If a pedestrian is killed by a commercial vehicle and the pedestrian had been using alcohol can the relatives sue for wrongful death?

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If a pedestrian is killed by a commercial vehicle and the pedestrian had been using alcohol can the relatives sue for wrongful death?

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Asked on April 12, 2009 under Accident Law, New York

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Okay, a few things going on here:

1. Did the alcohol use help cause the accident? I.e., was the commercial vehicle obeying the rules of the road but because the guy was drunk (his intervening negligence) caused the accident and thus the driver is not or will not wind up being held liable for the pedestrian's death.

2. Anyone can sue anyone at any time.  The question is will the person win.

3.     §   1601.   Limited   liability   of  persons  jointly  liable.     1.
  Notwithstanding any other provision of law, when a verdict  or  decision
  in  an  action  or claim for personal injury is determined in favor of a
  claimant in an action involving two or more tortfeasors  jointly  liable
  or  in  a  claim  against  the state and the liability of a defendant is
  found to be fifty percent or less of the total liability assigned to all
  persons liable, the liability of such  defendant  to  the  claimant  for
  non-economic  loss  shall  not  exceed  that defendant's equitable share
  determined in accordance with the relative culpability  of  each  person
  causing  or  contributing  to the total liability for non-economic loss;
  provided, however that the culpable conduct of any person not a party to
  the action shall not be considered in determining  any  equitable  share
  herein  if  the  claimant  proves  that with due diligence he or she was
  unable to obtain jurisdiction over such person in said action (or  in  a
  claim against the state, in a court of this state); and further provided
  that  the  culpable  conduct  of  any  person shall not be considered in
  determining any equitable share herein to the extent that action against
  such person is barred because the claimant has not  sustained  a  "grave
  injury" as defined in section eleven of the workers' compensation law.
    2.  Nothing in this section shall be construed to affect or impair any
  right of a tortfeasor under section 15-108 of  the  general  obligations
  law.

4.

     § 1411. Damages recoverable when contributory negligence or assumption  of  risk  is  established. In any action to recover damages for personal  injury, injury to property, or  wrongful  death,  the  culpable  conduct  attributable  to the claimant or to the decedent, including contributory  negligence or assumption of risk, shall not bar recovery, but the amount  of damages otherwise recoverable shall be diminished in  the  proportion  which  the  culpable  conduct  attributable  to the claimant or decedent  bears to the culpable conduct which caused the damages.

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