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Court Discusses the Contributory Negligence in a Wrongful Death Lawsuit


The plaintiff, who was deceased, drowned when the motor vehicle he was driving broke through a retaining wall, falling into the water. The plaintiff sued to recover damages for wrongful death and conscious pain and suffering. The plaintiff’s estate asserted that the retaining wall was not constructed properly to withstand the impact of a motor vehicle. The defendant, who was the City of New York, argued that the defendant was negligent as the autopsy revealed that the deceased blood alcohol content was .3 percent. The trial court dismissed the case against the defendant. The plaintiff appealed the DUI.

The Appellate Division of the Supreme Court examined the circumstances of the accident to attribute liability to blameworthy party. The accident took place on a foggy morning while the deceased was travelling in a southerly direction swerved across the two southbound lanes and a 12-foot wide sidewalk before colliding with the retaining wall. A section of the retaining wall was knocked out as a result of the collision. The plaintiff’s estate offered expert evidence by a consulting engineer to prove that the wall was not constructed to withstand an impact by a motor vehicle and that partitions which were constructed were not continuous and with impact the partitions could easily break away from each other. The defendant on the other hand provided an expert to testify that the autopsy that the plaintiff’s alcohol content was 0.3 percent in his brain and that he was therefore intoxicated. The New York Personal Injury Attorney rebutted the defendant’s assertion by presenting the last person to see the decease at 5:00 a.m., who stated that he was sober and he only drank one and half bottles of beer between the hours of 2.00-5.00 a.m.

There were no eye witnesses to the accident as such there was a reluctance by the court to attribute any liability to the plaintiff. Where contributory negligence is used as the defense, the plaintiff is presumed to have used due care as there is less stringent evidentiary standards to be applied in a wrongful death action. Questions of contributory negligence of the defendant and speed which the defendant was driving were questions for the jury to consider and decide rather than the judge. The jury was not required to accept the testimony of the expert witness who stated that the defendant was intoxicated , DWI.

In conclusion the Appellate Division of the Supreme Court reversed the decision of the trial court and ordered a new trial with cost in the claim. It was settled that a bridge with carried a vehicle over deep water was a point of danger along highways. Hence, the defendant had an obligation to provide strong retaining walls to hold an automobile traveling at a reasonable speed. Where the accident took place was considered a point of danger and the defendant had an obligation to all motorists that used the roadway. The testimony of the consulting engineer presented doubt of whether the defendant had failed in its duty to provide a retaining wall that between highway and deep water of sufficient strength.

A Staten Island Personal Injury Lawyer can recover all sums that you are entitled to after an accident from a government agency. Where an agency fails to carry out their obligation and an accident results, an injured party is entitled to receive compensation. At Stephen Bilkis & Associates, we offer excellent legal services to assist you with your legal dilemmas to achieve the best results. Our offices are conveniently located throughout New York City and we offer free consultations.

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