Published on:

Court Deals with Tragic Case Involving Death of a 14 Month Old Child


On 8 May 2007, JG died, fourteen months old, as a result of burns she sustained in a fire that occurred at her apartment on 15 June 2006. The apartment was rented by her mother, TC. A New York Family Lawyer said it was occupied by the decedent, her mother, her infant half-brother AC, and her mother’s boyfriend, RJ. AC and RJ also died as a result of the fire. On 27 August 2007, Mr. FBL, the Monroe County Public Administrator, issued limited letters of estate administration, and thereafter retained C & B, P.C. to commence an action for the wrongful death and conscious pain and suffering against the City of Rochester, the County of Monroe and the landlord, AW. After an extensive discovery over a period of nearly four years, a settlement was reached with AW in the amount of $100,000.00, representing his full liability insurance policy limit, to be divided equally between the three deceased plaintiffs. And, the County and the City jointly offered $30,000.00 to be divided between the three plaintiffs. In addition, the Monroe County Department of Human Services agreed to reduce its claim against the estate for the decedent’s medical care from $68,035.52 to $12,524.50.

A New York Child Custody Lawyer said that due to decedent’s age and nature of her injuries, the Public Administrator proposed allocating the decedent’s portion of the settlement proceeds entirely to the conscious pain and suffering. On 1 July 2011 the Public Administrator filed a Petition to approve the proposed settlement pursuant to EPTL §5-4.6. Meanwhile, a Guardian ad Litem, Atty. FGM, Esq. was appointed to represent the interests of the decedent’s father, RG, who was under incarceration after a felony conviction. On 23 August 2011 at the court return date, both Guardian ad Litem and private counsel Atty. JAK, Esq. appeared on behalf of RG in which FGM was thereafter relieved. On 9 September 2011 JAK entered formal objections on behalf of her client. She argued that both the proposed gross settlement amount and the proposed distribution to the decedent’s estate were inadequate, and she also disputed the alleged withholding of requested documents from the litigation file of C & B, P.C. related to their reported disbursements. Additionally, she argued that C & B, P.C. had an incurable conflict relating to the simultaneous representation of all three plaintiffs in the suit against the landlord.

A Westchester County Family Lawyer on 4 April 2012, the Public Administrator filed an investigatory memorandum analyzing the liability and damages in the underlying estate litigation. He argued that the proposed settlement was appropriate based on issues of proximate cause and contributory negligence, as well as the lack of pecuniary damages due to the young age and unconsciousness of the decedent. Based on this review, the Public Administrator concluded that it was likely that the plaintiffs would have recovered nothing if the case had gone to trial.

A Westchester County Child Custody Lawyer said that DAK responded on behalf of her client via correspondence dated 12 April 2012 in which she explained her conclusion that the number of fire alarms in the decedent’s apartment was not building code compliant. She did not address the other issues raised by the Public Administrator, including the problems of proximate cause, contributory negligence, damages, governmental immunity, and the evidentiary deficiencies of the case.

Numerous chambers conferences were held in an effort to reach a settlement between the parties, but JAK was adamant that her interpretation of the applicable building codes relating to smoke detectors was correct, that would lead necessarily to an increased recovery on behalf of her client. The Public Administrator thereafter filed a Motion for Summary Judgment. On 30 July 2012 in response, the counsel for the objector filed an Affirmation opposing the motion. On 21 August 2012, the decedent’s mother sent correspondence to the Court joining in the Public Administrator’s Motion and stating that the decedent’s father was not involved in any way in the decedent’s life, paid no child support, did not attend her funeral, and was unnecessarily holding up the settlement for selfish reasons.

During estate litigation, it is within the duty of the Surrogate to decide whether or not to approve the settlement. In the exercise of this judgment, it must take in account the best interests of the parties involved. In order to make this determination, the Court must judge the fairness and reasonableness of the settlement based on the strengths and weaknesses of the underlying case. Accordingly, contrary to the objector’s legal position, the disposition of the instant Motion for Summary Judgment does not hinge upon whether the smoke detectors were properly installed or operating, but rather on the totality of the case and surrounding circumstances.

Mr. RG’s objection to the amount of the settlement is focused entirely on the theory that Monroe County and the City of Rochester are liable for the decedent’s death because had there been additional smoke detectors installed in the apartment, the decedent’s mother’s boyfriend would have timely rescued the members of the household. The objector repeatedly cited various residential and fire code provisions to argue that the decedent’s apartment was not building code compliant. In particular, the objector argued that the smoke alarms were required to be adjacent to all rooms used for sleeping purposes. However, the City of Rochester did not adopt this provision for the existing one and two family residences until early 2008. Section 90.10(A) of the City Code of Rochester, effective 24 July 2003 requires only one smoke detector adjacent to the sleeping areas in one and two family dwellings. There is no evidence on record that the decedent’s apartment was not in compliance with this requirement.

Furthermore, if the case had gone to trial, regardless of the status of the smoke detectors, obvious issues relating to the proximate cause of the decedent’s injuries and the contributory negligence of her caregiver would inevitably have arisen. In addition, the liability of the County and the City may have been dismissed on the basis of the doctrine of governmental immunity, which prevents the imposition of liability upon a municipality for failure to enforce a statute or regulation. As decided in Carter v. City of New York (2004) claims against the City of New York for failure to properly inspect inoperable fire escape and sprinkler system after death of a child due to house fire was dismissed.

Absent issues of liability, the adequacy of the proposed settlement must also be analyzed in relation to the pecuniary injuries suffered as a result of the decedent’s death under EPTL§ 5-4.3. In this case, despite the extensive mental anguish suffered by the family as a result of the death of a young child, there is rarely adequate proof of economic circumstances justifying a jury to award damages. Further, RG would most likely not be able to provide evidence of any expectation of support from his minor child due to his lengthy incarceration.

RG argued that it is inequitable for the settlement proceeds to be shared equally by the parties because TC will receive a greater share of the proceeds than him. This argument failed to recognize that TC was also injured in the fire. In the settlement, TC is being compensated not only as a beneficiary of the estate of the decedent, but also for her own personal injuries due to the fire, and as a beneficiary as well of the estate of her other infant child, AC. RG could neither claim the same as a beneficiary nor victim because he was not the father of AC, and was not in the apartment at the time of the fire, so he did not suffer pecuniary damages from the physical injuries as those sustained by TC.

The equal division of the settlement proceeds among the three plaintiffs was the result of a reasonable recovery for the decedent. While she was hospitalized the longest, there is no evidence that the decedent ever regained consciousness. She was asleep at the time the fire began and as it spread quickly. At trial, the plaintiff would have had the initial burden to prove consciousness after the accident to justify an award of damages for pain and suffering. While there may be circumstantial evidence of her consciousness sufficient for a jury to award a greater sum, the likelihood is not such that the Court will find the proposed settlement unreasonable. On the remaining concerns of the objector as regards the disbursements requested by C & B, PC, these costs were itemized in their filings, and reviewed both by the Public Administrator and the Court in chambers conferences with JAK, and deemed to be legitimate and reflective only of actual costs incurred in the action on behalf of the decedent. Therefore, in accordance with the above findings, it was ordered and decreed:

(1) That the objections to the Petition to Compromise the actions commenced by the Estate of JG were dismissed; (2) The Administrator of the Estate of JG was empowered to compromise and settle the claim for pain and suffering and wrongful death against AW, upon payment of the sum of $33,333.33 by the insurer of AW; (3) The Administrator of the Estate of JG was empowered to compromise and settle the claim for pain and suffering and wrongful death against the City of Rochester and the County of Monroe upon the payment of the sum of $10,000.00; (4) The entire recovery is allocated to the cause of action for the pain and suffering of the decedent; and finally (5) The final account of the Estate of JG shall be judicially settled and allowed in accordance with the Decree.

Losing a loved one is already heartbreaking much more if she is your daughter in her tender years. Estate litigation should not be burdensome for those left behind. Our Kings County Estate Lawyers, specifically, Kings County Estate Litigation Lawyers, at Stephen Bilkis & Associates are aware of the sensitivity of these cases and want to help you get through with it. Just visit us anytime or dial our toll free number which can be found at our website.

Contact Information