Family of ejected Bills fan plans to sue for wrongful death

[Homegrown]

hmmm ....
The smoke signals were noticeable last December (http://profootballtalk.nbcsports.com/2012/12/02/fan-death-in-buffalo-raises-questions-about-ejection-procedures/). Now, it’s becoming obvious that a wrongful-death lawsuit will be filed on behalf of a man who died after being ejected from a Bills game in November 2012.
According to WGRZ, the family of David Gerken, Jr. has filed formal notice that it intends to sue Erie County (http://www.wgrz.com/news/article/217600/37/Son-Died-After-Bills-Game-Now-Family-Preps-Wrongful-Death-Suit). The claim will focus in part on the quality of lighting and fencing at a spot where Gerken fell into a creek and drowned. The suit also will apparently attack the decision to eject Gerken while intoxicated and allowing him to walk away from the stadium by himself.
Erie County owns Ralph Wilson Stadium, and Gerken’s family alleges that Erie County is therefore responsible for the safety of its patrons, even if they are tossed out of the building.
Complicating the situation for Gerken’s family is that Gerken called his brother, who also was attending the game. Gerken told his brother that Gerken had been ejected, and they agreed to meet at a nearby bar after the game.
If the case ever goes to trial, it will be difficult to get a jury to place responsibility on Erie County for Gerken’s safety after leaving the stadium when Gerken’s brother decided to stay and watch the game. The legal theory based on the lighting and fencing gives Gerken’s family a path around that predicament. It could make sense to focus on that argument only, and to avoid completely the idea that his brother decided not to leave the stadium with Gerken.
A jury possibly will have a hard time making anyone else responsible for Gerken’s death when his own brother chose staying at the game over protecting him. The best strategy for the family’s lawyers could be to do whatever is necessary to keep that fact out of the case.
Dealing with intoxicated fans presents a challenge for stadium operators, from a liability standpoint. A stadium that doesn’t eject a drunk fan, risks liability to someone they may injure in the stadium. A stadium that detains them until they are sober or until someone is available to accompany them risks a false imprisonment claim. And if, as the folks in Buffalo did, a stadium summarily ejects a drunk fan, the stadium operator faces a potential claim if something happens to them after they leave the premises.http://profootballtalk.nbcsports.com/2013/06/23/family-of-ejected-bills-fan-plans-to-sue-for-wrongful-death/

[TigerJ]

I think one of the real problems with our society is the widespread tendency not to hold people accountable for their own actions. The fault of the county because he was ejected for being drunk? Puhleeze. The county is liable because a creek is not brightly lit and fenced? Put me on the jury. This guy chose to get drunk. His brother chose to let his brother leave alone. If one of my kids does something stupid and gets him/herself killed as a result, I'll feel badly but my reaction is not to look anywhere else I can to point fingers.

[BillsFever21]

Are they supposed to have a chaperon waiting for all of the drunks they kick out of a stadium to take them to where they need to go?

[THRILLHO]

I just cannot see the point in suing because a family member died. The money cannot bring your family member back to life. To me it seems like a way to take advantage of a crappy situation and try to profit from it.

[better days]

Are they supposed to have a chaperon waiting for all of the drunks they kick out of a stadium to take them to where they need to go?

If this family wins one cent in this suit, you can bet in the future all drunks will be chaperoned by the police where they need to go..........................to JAIL.

[JoeMama]

Frivolous lawsuit.

I know the death of this kid is sad and awful and the family is obviously devastated but this case doesn't deserve the time of day in our already backlogged court system.

Erie Co. can't create a perfectly hazard free environment in or around the stadium. They just cant.

Something PFT points out that is valid is how Eric Co. is in a lose/lose situation.

If they don't eject drunks, they run the risk of another fan being attacked or harassed.

If they detain drunks, they run the risk of false imprisonment.

If they eject drunks, they now run the risk of being sued for whatever drunken mayhem they get into afterward.

The bottom line is, you assume a great deal of risk every time you drink heavily. YOU assume that risk. Not anybody else. And sometimes people make catastrophically bad decisions when drinking that result in injury or death. IE; car accidents, wandering off in inclement weather, getting into a physical altercation, etc.

I don't see how this is on Erie Co. Maybe they could deny alcohol to already inebriated fans at concession stands, but that requires a lot of subjectivity that may be impractical to enforce.

[Typ0]

I think the question is did he purchase alcohol while in the stadium. If he did, then the way the law works they assume a responsibility in his drunken behavior. They assume that because they are selling alcohol. So it's a pretty sticky situation if you ask me. And the brother might also have been intoxicated and purchasing alcohol at the stadium.

They really need a drunk tank it's not that complicated.

[Jan Reimers]

Two words: Personal Responsibility.

[The King]

It was pretty clear this was coming.

[MidnightVoice]

They really need a drunk tank it's not that complicated.

Just make it an alcohol free zone - breath tests on entry must be below the legal limit, and all water is free to drink :D

[Typ0]

How can you be personally responsible when your judgement is tainted by alcohol though? It goes back to where he got the alcohol. If they want the revenues from it they also have to act responsibly ... you are an ex bar owner right?

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Just make it an alcohol free zone - breath tests on entry must be below the legal limit, and all water is free to drink :D

but they want to make the money from the beer sales...

[OpIv37]

How can you be personally responsible when your judgement is tainted by alcohol though? It goes back to where he got the alcohol. If they want the revenues from it they also have to act responsibly ... you are an ex bar owner right?

- - - Updated - - -



but they want to make the money from the beer sales...
You can't be serious.

"Sorry officer- I'm not responsible for driving drunk. My judgment was tainted by alcohol so I didn't know I shouldn't have been driving."

"Sorry I knocked that guys teeth out officer-I never would have fought him if my judgment wasn't tainted by alcohol."

If you choose to drink alcohol, any subsequent bad judgments you make are your own responsibility. And I say that as someone who drinks frequently.

[Typ0]

When someone serves someone alcohol who is intoxicated they assume some of the responsibility it's just the way it works. You don't get the license to serve alcohol without that being a part of it. If someone gets drunk at a bar and kills someone driving the bar is partly responsible.


You can't be serious.

"Sorry officer- I'm not responsible for driving drunk. My judgment was tainted by alcohol so I didn't know I shouldn't have been driving."

"Sorry I knocked that guys teeth out officer-I never would have fought him if my judgment wasn't tainted by alcohol."

If you choose to drink alcohol, any subsequent bad judgments you make are your own responsibility. And I say that as someone who drinks frequently.

[OpIv37]

When someone serves someone alcohol who is intoxicated they assume some of the responsibility it's just the way it works. You don't get the license to serve alcohol without that being a part of it. If someone gets drunk at a bar and kills someone driving the bar is partly responsible.

Except that it's not always possible to tell if someone is intoxicated when you serve them alcohol. On a small bar where the bartender can see the patrons, maybe, but at the stadium, all someone has to do is tell the beer vendor what kind of beer they want and pay for it. Unless the person is completely hammered, the interaction is too short to tell if someone is inebriated. On top of that, the guy's brother or someone else may have bought the beers for him.

[cookie G]

When someone serves someone alcohol who is intoxicated they assume some of the responsibility it's just the way it works. You don't get the license to serve alcohol without that being a part of it. If someone gets drunk at a bar and kills someone driving the bar is partly responsible.

Unless the Dram Shop act has changed in NY recently, it doesn't apply to injuries of the intoxicated person, only to people he or she injured.

It is well settled that there is no Dram Shop Act cause
of action for an individual injured due to his or her own
intoxicated condition. Thus, in Searley v. Wegmans Food
Markets, the Fourth Department held that the plaintiff
could not prevail under the Dram Shop Act where the
defendant unlawfully sold alcohol to the plaintiff’s minor
son but no other individual besides the minor sustained
injuries.23

http://www.shaferglazer.com/pdfs/NY_Dram_Shop_Liability.pdf

So yeah, if he was in a car accident and injured another..that person might have a cause of action.

But it can't be claimed for injuries to himself.

[Typ0]

This is a little different though. In this case they are claiming the drunken person was subsequently unleashed into a maze of hazards. It's just not that far fetched that the deep pockets were damaging in this case...enough so that the attorneys filed the case. Erie county will probably settle. If it were to go to trial they could be on the hook for a huge amount of money were they to lose. Also, considering the residents of Orchard Park hate the stadium there I would not want a jury full or orchard park football haters.


Unless the Dram Shop act has changed in NY recently, it doesn't apply to injuries of the intoxicated person, only to people he or she injured.

It is well settled that there is no Dram Shop Act cause
of action for an individual injured due to his or her own
intoxicated condition. Thus, in Searley v. Wegmans Food
Markets, the Fourth Department held that the plaintiff
could not prevail under the Dram Shop Act where the
defendant unlawfully sold alcohol to the plaintiff’s minor
son but no other individual besides the minor sustained
injuries.23

http://www.shaferglazer.com/pdfs/NY_Dram_Shop_Liability.pdf

So yeah, if he was in a car accident and injured another..that person might have a cause of action.

But it can't be claimed for injuries to himself.

- - - Updated - - -

In short...it's a money grab.

[Bill Cody]

This is a little different though. In this case they are claiming the drunken person was subsequently unleashed into a maze of hazards.

From personal experience the entire world is hazardous when you're drunk

[cookie G]

This is a little different though. In this case they are claiming the drunken person was subsequently unleashed into a maze of hazards.

That part doesn't really make a difference. Not as far as the drunk guy is concerned.


Based on the circumstances of this case, the Supreme Court was correct in declining to impose liability upon the respondent since it owed no duty to protect the plaintiff from the consequences of her voluntary intoxication

Livelli v. Teakettle Steakhouse.
http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19950206_0041626.NY.htm/qx

In that case, the plaintiff could not claim Dram Shop liability when he was served while intoxicated.



It's just not that far fetched that the deep pockets were damaging in this case...enough so that the attorneys filed the case. Erie county will probably settle. If it were to go to trial they could be on the hook for a huge amount of money were they to lose. Also, considering the residents of Orchard Park hate the stadium there I would not want a jury full or orchard park football haters.

I think here's where it gets a little tricky..something i hadn't realized. Under the Dram Shop Act in NY..the parents can make their own claim for loss of support and funeral expenses, because the statute permits injury to a "means of support"

How they have to prove loss of support, I don't know.

They can't sue for loss of services or loss of society/companionship, however.

http://scholar.google.com/scholar_case?case=14964116651232418447&q=Schrader+v.+Carney,+198+A.D.2d+779&hl=en&as_sdt=2,5&as_vis=1


In short...it's a money grab.

Agreed

[Historian]

They really need a drunk tank it's not that complicated.

I was under the impression that every NFL stadium had a small jail in it.

[Typ0]

I was under the impression that every NFL stadium had a small jail in it.

yeah for when people are arrested....that's a little different. They should have a drunk tank just to hold people until they sober up but not necessarily charge them with a crime.

[ThunderGun]

They really need a drunk tank it's not that complicated.

Really? So what happens when a fight breaks out in the drunk tank and somebody gets killed? You can bet your ass the county and the team will get sued, for keeping a cage full of rowdy, violent drunks.

[Typ0]

I think your example is also a little tricky. If you go to an event like this a reasonable person would assume the grounds were well lit and free of hazzards like hidden streams and what not. In the case you are sighting the person was not even on the grounds of the defendant and hit a tree driving off a public road. Every reasonable person knows there are trees and you should stay on the road. Not every reasonable person knows there are unsafe places to walk on the stadium grounds. If anything you assume a reasonable amount of safety when you go there and no disclaimer any lawyer tries to put on a ticket is going to get rid of that. Now if that woman who got loaded at the steakhouse walked out into their parking lot and fell into a pot hole and died...the outcome would have been different.


That part doesn't really make a difference. Not as far as the drunk guy is concerned.


Based on the circumstances of this case, the Supreme Court was correct in declining to impose liability upon the respondent since it owed no duty to protect the plaintiff from the consequences of her voluntary intoxication

Livelli v. Teakettle Steakhouse.
http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19950206_0041626.NY.htm/qx

In that case, the plaintiff could not claim Dram Shop liability when he was served while intoxicated.



I think here's where it gets a little tricky..something i hadn't realized. Under the Dram Shop Act in NY..the parents can make their own claim for loss of support and funeral expenses, because the statute permits injury to a "means of support"

How they have to prove loss of support, I don't know.

They can't sue for loss of services or loss of society/companionship, however.

http://scholar.google.com/scholar_case?case=14964116651232418447&q=Schrader+v.+Carney,+198+A.D.2d+779&hl=en&as_sdt=2,5&as_vis=1


Agreed

[Typ0]

Really? So what happens when a fight breaks out in the drunk tank and somebody gets killed? You can bet your ass the county and the team will get sued, for keeping a cage full of rowdy, violent drunks.

those people will then be charged criminally and taken to the jail.

[better days]

those people will then be charged criminally and taken to the jail.

I agree. they have a jail cell in the stadium in Philly & have had for years.

Obviously someone has to keep an eye on the drunks. If some drunk gets agressive towards the other drunks taze him no questions asked.