The circumstances under which a Buffalo family may bring a wrongful death lawsuit are very diverse.  There are, however, some basic legal requirements that must be met before such a lawsuit may be pursued.

New York State law provides that the personal representative of a deceased person (such as the executor of a will or other individual legally responsible for the administration of the estate) may bring a wrongful death lawsuit so long as there are living distributees to the estate.  In other words, there must be family members entitled to the estate who have survived the victim of the wrongful death.  The wrongful death claim generally may be brought against any person who would have been liable to the decedent for their wrongful conduct if the victim had not died.

In most cases, a wrongful death lawsuit must be commenced within two years of the victim’s death.   When the actions of the defendant have also led to criminal charges being filed, however, the representative of the deceased person has at least one year from the conclusion of the criminal case to bring a wrongful death lawsuit, even if this extends beyond the normal two year time limit.

If you have lost a loved one due to another’s wrongful actions, please feel free to reach out to us at 716-542-5444.  We would be happy to answer your questions.

The purpose of a Buffalo wrongful death lawsuit is to ensure the surviving parties are compensated for their loss.  While no amount of money can replace a loved one, there are some specific areas – such as lost income to the household – where a cap on recovery may cause undue hardship to the decedent’s family.

As a result, under most circumstances there is no actual cap on how much the survivors can recover following a wrongful death.  Also, section 5-4.3 of the Estates, Powers and Trusts Law provides that in addition to the types of damages permissible under the law, “the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees [of the decedent's estate], or for the payment of which any distributee is responsible, shall also be proper elements of damage.  Interest upon the principal sum recovered by the plaintiff from the date of the decedent’s death shall be added to and be a part of the total sum awarded.”

Moreover, the law provides that if a wrongful death was caused by the reckless or intentional conduct of the defendant, the survivors are entitled to punitive damages just as they would be in a personal injury lawsuit.  Punitive damages are awarded to the survivors for the purpose of punishing the defendant for his or her conduct and are over and above other damages such as reimbursement of medical expenses or lost income.

Nearly all matters handled by Buffalo personal injury attorneys are limited by a statute of limitations that bars a claim being brought after a certain amount of time has passed.  The statute of limitations is not the same for all types of claims and may vary depending upon the circumstances of the case.  Moreover, each state has its own rules regarding the statute of limitations and, as a result, an action that could be commenced in one state several years after an injury or death may be time-barred in another state.

The statute of limitations for most claims involving wrongful death is set forth in section 5-4.1 of the Estates, Powers and Trusts Law.  This law requires that in most cases, a claim for wrongful death be filed within two years of the decedent’s passing.  This is shorter than the typical three year statute of limitations for personal injury cases in New York State.

While there are exceptions to this two year rule, the one most likely to apply in most wrongful death cases is set forth in the same statute.  If a criminal action has been commenced against the individual who caused the wrongful death, a civil claim for wrongful death does not have to be filed with a court until one year after the criminal action has terminated, even if this extends the timeframe for filing beyond two years.  The purpose of this law is to ensure that the pursuit of the civil action does not interfere with the criminal case.

If a member of your family has suffered a wrongful death and you have any questions, please feel free to call us 716-542-5444.  We would be happy to help you.

The region surrounding Buffalo includes several beautiful New York State parks and natural area.  While the public is encouraged to enjoy the recreational opportunities afforded by these parks and may be exposed to certain risks as a result, the State has an obligation to maintain these parks in a reasonably safe condition.  

The State owes the same duty of care to keep its property in reasonably safe condition in view of all of the circumstances as any private citizen. The scope of that duty varies depending upon the foreseeable harm.  As part of the State’s duty to keep its property reasonably safe, it has a duty to warn of a dangerous condition that is not open and obvious.

In Arsenault v. New York State, a family vacationing at Taughannock Falls State Park was struck by falling rocks.  The mother was killed in the rock fall, and the father and two infant children were injured.  Because there were several signs warning visitors not to approach the area where the rock fall occurred due to the potential for falling rocks, the State sought to have the case dismissed prior to trial based on the theory that it had provided adequate warning of the danger and, in any case, the danger was obvious.  The injured parties claimed they did not see the signs.

When hearing the case, the Court noted that whether the signage was adequate could not be determined as a matter of law and that the defendant’s own submissions confirmed that many people violated the warnings – calling into question their sufficiency.  As a result, the Court determined that a jury would have to weigh the facts and determine whether the warnings offered by the State were reasonable under the circumstances.

When a family in Buffalo suffers the loss of a loved one due to a wrongful act or negligence on the part of another, the personal representative of the estate may bring a lawsuit to recover damages.  The personal representative is usually the executor. 

If the personal representative of the estate refuses to pursue a claim, the distributees of the deceased individual are entitled to have an administrator appointed who will pursue the claim on their behalf.  In most cases, such a claim must be pursued within two years of the wrongful death.

Generally, the estate of the decedent has a claim for the deceased individual’s pain and suffering, and the distributees have a claim for loss of income and services to the household that were provided by the decedent.  The claim of the distributees is limited to economic loss and does not include an award for sorrow, mental anguish, injury to feelings or loss of companionship.

If damages are recovered and there are multiple distributees – for example, multiple surviving children – each distributee receives a proportion of the damages equal to his or her pecuniary loss.  How much each person actually receives is determined by the court following a hearing on the issue.

If a member of your family has suffered a wrongful death and you have any questions, please feel free to contact my office at 716-542-5444.  We would be happy to help you.

When a Buffalo family suffers the loss of a loved one in an accident, the emotional difficulty of dealing with that loss often is only the beginning of their problems.  If the deceased individual was relied upon to provide the family with financial support, the loss may lead to long term economic hardship in addition to emotional trauma.

Fortunately, if the family member was lost as a result of the negligence of another party, the family may be able to recover damages as compensation for the income and support that individual would have provided had they not died.  To obtain fair compensation for the family, there are several factors that must be presented to the judge or jury making the determination.

These factors include how many years the individual would have been expected to work, his or her income and likely future income, fringe benefits, such as health insurance, that must be replaced, and household services provided by that individual that now must be performed by someone else.  The total dollar amounts allocated from these factors may, in turn, be reduced by items such as the amount of income that would have gone towards that individual’s personal support and, possibly, projected future income tax payments.

If your family has suffered a loss and you have any questions, please feel free to call my office at 716-542-5444.

Parents in Buffalo should be aware that the U.S. Consumer Product Safety Commission and Baby Matters LLC, of Berwyn, Pa., have issued a voluntary recall of an apparently dangerous product.  30,000 Nap Nanny® portable baby recliners sold between January 2009 and July 2010 have been recalled.  These items were sold in retail stores nationwide and online, including at www.napnanny.com. 

This recall follows a report of a four month old girl who died in a Nap Nanny® being used in a crib.  Preliminary reports indicate that she was found in her harness hanging over the side of the product, where she had become caught between the Nap Nanny® and the crib bumper.  Use of the product in a crib is against the product’s instructions.

CPSC and Baby Matters have received 22 reports of infants hanging or falling over the side of the product even though most of the infants were in the harness.  Infants can partially fall out or hang over the side of the Nap Nanny® even while the harness is in use.

More information can be found at www.cpsc.gov/cpscpub/prerel/prhtml10/10309.html.  The company’s recall hotline is (800) 638-2772.

If you have purchased this item, please discontinue using it immediately.  If you have lost a family member as a result of a dangerous product and wish to discuss your legal rights following a wrongful death, please feel free to call my office at 716-542-5444.  We would be happy to help you.

The crash of Continental Connection Flight 3407 in Clarence Center last year resulted in the wrongful death of 50 individuals and impacted the lives of families throughout the Buffalo area.  This week, during an appearance before the House Aviation subcommittee regarding the proposed merger between Continental and United Airlines, the CEO of Continental, Jeffery A. Smisek, instead found himself being questioned about Continental Airlines role in the crash.

In the sixteen months since the crash, it has emerged that the pilots of the plane, who were employees of Colgan Air, a smaller, regional airline hired by Continental to handle the flights, had not been fully trained in the use of the plane’s stall-recovery system.  When asked about this fact, Mr. Smisek replied that Continental was not aware of the training deficiency and “That’s the responsibility of the FAA.”

Lawmakers were not satisfied with this response, leading to additional questioning regarding Continental’s commitment to safety and the monitoring of subcarriers that it hires.  Continental’s CEO had never previously been questioned regarding his company’s conduct relating to the crash. 

The airline crash has already resulted in the introduction of new legislation that should result in additional training requirements for airline pilots.  It remains to be seen what impact, if any, CEO Smisek’s comments will have on pending lawsuits brought on behalf of the families of those who died in the crash.

As the summer swimming season in Buffalo arrives, a case involving the wrongful death of a teenager who drowned in a public swimming pool across the state has been sent down for a new trial.  This sad case arose from the drowning death of Jeremy Williams, an eighteen year old who suffered from epilepsy and drowned after suffering a grand mal seizure while swimming.  It will be retried because, although the City of New York was found to be 25% liable for Jeremy’s death, the original jury declined to award any damages for his pain and suffering during the eleven days before he died.

Pain and suffering awards can be much more difficult to address in wrongful death cases than in situations where the injured party survived and can attest to his or her degree of suffering.  Generally, New York State law requires that for pain and suffering damages to be awarded, it must be demonstrated that the deceased had some level of awareness of his or her condition prior to passing away.

 In Jeremy’s case, a doctor testified that hospital records indicated that during the 11 days he was hospitalized prior to his death, he could squeeze the nurse’s hand on request, mouth words, open his eyes in response to verbal and visual stimuli, and respond to touch and painful stimuli.  He would turn his head in the direction of a voice calling his name and had some degree of brain function for several days following the incident.  The doctor also testified that, in his opinion, Jeremy suffered pain in that time.

The appellate court found this unrefuted testimony sufficient to establish that pain and suffering should be awarded in this case and, as a result, the jury’s decision to award zero damages for pain and suffering was wrong.

If someone suffers a wrongful death in Buffalo, their estate can sue for the pain and suffering that individual experienced prior to death.  This area of law may, however, be a very difficult to prove.

Unlike other issues that may form a basis for monetary compensation in a wrongful death case, such as loss of the deceased’s future income, pain and suffering is very subjective.  This problem is compounded by the fact that, unlike a personal injury case, the individual who suffered pain obviously cannot provide testimony regarding the experience. 

As a result, the degree of pain and suffering experienced usually can only be determined based on factors such as how long the deceased individual survived after being injured, whether he or she was conscious, and the testimony of other individuals about what that individual seemed to be experiencing.

Because of the variety of factors involved and its subjective nature, the amount of compensation awarded for pain and suffering in wrongful death cases varies greatly.  An experienced personal injury attorney can provide guidance regarding how important a role this factor should play given the specific facts surrounding a wrongful death.