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Wrongful Death Suit Brought by Unborn Child of Father Goes Forward

December 9, 2010
A  New York appellate Court reviewed the question of whether a child, who was in six weeks in utero, when his father met his untimely death, could bring a wrongful death action against the killer.  The court found that the child, who had the same DNA as his father, could seek damages for his father’s death.
 
The story arose when a 20 year old student, Jose Colon, was leaving a Long Island home as Suffolk police officers were approaching for a drug raid.   An officer tripped on a tree root, bumped into another officer, who then accidentally fired his gun, killing Jose Colon.   Jose’s death came days after learning his on-again/off-again girlfriend was pregnant; hence, the wrongful death filing on behalf of Jose’s son by his girlfriend, the mother of his child.   
 
Was the relationship between the father and child too speculative to go forward?  The New York Supreme Court recognized it was not for the father and son shared the same DNA. 
 
I wholeheartedly applauded the decision for in Cincinnati I had dealt with a similar and heart-wrenching  case representing a child who was in utero when her father died in an untimely death.  Here, too, the  DNA testing settled the paternity question, and the father’s girlfriend sued on behalf of the child.  With my own eyes, I saw that the essential nature of the bond between father and child could never be deemed “speculative.”   The child so looked like her father in the bloom of youth that relatives would be moved to remember their own childhoods with him.  The child, a mirror image of the father she never met,  shared so much that was him, from the way they both could write and read at three to the way they smiled broad beaming grins.  While I worked mightily to bring  justice, I knew  no award could ever compensate this girl of the loss of a father who would have understood her in a way that no one else ever could, their relationship borne out of a shared set of genes, a common genetic make-up, family ties only dissolvable through this untimely death.  So, I took pleasure in reading today’s decision that enshrines in the common law what is common sense. 
See the Wall Street Law Blog for the full story on the NY legal decision:  http://blogs.wsj.com/law/2010/12/09/unusual-new-york-wrongful-death-suit-allowed-to-move-forward/
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