Wrongful Death Law In New York
New York has a very backward wrongful death law that favors the rich. It is an embarrassment and needs to be changed. Injury lawyers have been working to change the law for more than 50 years. With a Democratic supermajority and a new governor, we are closer than ever to getting rid of this dreadful law.
No amount of money can ever compensate a family for the loss of a loved one. Anyone who has experienced loss understands this. Wrongful death laws exist as society's way of doing the best we can to compensate a family for a death. While nothing can bring the decedent back, money is all we have to attempt to remedy what has been taken.
Wrongful death laws, and personal injury laws in general, also serve as a deterrent to negligent and reckless conduct. People know that causing a death can lead to a wrongful death lawsuit so are, in theory, more likely to be careful.
The next of kin of a loved one can recover money in a wrongful death case in the following categories:
- Economic damages such as lost wages.
- Loss of parental guidance.
- The conscious pain and suffering of the decedent.
Under New York law, surviving family members are not allowed to be compensated for their grief, mental anguish, or emotional pain.
What Are The Economic Damages To A Family After A Wrongful Death?
The surviving family of someone killed in an accident can recover economic damages in a wrongful death case. In theory, the defendant responsible for the death is obligated to make the family whole by providing the wages that would have been earned if the death had not happened.
Loss Of Parental Guidance After A Wrongful Death Accident
If a parent is killed, the children can be compensated for their loss of parental guidance. This is true even if the children are adults at the time the parent is killed. Many attorneys in New York mistakenly believe that adult children are not able to be compensated for the loss of a parent.
The defense lawyers on the case, as well as other plaintiff lawyers we consulted, all assured me that there was no claim for loss of parental guidance for an adult child who loses a parent. This is simply not true. The confusion stems from the fact that juries and appellate courts tend to give less money to adult children of decedents rather than minor children who are still in need of more intense guidance.
Pain And Suffering While Dying
This ghoulish part of wrongful death cases is where the largest part of awards generally come from. It is broken down into 2 categories:
- Pre-impact terror.
- Post impact, suffering of the decedent until either death or loss of consciousness/brain death.
Pre-impact terror involves cases where death is caused by an impact; a car accident, a fall at a construction site, a plane crash, or an object falling on someone who realizes the impending doom.(When someone is killed by a falling object, pre-impact terror can be proven by defensive wounds such as injuries to the hands and arms.)
This item of damages is calculated based on when the now deceased person became aware of an impending impact, until the moment the impact occurred. Even a matter of seconds can lead to a multimillion-dollar award.
For example, In the 91st Street Crain Collapse case from 2008, a jury awarded one $7.5 Million for pre-impact terror for a man who was in a crain's cab and fell 14 stories. Evidence showed that the cab did not fall in a straight path, and in fact made contact with other objects, bouncing on several terraces before falling to the ground. The appellate court cut the award to $2.5 Million.
The main element of a conscious pain and suffering claim is the time from impact, until the time where the decedent loses consciousness. The longer and more agonizing the death, the more money the case is worth. Being burned alive could be worth millions, but instead death from a head wound is worthless.
Proving both of the parts of conscious pain and suffering force a surviving family to relive the horrifying last moments of their loved one's time on earth. Much of the evidence of these damages are obtained through witness statements, and medical reports. As an injury lawyer, I have been forced to give clients the "good news", i.e., that their loved one suffered immensely, thus qualifying them for more money. I have conversely had to give clients the "bad news," i.e., that their loved one died quickly, thus leaving the survivors with a smaller monetary claim.
The law is absurd and must be changed. New York is one of only 9 States that adhere to this antiquated policy that prioritizes the rights of high wage earners over the working class.