Recovery in Wrongful Death Cases

The Scales of Justice


1. RECOVERY IN WRONGFUL DEATH CASES

When someone dies due to the negligence of another person, relief can be sought for the damages suffered. There are several categories of compensation that may be available in New York. Some categories of compensation are for losses suffered by the decedent. Other categories are for the losses suffered by the survivors (the distributees) due to the loss of decedent.

Compensation For The Decedent’s Suffering

Compensation is awarded for the decedent’s suffering from the moment of injury to the moment of death. Any award for suffering belongs to the Estate of the decedent and is distributed pursuant to the decedent’s will, or in the absence of a will according to the Estates Powers and Trust Law.

Conscious Pain and Suffering: Compensation can be awarded for the pain and suffering of the decedent from the time of the incident up until the time of death. As the name implies, there must be proof that the decedent was conscious of the pain and suffering. For example, a person in a coma may or may not be experiencing pain or suffering. Evidence of consciousness of pain or suffering by someone in a coma may be shown by reactions to stimuli.

Pre-Impact Fear and Fear of Dying: Recovery can be made for a decedent who experienced pre-impact fear. For example, a pedestrian who sees an oncoming car bearing down, before being struck and killed, will likely experience pre-impact fear and/or a fear of dying.

Compensation for the Distributees

The distributees are the closest family members of the decedent, such as a spouse, parent, child, and sibling. Distributees who suffer monetary (pecuniary/economic) losses as a result of the decedent’s death may recover. Who is a distributee that may recover, is defined by the Estates Powers and Trust Laws, and depends on the structure of the decedent’s family. For example, assume a 50-year-old woman died. If she was married with children, her spouse and children would be the distributees. If she was not married and had no children, her parents would be the distributes. If her parents were deceased, her siblings would be the distributees. In order for a distributee to recover, a pecuniary loss must have been incurred.

In deciding the amount of monetary losses, one must consider: (1) the character, habits and ability of the decedent; (2) the circumstances and conditions of the distributee(s); (3) the services that the decedent had performed for the distributee(s); (4) the portion of the decedent’s earnings that the decedent would have spent in the future for the care and support of the distributee(s); (5) the age and life expectancy of the decedent; and (6) the value of the intellectual, moral and physical training, guidance and assistance that the decedent would have provided had she lived.

2. THE UNFAIRNESS OF NEW YORK’S WRONGFUL DEATH LAWS

New York does not allow recovery for grief, sorrow, mental anguish, injury to feelings, or loss of companionship of a loved one.

As a result of the above, New York places a much greater value on the loss of certain classes of people. Consider two people who are killed instantaneously when a piece of debris falls off a building. If there was no pain and suffering or pre-impact fear, the only award for their wrongful death is as a result of the monetary loss suffered by their distributees, due to the decedents’ deaths.Decedent #1 is a 25-year-old married man with a 1-year-old child earning $100,000 per year. His distributes are his wife who can claim for the loss of 50+ years of support, and the child who can claim the loss of 20 years of support. That support would include millions of dollars of lifetime earnings. Decedent #2 is a 25-year-old unmarried woman, earning $25,000 per year, and survived by her parents. She and her only sister are roommates. In this case the law only recognizes her parents as distributees. Since Decedent #2 is not supporting anyone, and her economic contributions to her parents (her distributes) are nominal, the law puts little to no value on her life.

The law, in essence, says that the attributes of our family members that we most value—emotional support, love, companionship, advice and guidance—count for nothing.

New York’s Wrongful Death’s Law dates to over 170 years ago. At the time, the law was thought progressive by placing some value on the loss of life. 170 years ago, a child who worked on a farm or a factory had an economic value to the family. Soon, the law will hopefully evaluate the loss of a child in more ways than just economic loss to the family.

3. WHAT CAN BE DONE TO MAKE THE WRONGFUL DEATH LAW FAIRER?

At least 41 other states compensate family members for emotional loss.

New York State Senate Bill number S74A, and Assembly Version A6770, seek to modernize New York law by permitting recovery of damages for emotional loss by close family members, when a tortfeasor is found liable for causing a death.

The official justification, in the write up of the bills, state in part that: “The current law, which awards compensation for pecuniary loss only, impacts most harshly on children, seniors, women and people of color, who often have no income or significantly less income, and are traditionally undervalued in our society. For many years, the courts have struggled to overcome the current law's narrow and inhumane language, which measures the worth of loved family members solely by their value as wage earners.”

These bills have widespread bipartisan support (the senate bill is co-sponsored by 49 of the 63 State Senators!), and a version of the bill has been introduced every year since at least 2009. Unfortunately, the bill has never reached the Governor’s desk. If these politicians truly support these bills, they must do more to enact them into law.

Please contact your State Senator and ask them to support Bill number S74A!

Please contact your State Assembly Person and ask them to support Bill number A6770!


The law firm of Zalman, Schnurman, & Miner is experienced in handling all kinds of personal injury cases. All consultations are free and each case is handled on a contingency fee basis. For a free consultation call 1-800-LAWLINE (1-800-529-5463) or email info@1800lawline.com.

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