Miami Personal Injury Lawyer - Wrongful Death

A Family's Liability- when a family is negligent, does the liability extend down the family chain?

Gabrielle D'Alemberte — Mon, 24 Aug 2009 18:24:03 GMT

On July 26^th 2009, Diane Schuler loaded her 2 children and three nieces into her car and hit the road, returning home to Long Island after a weekend of camping. This was 9:30 in the morning. By 1:30 in the afternoon, Schuler, her nieces, one of her children, and three men from another vehicle were dead; killed in a head-on collision after Schuler drove for almost two miles the wrong way down the Taconic Parkway. The most recent toxicology reports from Schuler’s autopsy suggest that at the time of her death she had extremely high blood alcohol levels and had recently smoked marijuana. At this time, prosecutors have declined to file criminal charges, saying that “Diane Schuler died in the crash and the charges died with her.”

In the wake of this tragedy, the families of the three men killed are considering filing a variety of civil suits. They have publically, through the media, condemned her and her family members and said the civil suits are the only way to enforce justice is served. This piece is just a brief examination of what sort of wrongful death suits might be filed, and under what legal theories. The following discussion will assume that Ms. Schuler was in fact drunk at the time of the accident.

Most wrongful death suits are filed under a negligence theory, and this matter will probably not be an exception. Simply put, negligence means that the defendant had a duty toward the plaintiffs to take reasonable precautions to avoid causing injury, defendant failed to take those precautions, and the plaintiffs were actually injured as a result. In the current matter, it seems fairly clear that Diane Schuler was negligent. We all know that driving while drunk is dangerous. Reasonable people, therefore avoid doing it. The more interesting question is who can be sued.

If Schuler was negligent, her estate can be sued. Potentially the company insuring the car she was driving can be sued. The car was actually owned by, Warren Hance, Schuler’s brother, so he might potentially have been liable. This last theory is known as the doctrine of negligent entrustment. It means that if the plaintiff can show that Hance knew, or should have known that his sister was drunk, that Hance may have been negligent in allowing her to drive his car. At this time it does not appear that Schuler had begun drinking before she began driving, so this last theory is unlikely to be a winner.

Schuler’s autopsy indicated that she had ingested at least 10 shots of vodka and had high levels of THC, a metabolite of marijuana, in her bloodstream. This sort of binge drinking is often indicative of a long-term substance abuse problem and attorneys for the families of the three men killed have suggested that Schuler’s family must surely have known of any such problem. If this is so, the question becomes, were those family members negligent in allowing Schuler to drive that day, and should the families of those killed be allowed to recover from them?

This is a question that doesn’t appear to have been previously litigated, and ultimately the answer will come down to how far we, as a society, think duty should be extended. We have laws that hold sellers of liquor responsible for harm caused by their customers, but we don’t generally hold social hosts responsible for damage done by their drunken guests.

If Diane Schuler did have a substance abuse problem, which her family denies, how closely related would a family member need to be in order to be held legally responsible for her behavior? Her husband, surely, but who else? Three completely innocent people are dead here, and their families should receive restitution, to the extent that is possible. However, as a society we need to decide just how comfortable we would be if we personally were held responsible for the actions of our families.

Originally posted at InjuryBoard by Gabrielle D'Alemberte

Psychiatrist Charged in Woman's Overdose Death

Jenny Albano — Tue, 04 Mar 2008 18:25:56 GMT

Last week Miami-Dade prosecutors charged psychologist Adam Feder with manslaughter in connection with a the death of a woman who overdosed on painkillers. Feder was also charged with one count of trafficking illegal drugs and seven counts of obtaining a controlled substance.

Rachel Finzi began seeing Feder after she became depressed over the health of her boyfriend who had been severley injured in a car accident. Two years after Finzi started attending sessions with Feder, she overdosed from painkillers that were given to her by psychologist. The two had also begun dating; Feder was almost 40 and Finzi was 20.

On Monday, Finzi's family announced they were filing a lawsuit against Feder and the clinic he worked at, Compass Health Systems, with negligence. The lawsuit alleges that Feder used his sexual relationship with Finzi "to exert dominion and control over her." The suit also claims that the clinic was negligent because they failed to supervise Feder and let him have access to other doctor's prescription pads that he used to write Finzi prescriptions.

According to the State Attorney's Office, Feder was illegally writing prescriptions to supply Finzi with oxycodone. She died May 24, 2006, at his Miami apartment after swallowing several pills "at the conclusion of a heated argument" over a breakup. Feder told Miami-Dade police that Finzi vomited, complained of hearing problems and slept for much of the next 24 hours, but that he did not call for medical help because "she asked me not to," according to the arrest warrant affidavit.

When police asked Feder why he was illegally writing prescriptions, he claimed to not have a good answer to that. Police also recovered 27 grams of oxycodone and prescriptions in other names in his apartment.

Originally posted at InjuryBoard by Jenny Albano

$156,000,000 Verdict Against Terrorists Thrown Out

Seth Miles — Mon, 31 Dec 2007 12:43:50 GMT

The United States Court of Appeals for the 7th Circuit overturned a $156,000,000 verdict against the terrorist organization, Hamas. The case stemmed from David Boim, a 17-year-old student, being gunned down in 1996 while waiting with other students at a bus stop in Beit El, on the West Bank. The Court said that the judge in the case had failed to require the parents to properly show a link between the boy's death and the fundraising activities of the charities. The case will be returned for a new trial. Unfortunately, the Court really missed the boat on this case. I have handled several similar cases.

It is very difficult to acquire hard evidence. Defendants, who are often state-sponsored, are intransigent; the United States government is often hostile to the case, citing diplomacy concerns; and Courts are loathe to try and hold Defendants responsible. Meanwhile, these most culpable of Defendants, escape laws Congress enacted that were specifically intended to hold them responsible. All in all, a very disappointing ruling.

Originally posted at InjuryBoard by Seth Miles

Parasailing Accident Similar to Past Case Tried by Firm

Staff Writer — Tue, 21 Aug 2007 09:45:03 GMT

This past Saturday, two teenage sisters went parasailing near Pompano Beach. According to the Miami Herald, while they were in the air, the winds turned gusty and the rope that tethered them to the boat snapped. They hurdled past the shoreline, hit a thatched roof shelter and then slammed into the second floor of the Beachcomber Resort. Jeannete Lewis, attorney and partner of The Haggard Law Firm tried a similar case involving a parasailing accident that took place in the Bahamas.

Tosha Walker's mother recovered a $1.8 million verdict in a lawsuit she filed in Miami for her daughter's death in a parasailing accident in the Bahamas. It was her daughter's first parasail ride. Tosha was riding in tandem with a friend. She was told she had to ride tandem with her friend because she did not weigh much and because of the windy conditions. In actuality, the parasail company wanted to make sure that both riders got their parasail ride (and their money's worth) before the ominous storm off in the distance moved in.

Photographs taken by friends on the boat as the happy tandem riders were tethered showed some clouds off in the distance, clouds that, as photographs were taken during the short ride, showed the darkening clouds looming ever closer to the boat. With the nearing of the storm, came winds and gusts, - gusts which caused the poorly maintained rope to snap and the parasail at that moment became a slave of the wind. The tandem riders were blown out to sea as they descended to the waters. Dragged underwater for several hundred feet, Tosha drowned.

Factors in the case were that Tosha and her companion were riding in a 32 foot parasail. The parasail was too large for the windy conditions. Windy conditions dictate either that a smaller parasail be used or that no parasailing activities take place at all. Moreover, saltwater is very harmful to the rope fibers and requires that ropes be checked consistently and frequently. The kind of rope used is important as well. Certain rope is more vulnerable to the effects of salt water than others.

Crashing into buildings is nothing new in the parasailing industry. Inside Edition did a piece after Tosha Walker died. Her mother was featured in the piece pleading for standards to be drafted and enforced so that this would not happen to any other mother, father, sister or brother. The piece had news footage of several parasailing incidents in which the riders were blown into buildings. To date, the industry remains largely unregulated by the US Coast Guard.

The Haggard Law Firm serves it clients both domestically and internationally and is committed to maintaining the highest ethical standards of professional representation and civility in the practice of law.

For more information on this subject matter please refer to the section on Wrongful Death.

Originally posted at InjuryBoard by Staff Writer

Court says legal father, not biological dad, should sue on behalf of dead son's estate

Staff Writer — Mon, 05 Feb 2007 10:17:13 GMT

A recent article in the South Florida Sun-Sentinel reported that the biological father of a boy who was shot and killed by a Delray Beach police officer has no right to sue on behalf of the 16-year-old's estate, the 4th District Court of Appeal ruled Wednesday.

In affirming an earlier ruling that Kenneth Miller should be considered Jerrod Miller's legal father, the court also took a swipe at Terry Glover, the biological father who was attempting to be appointed personal representative of the estate.

"Glover stated that he knew of his probable fatherhood shortly after the children were born yet failed to take any action to declare his parenthood or to develop any relationship with the children until after Jerrod's death," the ruling said. "What is more, Glover allowed another man to be a `father' to his children and to be obligated to pay child support for both boys for 11 years."

Glover did not raise the twins and saw them on a limited basis, but he now has a solid relationship with Jerrod's twin brother, Sherrod, he said Wednesday. Sherrod Miller, now 18, recently moved into Glover's Orlando apartment.

"This boy has been through a lot," Glover said.

A rookie Delray Beach police officer shot Jerrod Miller in the head as the unlicensed teen drove his uncle's car on the breezeway of the Delray Full Service Center during a school dance in February 2005.

Several months after Jerrod's death, Glover tried to claim paternity. The twins' mother died in 2003, and under Florida law, the legal heir would be their father. A court-ordered DNA test showed Glover was the biological father.

But the appeals court was not swayed by the DNA, ruling that an earlier paternity judgment naming Miller the father should stand.

"Miller is Jerrod's father in the eyes of the law, regardless of the results of DNA testing," the ruling said.

Miller signed the boys' birth certificates and raised the boys as his own, going to sporting events with them, disciplining them and talking to them about girls, the appeals court said.

Patrick Cousins, Glover's attorney, said he was disheartened by the court's ruling and is evaluating whether to appeal to the Florida Supreme Court or ask for a rehearing.

"We worked very hard to secure the release of that DNA test," Cousins said. "Then after going through that ... we finally found the truth. Now getting this decision gives us pause."

He added that he doesn't know where the judges got some of their facts, noting that the information about Miller signing the birth certificates was not even in evidence and that he was not the father figure they portrayed. Miller never shared the same address as the boys, Cousins said.

Miller's attorney, T.J. Cunningham, said Willie Gary would file a wrongful-death lawsuit as soon as Miller is formally appointed personal representative of the estate. Gary, a high-profile Stuart attorney, previously notified Delray Beach that the estate would settle the case for $7.5 million.

Cunningham said he was elated by Wednesday's ruling.

"This was never about Kenneth Miller," he said. "It was for the siblings. The siblings are really taking the death of Jerrod very, very hard. He wants to make sure Jerrod's siblings are taken care of."

That's also Terry Glover's goal, Glover said. Both he and Cousins are mystified by Wednesday's ruling, wondering how it will affect the rights of other natural fathers.

"It's crazy," Glover said. "They're telling people that blood means nothing. I've never heard of that."

Originally posted at InjuryBoard by Staff Writer

Boot Camp Wrongful Death Lawsuit Postponed

Staff Writer — Thu, 18 Jan 2007 11:29:17 GMT

A judge announced yesterday that the wrongful death lawsuit filed against two boot camp guards will not begin until the criminal trial is over. Guards at a Panama City Boot Camp beat and kicked Martin Lee Anderson in early January 2006. The beating was caught on videotape and has been seen on local and national news stations around the country.

Seven drill instructors and a camp nurse stand charged with aggravated manslaughter of a minor in the case. If convicted, they could be sentenced to up to 30 years in prison. The guards are due to enter pleas today in Panama City.
U.S. District Judge Robert Hinkle ruled that because the lawsuit involves the guards, their right against self-incrimination prevents them from taking the stand in their defense at the civil trial, The News Herald reported.

Anderson's family claimed the boy was denied proper medical care and filed a $40 million wrongful death suit against the guards, the Bay County Sheriff's office and the Department of Juvenile Justice.

Originally posted at InjuryBoard by Staff Writer