BUFFALO, NY - In November of last year, David Gerken, Jr., a Palmyra native, got drunk at a Buffalo Bills game and was kicked out of Ralph Wilson Stadium.
A few hours later, Gerken fell into a creek and downed near the Ralph.
Now, his family has filed their intention to sue local government agencies saying they're responsible.
The family of the 26-year-old says it intends to sue Erie County, the County Sheriff's Office and Orchard Park police in the death of their son, after the Bills-Dolphins game, which was on Nov. 15.
In a Notice of Claim that's been filed in State Supreme Court in Erie County, the family accuses the county of negligence by ejecting Gerken from the game drunk and letting him walk away.
Gerken was at the game with family and around halftime, he was ejected for disorderly conduct, then escorted out of Ralph Wilson Stadium. Gerken was supposed to meet his brother at a bar, but instead, went missing.
Rescue crews were looking for Gerken overnight and into the morning hours. Police say around 1 a.m., he accidentally fell from a slope at Smokes Creek, which is slightly east of the Bills Fieldhouse.
Police say Gerken drowned in a stream there and was also hypothermic.
The family claims the county is at fault because the area where Gerken died was "poorly lit" and "incompletely fenced" and that Erie County had "notice of the hazard and failed to correct it."
Since the county owns Ralph Wilson Stadium, the family says the county is "responsible for ensuring the safety of patrons."
2 On Your Side reached out to the Gerken family, but they did not return our call. Gerken's father, David Sr. spoke to 2 On Your Side in the days after his son's death.
"He was well-liked by many, always brought smiles to people's faces," he said.
The family has now hired Eric Dolan, a Rochester-based attorney. Dolan tells 2 On Your Side's Jeff Preval by phone that the family is prepared to go to trial for their son.
Peter Anderson, an Erie County government spokesperson says a hearing will be set so that both sides can discuss the family's claim.
Orchard Park police had no comment on the claim. The Bills are not named in the claim, but we reached out to them for comment. They did not get back to us.