New Jersey Supreme Court Justice Files Lawsuit After Husband’s Auto-Related Death

Cole was hit by a car in a supermarket parking lot in August 2011. According to witnesses, a car operated by Breanna Divito rolled backwards and hit Cole in the thigh, after which he fell and hit his head on the ground with a loud noise. Cole was then taken to Morristown Memorial Hospital, where he was determined to have internal bleeding inside his skull. Although Cole was able to return home, Cole fainted in September and died on the way to the hospital.

In addition to Divito, LeVecchia is also suing her employer, Cosy Cupboard under a theory called respondeat superior. Simply put, respondeat superior (also referred to as vicarious liability) – which means “let the master answer” in Latin – allows an employer to be sued if its employee commits a negligent act while in the scope of his or her employment. In this case, LeVecchia sues Cosy Cupboard by claiming that Divito was at the supermarket to buy supplies for her job. If LeVecchia can prove that Divito was acting in the scope of her employment, Cosy Cupboard (and its insurance carrier) will then be responsible as well.

This case also highlights the difference between a wrongful death action and a survival action. A survival action looks at the period between the accident and death. In a survival action, the deceased’s estate can sue to recover for the pain and suffering, medical expenses and lost wages the deceased suffered before they died. In this case, LeVecchia can bring a survival action for the pain and suffering Cole went through after the supermarket accident, as well as the wages Cole lost from his inability to practice law before he died.

In contrast, a wrongful death action deals primarily with the consequences of the death itself. Wrongful death actions are brought directly by the deceased’s family, instead of through the deceased’s estate. Types of recovery permitted include: lost earnings of the deceased person, loss of guidance and advise, funeral expenses, lost value of household chores, lost companionship, etc…

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