He was doing his job.

He was making a delivery.

He was delivering Chinese food. 

On his bicycle.

At the same time a tree cutter was busy cutting down a tree.

Not an uncommon occurrence.

This was post-hurricane Sandy maintenance.

They were both in Coffey Park in Red Hook Brooklyn at the same time.

Someone said this was a freak accident.

It wasn't.

A tree cutting company had been hired by the Parks Department to cut down trees.

Presumably it was to remove damaged or potentially damaged trees.

A park advocate claimed his death was entirely preventable.

Eyewitnesses report that the tree toppled over and hit this bicycle rider on his head crushing him.

According to the New York daily news "This tragic death was entirely preventable had basic safety protocols been followed,” said Geoffrey Croft, president of New York City Park Advocates. “Both the private contractor and the city were negligent.”

When tree cutters cut trees, there are safety protocols that should be used to protect the safety of pedestrians in the vicinity.  

The NY Daily News also notes "Witnesses said a Parks Department employee was cutting down the tree at the time, while another crew member held a traffic flag and was trying to direct the deliveryman away from the area, which was not sectioned off from traffic."

Why would the Parks Department be responsible if a tree being cut down by contractor fell and killed the bicycle rider?

There is an important legal concept called vicarious liability that might apply here.

It means that an employer is responsible for the acts of its employees.

Assuming the Parks Department hired a contracting company to prune trees and to replace damaged trees, there is likely legal language in their contract to indicate who is responsible if something should go wrong.

These contracts basically say that the person or company who hires a contractor is not really the one who did the improper work.  

If someone gets hurt and sues the Parks Department and the City of New York, the contract likely says that if they are held responsible to pay money to compensate an injured victim, then the contractor, who actually caused this injury, will be obligated to pay that amount of money and reimburse them.

Legally, that is often known as a hold harmless agreement.

The purpose of entering into a contract with this phrase is to say

“Legally, we may ultimately be responsible to an injured victim caused by your carelessness. We recognize that if we are sued and have to pay money to someone who is hurt because of your carelessness, you are obligated to repay us that same amount of money.”

Let's say for example that the surviving family of this bicycle rider were to sue the contractor who cut down this tree. They would also need to sue the Parks Department and the City of New York. You could not simply sue one without the other.

Legally, they are intertwined because of a government entity, a municipality or a municipal agency, hiring a contractor to do tree maintenance work.

One of the issues that will confront an attorney who investigates this type of case is to determine what safety protocols were in place at the time the tree was being cut down.

  • Were there cones warning pedestrians and bike riders of the tree cutting work?
  • Was there a flagman directing traffic away from the tree cutting equipment?
  • Was there any signage or tape to keep pedestrians and bike riders away from the area where they were working?
  • Were there any visibility problems?
  • Did this happen in the daylight or at dusk or after dark?

The park advocate quoted above concludes that the city of New York and the tree cutting contractor were negligent and failed to follow safety protocol.

The article in the NY Daily News fails to identify what specific information this park advocate relied on in order to reach that conclusion.

It may be that safety protocols were not followed. 

If they weren't, the clear argument would be that had simple safety protocols been implemented, this horrible accident would easily have been prevented.

The sad reality is that this deliveryman is now dead.

Crushed to death by a tree that was being cut down.

Cut down by a company hired by the Parks Department of the City of New York.

Should this family decide to bring a lawsuit, they would need to name as defendants the guy who actually cut down the tree, the tree cutting company itself & the City of New York. You must name each of those people, agencies and companies that are believed to have participated in the hiring, contracting and performing of this tree maintenance work.

Then, further investigation and discovery would be needed to sort out why this contractor was hired and for what purpose.

Critical to this case would be the knowledge of the tree cutter and his tree cutting company about safety protocols required and actually in use on the day this tree crushed this bicycle rider.

The contract between the Parks Department and the tree maintenance Company would also be important to review.

There is a very good likelihood that once the contract between the city of New York and the tree maintenance Company were revealed, it would likely include the phrase I discussed earlier called a hold harmless agreement.

From the surviving family's standppoint, does it make a difference who actually pays the money in any type of settlement or verdict?

The answer is, it might depending upon the percentage of responsibility each party bears.

From the family's standpoint, a big concern is making sure that they are compensated for all the harms, losses and damages incurred because of someone else's carelessness. The family is not overly concerned with which person or company is making full payment or partial payment.

For example, if this case were ultimately to go to trial and the jury determines that the city of New York is 100% responsible for this delivery man's tragic death, in that instance, the city of New York would be required to pay the full amount.

If that occurs, the city would enforce that hold harmless agreement and require the contractor who actually performed the tree cutting to repay the city the full amount they paid to the surviving family.

This scenario gets even more interesting if a jury were to determine that the city was partially responsible, the employee who cut down the tree was partially responsible and the tree maintenance company was partially responsible.

The bottom line is that from reading these articles the New York Post and the New York Daily News, this tragedy never should have occurred.

You'd expect that someone cutting down a tree would recognize and see pedestrians or bike riders in the vicinity and wait to make that final cut.

Likewise, as a bicycle rider, you have an obligation to see those things that are apparent & visible around you. If you ignore safety rules, safety cones and workmen in an area where tree cutting were taking place, I'm sure the defense will argue that he had an obligation to stay clear of this dangerous area.

To learn more about how accident cases work here in the state of New York, I invite you watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer