Wrongful Death Suit for Child in Utero

A New York Law Journal article (password required) reports that the Appellate Division, Second Department based in Brooklyn recently ruled that, under New York law, a wrongful death action brought on behalf of a child who was in utero at the time of his father’s death may proceed to trial over objections tnat child in utero suffered no pecuniary loss. The case is Seaton v. County of Suffolk brought on behalf of the now 8 year old boy whose father, then 20 year old student Jose Colon died in 2002 from gunshots accidentally fired by Suffolk County police during a drug raid involving several ounces of marijuana. The shooting occured three days after Colon learned that his ex-girlfriend was six-weeks pregnant with his child. Seven months later, she gave birth to the son on whose behalf the wrongful death action was filed.

The mother of the deceased Colon joined the mother of his child to sue the county and the police department. The defense moved to dismiss the claims on behalf of the decedent's non-marital child arguing that the case "presents all of the complications associated with a pecuniary loss claim that is proffered on behalf of a fetus: the decedent did not contribute to the support or medical care of the fetus' mother; the decedent was involved in a relationship with a different 'girlfriend' at the time he was allegedly told about the fetus; paternity of the fetus was not established prior to the decedent's death; the gestational age of the fetus was alleged to be six weeks at the time of the decedents' death." Both the trial court and the appeals court rejected the motion relying on NY's Estate, Powers & Trusts Law governing intestate succession. Section 4-1.2 of the EPTL (amended in 2009) states that a "non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if . . . paternity has been established by clear and convincing evidence . . . [and] the father openly and notoriously acknowledged the child as his own." A posthumous DNA test showed clear and convincing proof of paternity.

The case will go to trial with a possible large damages award on behalf of the child. Plaintiffs submitted an affidavit estimating that, based on the decedent's age, education and $11 per hour income at the time of his death, his son suffered a pecuniary loss of income of $1.35 million. The Brooklyn Law School Library has in its New York collection New York Damages Awards: Personal Injury & Intentional Torts (Call #KFN5311.N48) published annually by West. The library keeps the latest 2010 edition which has cases arranged in chapters according to the injured part of the body. The book includes checklists and forms.