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Unborn Son can Sue After Dad's Murder

By Jason Beahm on December 10, 2010 6:01 AM

How old do you have to be in order to pursue wrongful death action against the killer of your father? According to an appellate court in New York, negative 42 days old is sufficient. That's right, the court ruled that Colon's unborn son can sue. Confused? Here's how the story goes.

In 2002, Jose Colon learned that his off-and-on girlfriend Tina Feliciano was pregnant. Days later, Colon, 20, was exiting a house as police officers approached. The police were there as part of a drug raid. At some point, an officer tripped and accidently bumped into another police officer. Somehow the officer inadvertently fired three shots, one of which hit Colon in the head, killing him. Feliciano later gave birth to Colon's son, whom she named Jose A. Feliciano-Colon. DNA tests would later confirm that Jose Colon was the father.

Feliciano later filed a wrongful death suit on behalf of her son. She joined a lawsuit brought by Jose Colon's mother. The reason? Under New York law, a decedent's survivor, including an unborn son, may sue to recover both pecuniary damages and for a loss of parental guidance, The Wall Street Journal reports.

It's possible that the damages awarded to Jose could exceed those awarded to the estate of the family. For example, Jose, who is now eight, is the only one eligible to collect for Colon's lost wages, which are estimated at $1.35 million, Newsday reports. While the case might sound strange, it is not the first time that an in utero child was allowed to sue in New York.

"It was very important to the lawsuit ... The decision allows the child to continue his claim for loss of earnings," said Michael Buffa, who is representing both plaintiffs.

So this means that the lawsuit can now move forward. A trial date has yet to be scheduled, but it certainly sounds like it will be an interesting case to follow.

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