Articles Posted in Wrongful Death

The Involuntary Manslaughter conviction 6 weeks ago of Michelle Carter, in the texting-suicide death of Conrad Roy III, has generated international attention.  I’ve written previously in my Massachusetts criminal law blog about why I believe this conviction was sound and supported by both the law and the facts.  I’m writing this post today in my Massachusetts Injury Law blog, because a twist has developed in this, involving civil law, not criminal.

Yesterday, a Sentencing Hearing was held before the judge who found her guilty in June of Involuntary Manslaughter in this case, Massachusetts Juvenile Court judge Lawrence Moniz.   I joined host Aaron Keller at Dan Abrams’ LawNewz broadcast yesterday for over two hours of live analysis to examine and discuss Carter’s conviction in this case, and the sentence she received yesterday from Judge Moniz.  That criminal sentence was especially lenient, but did not surprise me.

Some background on sentencing issues, first. The relevant statute in Massachusetts provides for a maximum of 20 years’ incarceration upon a conviction of Involuntary Manslaughter.  The prosecution (Bristol County District Attorney’s Office) asked for a range of 7 to 12 years’ incarceration – in state prison.  Carter’s defense attorney asked the judge to impose no prison time at all, but instead only five years’ probation.  Absent a statute that imposes mandatory minimum sentences upon a conviction, which removes all discretion from a judge, the judge retains discretion in sentencing, between the minimum and the maximum.  Give that this case was in juvenile court, that range runs from no incarceration at all, to a maximum of 20 years in a state prison.

For all of my readers out there, here’s a quick question: Can a city or town police department be civilly sued because of the negligence of their police officers?

The answer is yes, although many people might not have thought so.

There is a story out of the city of Frederick, Maryland that is making national headlines right now, and as a Boston injury lawyer, I hope that the right attorney in Maryland is consulted in this matter. Why? To hopefully file a lawsuit for negligence and wrongful death in this apparently horrific case involving the death of an innocent person at the hands of what at this time appears to be a case of police brutality and police misconduct. The story concerns an unfortunate man with Down syndrome, who simply wished to sit through a second showing of the film Zero Dark Thirty in his neighborhood movie theater. And the desire to do that has left him dead.

Here’s even more proof that you need to exercise extreme caution when you drive near any construction vehicles, if you want to avoid a Massachusetts car accident.

If you’ve ever been traveling behind a large trailer that is hauling heavy equipment and feared that the trailer might fall on top of your car, you’re right to be fearful. This past week a backhoe fell off a National Grid truck, crushing a woman to death, injuring three others, and invoking a Massachusetts wrongful death lawsuit alleging negligence.

Here are the reported facts: In 2011, National Grid had apparently replaced its fleet of heavy, 10-wheeled trucks with smaller, six-wheeled trucks. National Grid drivers soon complained that the smaller trucks didn’t have enough power to properly haul heavy equipment. They asserted that the smaller trucks were difficult to stop and control, especially when going down hills. Despite that, a foreman was instructed to test-drive one of the trucks – one towing a huge backhoe – on the day of the accident.

Financial compensation produced by a lawsuit can never take the place of a loved one who has died as a result of another party’s negligence.

However, such compensation can, at the very least, provide a measure of justice to the victim’s survivors for the loss of companionship, affection and love that they will inevitably suffer as a result of the victim’s death. A lawsuit alleging Massachusetts wrongful death can arise from a number of different circumstances, ranging from Massachusetts medical malpractice, to Massachusetts motor vehicle accidents, to product liability and more. Another area of law that might give rise to a claim of wrongful death, is the law of Massachusetts premises liability. The law of premises liability governs the civil liability of owners of property, commercial or otherwise, when a lawful visitor to that property is injured or killed due to negligence of the property owner.

A very interesting Boston case involving a claim of wrongful death, is grounded in large measure on the principles of premises liability law. The case is the now-famous criminal case involving the “Craig’s List Killer,” where a woman who was renting a room in the Boston Marriott Copley Place Hotel for prostitution, was allegedly killed by Philip Markoff, who was accused of the killing. Mr. Markoff committed suicide while being held in jail awaiting his trial, and as a result was never convicted in the case. The victim was Julissa Brisman, a 25 year-old prostitute. Ms. Brisman’s mother, Carmen Guzman, recently filed the wrongful death suit in Suffolk Superior Court, naming the Boston Marriott Hotel as defendant.

A Worcester, Massachusetts gun manufacturer has agreed to pay the families of two men, one of whom was killed and one who was wounded, to settle a Massachusetts wrongful death suit that resulted after the men were shot from a gun manufactured by Kahr Arms.

Before you wonder why a gun manufacturer would be named as a defendant in a civil suit for damages stemming from the use of a gun that it manufactured: Remember, there is always (as here) a story behind the story: You see, the man who shot the victims was an employee of Kahr Arms, who stole the gun from his employer and then used it to shoot the two victims outside a Worcester nightclub in 1999. That employee had a criminal record that his employer never checked into, and the suit alleged that Kahr should have conducted employee background checks prior to hiring the employee, who was quite dangerous. The suit also claimed that the company should have employed better employee theft-prevention methods to prevent an employee from stealing a gun for illegal use, such as installing metal detectors at the plant to prevent employees from stealing the guns they manufactured.

Guzman’s family and the man who was wounded filed a wrongful death suit against Kahr Arms, and eventually Kahr Arms agreed to pay $600,000 to settle the case before going to a jury. As a Boston/Dedham Massachusetts wrongful death lawyer, it’s easy for me to see why the defendant settled this case. Instrumental in the litigation and settlement of the case was the Brady Center to Prevent Gun Violence in Washington, D.C., named after President Ronald Regan’s Press Secretary who suffered a permanent brain injury in the assassination attempt against Reagan. The Brady Center termed the settlement the largest damages payment to date made by a gun manufacturer accused of negligence in the criminal use of a gun.

This past March, a four year-old boy was killed in an escalator accident at a mall in Auburn, Massachusetts. The boy, Mark DiBona, was pulled by the handrail of the escalator into a 6 ¼ inch gap that existed alongside the escalator. The boy was pulled into the gap that abutted a Plexiglas barrier, and he fell one story to the floor below, suffering devastating head injuries. After doctors determined that the boy suffered extensive and irreversible brain damage, and essentially declared him brain dead, the boy’s parents donated his organs.

Escalator safety inspections are normally conducted by the state. Media reports following this incident caused the Patrick administration to conduct a review of not only when this particular escalator was last inspected and by whom, but also a statewide review of escalator safety inspections in general. This inquiry led to disciplinary action being taken against not only the two inspectors that were responsible for the Auburn mall escalator, but approximately two thirds of the state’s total escalator inspectors, for approving escalators with safety violations that were similar to those that caused Mark DiBona’s death.

Who is legally liable for injuries or death in such a situation? The answer is, potentially a number of different parties. And who brings the suit? When the case involves a fatality, the answer is the executor of the victim’s estate – in this case, the parents of this boy, on behalf of his estate. The potential defendants in a case like this, can be several: The designer of the escalator; the manufacturer of the escalator (if different); the company that installed the escalator; the property owner of the mall, the retailer in whose store the escalator was operating in; the Commonwealth of Massachusetts (who employed the escalator inspectors); and possibly other potential defendants. The legal reason why so many potential defendants are named is because each party may have played a role in the constellation of events that ultimately led to the injury or death that is the result of this suit.

The most recent example of how social media has come to bring the culture in this country down even further, is yet another tragic tale: Tyler Clementi, an 18 year-old gay student at Rutgers University, took his life earlier this week by jumping off the George Washington Bridge in New York City. The reason for his suicide: His roommate, Dharun Ravi, and Ravi’s classmate, Molly Wei, secretly videotaped sexual encounters between Clementi and another gay man, and then. according to published media reports, posted the video on YouTube. Humiliated and desperate, Clementi took his life.

The tragic sequence of events began with a Twitter post sent on Sept. 19 by Ravi: “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.” Later that night, according to investigators, Ravi used a video camera that he had set up in his dormitory room to live stream Clementi’s intimate encounter on the Internet. Three days later, Clementi, by all accounts a fine person and an accomplished violinist – killed himself by jumping from the George Washington Bridge into the Hudson River. A promising young life that could have brought beautiful music into the world, amidst all the ugliness this world can offer, gone. This is just the latest in a series of deaths by young American, all of which followed the online posting of vicious and hurtful material.

The Middlesex County, New Jersey District Attorney’s office have charged Clementi’s roommate, Dharun Ravi, 18, of Plainsboro, N.J., and Molly Wei, 18, of Princeton Junction, N.J., each with two counts of invasion of privacy for using “the camera to view and transmit a live image” of Mr. Clementi. In addition, Ravi was charged with two additional counts of invasion of privacy for attempting to post a similar live feed on the Internet on Sept. 21, the day before Clementi’s suicide. In New Jersey, the most serious charges carry a maximum sentence of five years.

In my previous post on this story, I discussed the horrific events surrounding the murders of the wife and two daughters of Dr. William Petit, in the 2007 Cheshire, Connecticut home invasion murders. I’ll now discuss why I believe there is a distinct possibility that the Cheshire Connecticut Police Department may possibly be exposed to a civil liability suit for negligence and wrongful death, owing to the police department’s failure to act in a reasonable or timely manner to rescue the Petit family.

To begin with, a (very) quick review of the tort of wrongful death: As I explain on my website page dealing with wrongful death, this is a rather broad legal term that is used to describe a situation where the death of a person would not have taken place under the circumstances that it did, except for some negligence that occurred on the part of another party. The circumstances surrounding a “wrongful death” can be varied: A loved one might have died as a result of medical negligence, a motor vehicle accident, a construction injury, or a defective product. A wrongful death suit is usually brought by a family member or a representative of the deceased victim’s estate. (If such a suit were brought here, the party filing the suit and seeking damages would be the representative(s) of the estate(s) of Dr. Petit’s wife and two daughters. A wrongful death suit seeks the recovery of damages for the surviving family’s or the estate’s benefit as a result of the victim’s death.)

Were such a suit brought in this case, the plaintiff(s) would have to show that, but for the Cheshire Police Department’s failure to intervene in a timely manner to rescue Dr. Petit’s family, Mrs. Petit and Dr. Petit’s two daughters would not likely have perished. This could either be a daunting task, or a fairly easy one, and the success or failure of such a suit would likely come down to expert testimony. The plaintiff(s) would need to produce experts in the field of law enforcement and hostage situations, to show that the Cheshire Police Department’s failure to take any action other than to place themselves outside the Petit home, for almost 35 minutes, was unreasonable given the specific circumstances present.

Normally, this story would be posted on my Massachusetts criminal law blog. But I feel that it deserves to be discussed here, for reasons illustrating the legal concepts of negligence and wrongful death. This is an appallingly frightening story, nightmarish in its reality, and stunning in what appears at this time to be shocking negligence on the part of a local police department in Connecticut.

On July 23 2007, at 9:17 AM, a woman walked into a Connecticut bank, and in the process of withdrawing $15,000.00 in cash, explained to a teller as calmly as she could, that her husband and two daughters were being held hostage by two men who had invaded their Cheshire, Conn., home the night before. She told the teller that the armed invaders assured her that if they did not receive this money, that her husband and daughters would be killed. Trying desperately to appear inconspicuous, the woman, Jennifer Hawke-Petit, explained to the teller that she had been driven to the bank by one of the kidnappers, that he was watching her from the car, and also told the teller that the kidnappers had told her (Mrs. Petit,) that if the police were called, the armed invaders would kill her family. The woman then collected the $15,000.00 withdrawn from the account by the teller, and left the bank.

The bank manager was alerted to what had just transpired, and immediately called the Cheshire, CT Police Department. At 9:21 AM, Cheshire Police first learned of the hostage situation. About three miles away, her husband William and daughters Michaela, 11 and Hayley, 17 were being savagely beaten and terrorized by the armed invaders. At 9:26 AM, Mrs. Petit left the bank and got into the car waiting for her. She was closely watched by bank employees, and the bank manager provided a description of the vehicle to Cheshire Police, who were also given Mrs. Petit’s home address. At that same time (9:26 AM,) police cruisers were dispatched to the Petit home, to “set up a perimeter.” At 9:27 AM, a Police Department Captain ordered his officers to not approach the home. For the next thirty minutes, not a single officer approached the Petit home, or did anything to save the Petit family. Within this very time frame, the Petit family was being traumatized, tied up, beaten with a baseball bat, and one of the daughters raped. Worse, during this entire time frame, no other authorities were alerted to this situation by the Cheshire Police Department – not the Connecticut State Police or the State Police SWAT Team, not EMS or medical rescue personnel, not the Fire Department.

My apologies for not having posted here for awhile – I’ve been sidelined with either a minor flu or bad cold. Not a big deal; worse things can happen to people.

As the story behind today’s post makes very clear. This is the story of a very promising young student attending Harvard University, where he was embarking on a career toward medical school, and who showed all the promise that one could ask for. Tragically, that promise was cut short when the student, John Edwards of Wellesley, aged 19, committed suicide on November 29 2007. This past week, his parents filed a wrongful death suit against Harvard University, alleging that Edwards received substandard care from the University’s Health Services, which caused or contributed to his suicide.

Edwards originally sought help at the college’s health services office, because he reported that he was unable to study or concentrate for long periods of time. A nurse practitioner at the school’s infirmary prescribed Edwards “Adderall“, which is a drug that is designed to treat attention deficit hyperactivity disorder (“ADHD”, as it’s sometimes referred to.) In what I as a Massachusetts medical malpractice lawyer find surprising to say the least, the nurse prescribed this drug, even though Edwards had never been diagnosed with this condition. Some time afterward, when Edwards complained of anxiety and depression, the nurse practitioner also prescribed Edwards two additional medications: Prozac and Wellbutrin, which of course are powerful antidepressants. An important element in all this, is that Edwards was already taking another medication to treat acne, Accutane, and this drug is been widely linked to generating suicidal thoughts in patients who take it.

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