment as being too high. They filed an appeal in order to have the amount of punitive damages awarded reduced. The court reviewed the case and determined that the court has sufficiently evaluated the cost that the loss of this mother would have on the family. They accept that they are unable to place a value on the loss of loving support that a mother provides to her children. However, they agreed that the conditions that existed that caused the mother and child to fall onto the tracks, were the fault of the New York city Transit Authority and as such they must pay the awarded amount. The appeal was dismissed and the New York City Transit Authority was ordered to pay the family the allotted amount.

Published on: August 22, 2012

New York Appellate Court Discusses Section 50-i of General Municipal Law

by Stephen Bilkis

The infant claimant, was born on April 10, 1960. On September 30, 1975, while participating in a soccer game between the school he was attending, Tappan Zee High School, and the Pearl River High School Junior Varsit, at the latter school’s field, the claimant allegedly sustained an injury to his foot when it struck a hidden object which was protruding from the ground. The infant claimant filed an application for leave to a file a late claim on December 5, 1977, which date was some 15 months after the effective date of the amendment to section 50-e, and some 26 months after the accident.

The Court cited a Court of Appeals decision on May 4, 1978, that is pertinent in the case at bar. In the said case, the Court said that the State highest Court was concerned with how the new guidelines enacted under the amendment to section 50-e of the General Municipal Law should be applied to claims accruing prior to September 1, 1976, the effective date of the amendment. It held that the Legislature, in enacting the new guidelines, intended to apply them to claims which accrued within one year prior to the effective date of the amendment; but that the amendment did not revive claims that accrued more than one year prior to such effective date.

On March 22, 1978, which was prior to the determination of the above mentioned case by the Court of Appeals, a Lawyer said that the Special Term initially denied petitioner’s application for leave to file notices of claim against both school districts on the ground that the application was untimely since the extension of the time to file such notices could not exceed the time limited for the commencement of the action against the public corporations, namely the period of limitations set forth in section 50-i of the General Municipal Law, to wit, one year and 90 days from the happening of the event.