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What Happens When a Wrongful Death Victim Can't Speak for Herself?

What Happens When a Wrongful Death Victim Can't Speak for Herself?

When a motor vehicle accident results in the victim's death, his or her heirs may attempt to recover damages through a wrongful death lawsuit against the negligent parties. New York courts treat such cases differently than those where the victim survived. In a 1948 decision, New York's Court of Appeals established this principle in a case where the victim was run over and killed by a New York City subway train. At trial, his estate was unable to establish certain facts regarding the accident. For example, it was unclear how he got onto the subway tracks and whether or not he was unconscious before the train hit him. In support of the City of New York, the defendant, the subway train operator testified he did not see the victim on the tracks until it was too late for him to avoid a collision.

The jury returned a verdict for the City. The Court of Appeals ordered a new trial, however, citing the trial judge's failure to properly instruct the injury. “In a death case such as this,” the Court said, “the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” In other words, while a living plaintiff has to demonstrate he did not contribute to the accident, it is impossible for a deceased plaintiff to do so. Therefore the courts must afford a wrongful death plaintiff greater leniency in pleading his or her case.

Maura v. ACL Leasing, LLC

Here is a recent example of how this principle applies. In this case, a woman was hit and killed in Manhattan by a bus owned by a private company. The woman's sister filed a wrongful death lawsuit against the driver and owner of the bus. The case was removed to federal court (because the sister is not a New York resident) and the defendants asked a federal judge to award them summary judgment.

The judge declined to do so. In a December 2014opinion, the judge noted the similarities between this case and the 1948 Court of Appeals decision discussed above. Like the earlier case, the bus driver here claimed he never saw the victim until it was too late. Indeed, the driver told police he never hit anyone at all, nor did he even see the deceased trying to cross the street. The deceased, of course, could not personally refute this testimony.

But the judge cited the NYPD's own report stating the defendant's bus hit the victim. The judge also noted the defendant’s credibility was at issue, as the wrongful death lawsuit is premised on the bus driver's allegedly negligent operation of his vehicle. There is certainly a factual dispute on this point, as well as whether or not the plaintiff contributed to her own death. But these are questions a jury needs to sort out, according to the judge. The fact the victim cannot testify to clear up these inconsistencies does not, by itself, justify dismissing the case.

Cases like this demonstrate the legal complexity of wrongful death actions. If you have lost a loved one due to the negligence of a driver and need advice from an experienced New York personal injury lawyer on how to proceed,contact our office right away.

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