The wife came to court for his husband’s injuries and death claims allegedly resulting from breach of warranty and strict liability in an injury. The complainant further claims that the single utility vehicle accident was caused by the failure of one of the car’s steel belted radial tires. The complainants admit that the tire company has answered the sixty-eight inquiries they served upon the tire company.
The accused on the other hand assert that the complaint establishes the tire company’s product liability for the man’s death upon theories of negligence, strict injury liability and breach of warranty in connection with the manufacture and sale of the tire. The complaint also alleges that the man’s death was conscious for an undetermined period of time prior to the car accident and that the tire company is liable upon the same theories for his pain and suffering.
The question is whether the complainant is entitled to a deposition of the accused after having served written inquiries upon the tire company. A New York Injury Lawyer said after commencement of an action, any party may serve upon any other party a written inquiry. A party may not serve written inquiries on another party and also demand a bill of particulars nor, in the case of an action to recover damages for an injury to property or an injury resulting from negligence or death and take a deposition without leave of court.
The law does exclude the use of inquiries in all wrongful death actions regardless of the underlying theory of recovery pleaded. The court recognized the difficulties associated with the language and was careful to confine its decision to the specific issue raised rather than assuming the Legislature’s function.
There is still a difference between a personal injury and property damage claims and the wrongful death claim. But now the difference need to choose between inquiries and a deposition which exists in all wrongful death cases without regard to ground, but, with respect to personal injury and property damage cases, the election is necessary only in those based on negligence. A Suffolk County Personal Injury Lawyer said when not so based, the two devices are apparently to be available without a special court order.
When an injured party asserts in a personal injury action both negligence and breach of warranty claims, the courts have been compelled to draw a careful line between the two theories and have permitted the service of inquiries only with respect to the breach of warranty claim notwithstanding that the two claims stem from the same accident.
It is not possible to draw such a line between the personal injury and wrongful death claims in the present case. Realistically, the accused tire company could not be deposed solely regarding the personal injury aspect of the lawsuit without also disclosing matters that are relevant to the wrongful death claim. The matter would be true whenever a wrongful death allegation was present, since the factual underpinnings of such claim necessarily involve all the causes of action asserted. However, the law prohibits the issue from occurring in the absence of granting a prior leave of court.
It was held that since the fourth cause of action was essentially a claim for general damages arising out of the deceased person’s death and the inquiries were properly stricken. In upholding the denial of the complainant’s motion for a protective order for reasons not relevant, the court noted that the law as it read prohibited written inquiries in actions for death or for injury or property damage based on negligence. A Long Island Personal Injury Lawyer said the amended law lifted the absolute prohibition so as to allow written inquiries to be obtained in all actions, upon certain conditions and restrictions, the need to seek leave of court in a wrongful death case.
Therefore, a party in any action involving a wrongful death claim may only proceed by seeking leave of court to serve written interrogatories and depose the same party. The tire company has already responded to sixty-eight inquiries served by the complainant as noted and the complainant did also attend the deposition of the tire company taken by the co-accused. The complainant has failed to demonstrate any special circumstances to support its application to depose the tire company and leave to depose the tire company is denied.
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