David Gerken Jr. made plans to meet his brother and some friends after the Bills-Dolphins game last November.
Ejected by stadium security for being disruptive and possibly drunk, Gerken said he would catch up with them at the Tailgaters Bar and Grill at Southwestern Boulevard and Abbott Road.
Gerken never made it there and was later found dead, face down in a creek outside Ralph Wilson Stadium.
The family of the 26-year old Palmyra man has filed a notice of claim indicating they may sue Erie County over his death.
“Right now, the family is undecided over what to do," said Eric M. Dolan, a Rochester lawyer representing the Gerkens. ”This is really just administrative at this point." Dolan emphasized over and over again that Gerken’s family filed the notice of claim, the first step in a lawsuit, as a way of preserving their right to sue.
They now have two years to decide.
When asked what might convince the family to sue, or not sue, Dolan said that was a private family matter.
Dolan declined to comment on what the family’s lawsuit might allege, but the notice of claim outlines two potential allegations. One, that Gerken was forced to leave the stadium while intoxicated and during extremely cold weather. Temperatures that night - the game was on a Thursday – dipped below freezing.
The family also could allege that the fencing and lighting around the creek – Gerken’s body was found at the bottom of what police described as a “steep cliff" – were subpar and contributed to his death.
County officials declined to comment Friday, except to note that a notice of claim is not a lawsuit.
Gerken’s body was discovered at about 7 a.m. the following day, more than 9 hours after he was kicked out of the game for being disruptive.
When he didn’t show up at Tailgaters, his brother called Orchard Park police, who spent the next hour and a half looking for him. When he still wasn’t found by the next morning, the Erie County Sheriff’s Office was called in and asked to conduct an air search for Gerken. Police also used “pinging” technology in an effort to locate his cellphone.
After finding Gerken’s body, investigators said they believed the cause of death was an “accidental drowning.”