Cheryl Thurston lived in a group home facility operated by New York State’s Office for People with Developmental Disabilities. The residents at 8 Hilltop Drive in Pittsford all had developmental disabilities and each was subject to varying degrees of supervision with regard to things like mobility and safety.

Ms. Thurston was mentally and physically handicapped and she had a seizure disorder. There was a written plan in effect prepared by the state that specified, among other things, that she required one on one supervision in the bathtub.

Unfortunately, on August 30, 2008, Ms. Thurston was left completely unattended for several minutes sitting on the toilet while water was running for her bath. When her attendant returned to the room, she found Ms. Thurston unresponsive in the bathtub.

Cheryl had suffered a seizure and then drowned. She was rushed to the hospital but never regained consciousness and was pronounced dead 14 hours later.

Under New York law – Estates, Powers and Trusts Law Section 5-4.3 –  these are the two claims that may be brought to recover damages for a person’s death:

  1. the survivorship claim, which belongs to the estate for the decedent’s pain and suffering prior to death and
  2. the wrongful death claim, which belongs to the distributees (i.e., the heirs) who have suffered a pecuniary loss by reason of the death

In Thurston v. State of New York (Court of Claims 2013), both claims were  dismissed by the judge before trial because (a) there was no proof that Ms. Thurston suffered after she sustained the seizure which rendered her unconscious and (b) she had not been employed and there was no one who incurred an economic loss due to her death.

The judge, Renee Forgensi Minarik, was clearly troubled by her decision finding it “repugnant” that she had to enforce New York’s wrongful death law that “places no intrinsic value on human life.” She called upon the legislature “to address this fundamental injustice” in the statute.

Inside Information:

  • Claimant’s counsel appears to have been aware of the likely dismissal of the case when he argued on the motion that “the facts in this case cry out for an expansionist interpretation” of the statute. Any such expansion now awaits a successful appeal (unlikely) or action by the state legislature (sought repeatedly by advocates such as the New York State Trial Lawyers Association).
  • Cheryl’s sister, Laurie, submitted an emotional affidavit attempting to convince the judge that there was an economic loss flowing from Cheryl’s death.