Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Wrongful Death

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After 4 children died and 360 suffered injury in 1200 strollers incidents that occurred from 2008 through 2012, the U.S. Consumer Product Safety Commission recently proposed a federal safety standard for strollers.

The report of incidents would scare any mother or caregiver. In one of the fatal accidents the head of the infant became entrapped between the seat and the tray. In the second fatality the infant’s head was wedged between the car seat of a travel system and a metal bar located under the cup holder. In the third accident the stroller collapsed on the child resulting in asphyxiation. In the fourth incident the stroller fell off a dock and the child drowned, however there were not sufficient details to define whether incident was product related.

Among the non fatal incidents reported injuries were mostly lacerations requiring stitches, tooth extractions, fractures head injuries and partial amputation of fingers.

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Temporary workers have a high risk of suffering fatal injury on their first days of work because they are untrained and not aware of hazards specific to the workplace. Often employers failed to provide safety training to temporary workers or, if some instruction was given, it inadequately addressed the hazard, and this failure contributed to their death.

OSHA recently launched a new initiative to protect temporary workers from work hazards. Among the new measures created, field inspectors will assess if employers using temporary workers are complying with their responsibilities under the Occupational Safety and Health Act and will check that training is provided in a language that the temporary worker can understand.

OSHA indicated that in recent months, they have received an increased number of reports of temporary workers being killed on their first days in a new position. One of the highest profile cases was the death of a 21-year-old temporary worker in August 2012 at the Bacardi Bottling’s plant in Jacksonville. Lawrence Daquan “Day” Davis was crushed to death by a palletizer machine on his first day at work.

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A new version of the Construction Chart Book: The U.S. Construction Industry and its workers was recently released by the Center for Construction Research and Training.

Here are some of the most interesting findings and graphs related to Fatal and Nonfatal Injuries:

– Electrical Power-Line installers are the most at risk to die in a construction accident

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A recent study on safety in hospitals conducted by Consumer Reports shows that hospitals are not a safe place to be.

For this study Consumer Reports magazine ranked more than 2000 hospitals based on the following criteria:

-Infections aquired in hospitals
-likelyhood to be re-admitted in 30 days
-communication issues around drugs and discharge
-likelyhood to get too many CT scans
-likelyhood of complications

Dr John Santa, director of Consumer Reports’ Health Ratings Center, was recently on “CBS This Morning” (see video below) to express his concerns.

In the New York area, out of 70 hospitals studied, 58 hospitals rank below the national average when it comes to safety.

Among these hospitals 27 out of the 28 teaching hospitals are scoring below average with some of them among the worst of the nation. The only teaching hospital in the New York region that scores above average is the the Winthrop Hospital in Mineola, NY with a safety score of 58 out of 100.

Teaching hospitals are supposed to lead by example as they are training the future doctors of our nation. It is an alarming fact that most teaching hospitals in the New York area are actually the most unsafe in the country.

In the New York area, the worst teaching hospitals when it comes to safety are the Kings County Hospital Center in Brooklyn, N.Y. with 22 points, the Bronx-Lebanon Hospital Center Health Care System in the Bronx, N.Y. with 25 points, the Westchester Medical Center in Valhalla, N.Y. with 28 points, Harlem Hospital Center in New York City with 28 points and the Jacobi Medical Center in the Bronx, N.Y. with 29 points.
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The Bureau of Labor Statistics recently published the initial release of the Census of Fatal Occupational Injuries.Here is a summary of their findings:

The 2011 preliminary total of 4,609 fatal work injuries represents a slight decrease from the final count of 4,690 fatal work injuries reported for 2010
The preliminary rate of fatal work injuries in 2011 was 3.5 fatal work injuries per 100,000 full-time equivalent workers, down from the 2010 final rate of 3.6.

More fatal work injuries resulted from transportation incidents than from any other event.
Roadway incidents alone accounted for nearly one out of every four fatal work injuries in 2011.


In 2011, falls to a lower level accounted for 541 fatal work injuries. Of those cases
where height of fall was known, 57 percent involved falls of 20 feet or less.

Roadway incidents accounted for the greatest number of work-related transportation fatalities. Of these, 512 deaths resulted from a roadway collision with another vehicle. Pedestrian vehicular incidents constituted the second greatest number transportation-related fatal injuries Continue reading →

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On April 24, 2009 a 40 year old woman died in a gas explosion that took place in her house in Floral Park, Queens, New York. The defendant in this action, Consolidated Edison, was notified of the gas leak by a neighbor of the woman; however, the Con-Ed workers were not timely dispatched to evacuate residents in the area. As a result of the negligence of Con-Ed, the woman was never notified of the gas leak nor was she evacuated from her home. The gas explosion was severe – – the house was demolished and the woman was killed. Three children were left without their mother. The woman’s husband was left without his wife.

In a record settlement, Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf settled this claim for $12,400,000.00. This is one of the largest settlements in New York for a Wrongful Death case. “The woman who died was a wonderful mother to her children and a loving wife,” said Rubinowitz. “It is indeed unfortunate that no one listened to the warnings of a concerned neighbor – – he tried so hard to do the right thing. If only Con-Ed had just paid attention to a known fact and followed proper protocol this never would have happened. While I realize that no amount of money can compensate for this family’s loss, I am very pleased that we were able to provide financial security for the needs of this family who lost so much in this terrible explosion.”


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By Anthony Gair;

Resolution of whether a plaintiff has a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988. New York’s wrongful death law which limits damages to pecuniary loss is clearly inconsistent with the Constitution and laws of the United States.

In Sinkov v. AmeriCor, Inc., 419 Fed. Appx. 86,(2d Circ.,2011) an action for wrongful death of a decedent with no dependents The Court held;

“AmeriCor correctly points out that under New York law, post-death lost-earnings damages are not recoverable in wrongful death cases where a decedent leaves behind no dependents and no persons who reasonably expect to receive future support from him. See Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 199-200 (2d Cir. 2002); Zelizo v. Ullah, 2 A.D.3d 273, 769 N.Y.S.2d 255 (1st Dep’t 2003). Had the district court admitted Dr. Crakes’s earnings testimony as bearing on plaintiffs’ state law claims, we would agree that his testimony was irrelevant and should have been excluded. But that is not what the district court did. The record makes clear that Dr. Crakes’s testimony regarding loss of earning capacity was introduced only for, and was explicitly limited to, the estate’s 42 U.S.C. § 1983 claim.

The New York authority on which AmeriCor relies does not address the extent of damages permitted in an action for violation of constitutional rights. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have long recognized that when state law damages limitations conflict with the purposes of § 1983, we need not defer to those limitations. We have concluded in the past, for example, that New York’s survival statute was inconsistent with § 1983 because (at the time) the New York statute “prevent[ed] the survival of claims for punitive damages after the death of the plaintiff’s decedent.” McFadden v. Sanchez, 710 F.2d 907, 911 (2d Cir. 1983). In McFadden, we stated that we have no doubt that limitations in a state survival statute have no application to a [§] 1983 suit brought to redress a denial of right that caused the decedent’s death. To whatever extent [§] 1988 makes state law applicable to [§] 1983 actions, it does not require deference to a survival statute that would bar or limit the remedies available under [§] 1983 for unconstitutional conduct that causes death.”

In the oft-cited case Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.

In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.
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The family of Javier Salinas — the 36-year-old construction worker from Danbury, Connecticut who in October fell more than 50 feet to his death at the Chelsea Piers construction site in New York City — is suing his former employer, the worksite general contractors and the owners of the property where he died.

The dangers inherent to a construction site are well-known and can be prevented if simple, common-sense precautions are in place. Those dangers are particularly well-known where there are elevation-related risks involved. In fact, specific laws have been enacted to protect workers whose job requires them to perform construction activities in areas that are elevated. In this instance, a worker was killed because he was installing a roof over 40 feet in the air on a windy day. A strong gust of wind caused him to lose his balance and fall from the roof striking to a concrete slab on the ground below. The Wrongful Death of this 36-year old worker left his wife without a husband and their three children without their father. The entire accident could have been avoided if owner and contractors had taken steps to insure that there were proper safety harnesses or railings in place. In addition, a Site Safety Manager or Construction Foreman could have exercised some common sense and told the workers to not install the roof that day because it was too windy or that they should not install the roof until the safety devices were in place. Apparently, there were no safety devices at all and a tragic death occurred.

The available safety devices that would have prevented this accident include both safety harnesses and safety railings. A construction safety harness is necessary for any job that involves vertical travel or work at an elevation. Approximately 37 percent of serious injuries and deaths at construction sites are attributed to falls. Safety harnesses are attached to life lines via lanyards, which are designed to minimize injury from “jerk back” during a fall. The OSHA and ANSI requirements for safety harnesses, life lines and lanyards are matters of public record and are disseminated throughout the construction industry. In addition, OSHA compliant fall protection railing systems are also readily available and well-known throughout the construction industry to eliminate falls from roofs, open floors, and other hazardous areas on construction sites.