- A property owner who failed to maintain a property, resulting in injuries that led to death.
- The owner of a dog that viciously attacked and killed someone.
- A third party responsible for causing a workplace accident. Employers generally cannot be sued for wrongful death because surviving family members are required to obtain death benefits through workers’ compensation.
A wrongful death claim could also be made against someone who intentionally caused a death. For example, a murderer could be sued by the family members of the victim.
Types Of Compensation Available
If a close relative has been killed as a result of another person’s wrongdoing, you could obtain monetary compensation through negotiating an out-of-court settlement or through a wrongful death case that goes to court and is decided by a judge or jury. A wrongful death lawyer can negotiate the settlement on your behalf or help you prove your case in court in order to maximize damages.
The compensation you receive could cover many different types of losses, such as:
- Medical costs incurred by the victim before he or she died.
- Funeral and burial expenses.
- Loss of the earnings that the deceased would have provided. The victim’s earning potential and remaining work years are factors in determining an appropriate amount of compensation for lost earnings.
- Loss of benefits that the deceased would have provided to the surviving family members, such as medical coverage or pension plans.
- Loss of inheritance that the deceased will no longer receive as a result of the untimely death.
- Loss of companionship, love and society.
Damages That Can be Recovered In A Claim
If you have recently lost a close family member, you are probably going through a period of extreme grief. If the death was the result of a sudden accident, the death may be even harder to accept.
Although we frequently refer to a cause of a death as “accidental,” the reality is that many “accidents” are actually the result of negligence on the part of an individual, company or government agency. If your family member’s death was caused by someone else’s negligence, carelessness or recklessness, you may be entitled to bring a lawsuit to recover compensation.
The attorneys at David Resnick & Associates, P.C., can help you determine if you qualify to file a New York wrongful death lawsuit.
Can I File A Wrongful Death Lawsuit?
Although a wrongful death claim is similar to a personal injury lawsuit, there is one significant difference – the victim is no longer alive to bring the case personally. The law, however, allows certain close family members to recover monetary compensation in a wrongful death lawsuit.
In the State of New York, a lawsuit must be brought by the personal representative of the decedent’s estate. The personal representative sues on behalf of the decedent’s estate and on behalf of the heirs of the estate. The surrogate court handling the case must appoint the personal representative. If the decedent executed a last will and testament prior to death, the person named as the executor of the will is usually appointed as the personal representative in a lawsuit. If the executor cannot serve, or if no will was left, then the court will appoint a personal representative.
The Estate Powers and Trust Law (EPTL), Article 5, Part 4, EPTL 213-217 is the governing law in New York State that determines who may file as a claimant in a wrongful death lawsuit, as well as determining how any award is distributed among claimants.
As a general rule, only a spouse, child or parent can file as a claimant in a lawsuit. However, if no spouse, child or parent survived the death of the decedent, then a brother, sister, niece or nephew may be entitled to file a wrongful death lawsuit in New York.
New York law also determines how an award will be split among claimants when more than one survivor qualifies for compensation. The law requires an award to be divided as follows:
- A spouse and no children — the whole to the spouse.
- A spouse and children — $50,000 and half of the balance of the estate to the spouse, with the remainder divided equally among the children as long as they are in the same generation.
- Children and no spouse — the whole to the children, divided equally as long as they are in the same generation.
- One or both parents and no spouse and no children — the whole to the surviving parent or parents.
- Parent’s children (brothers, sisters or their children) and no spouse, children or parent — the whole to the parent’s children, divided equally as long as they are in the same generation.
How Are Wrongful Death Settlements Paid Out
In proportion to their financial loss, damages are distributed to those eligible to recover under intestate law. In the state of New York, immediate family members are the first ones to receive compensation for damages caused by a wrongful death. Damages in these lawsuits are defined as pecuniary loss by New York’s Code. Pecuniary losses can be measured in money by producing a receipt to show that you have paid an expense or will incur an expense or financial loss in the future. Based on N.Y. Estate Powers & Trusts Law § 5-4.4, when there is a surviving spouse and parents, but no children or grandchildren, the parents will also recover in proportion to their pecuniary loss. The surviving spouse and children of the deceased person will get most of the compensation than adult children who were financially independent.
Damages In Wrongful Death Claims
If you have lost a close relative in an accident that was someone else’s fault, your initial reaction may be that no amount of money can bring back your loved one and, therefore, you do not want to discuss the possibility of compensation for your loved one’s death.
While this is an understandable reaction, it is critical to remember two things:
- If someone caused or contributed to your family member’s death, that party should be held accountable for the acts or omissions that led to your loved one’s death. Unless the party’s actions rise to the level of criminal culpability, the only way to hold them accountable is through a wrongful death lawsuit.
- If your family member provided support to you and your family while alive, chances are that he or she would want the ability to continue to provide support even after death. Compensating the survivors for the support they have lost is a goal of a lawsuit.
New York law allows the following types of compensation to be awarded in a successful wrongful death lawsuit:
- Medical and funeral expenses incurred by the decedent prior to death.
- Pain and suffering endured by the decedent prior to death.
- Pecuniary losses for heirs.
“Pecuniary losses” under New York law include loss of support, voluntary assistance and possible inheritance. What this typically means is that the claimant may be entitled to compensation that represents lost future earnings and benefits that the decedent could have provided if he or she had lived. If the claimant is a minor child, compensation may also include the value of parental support that the decedent would have provided but for his or her wrongful death.
Unlike some other states, New York law does not allow recovery for the emotional pain of the surviving family members or for other non-economic damages, such as loss of companionship or loss of consortium.
Some potential claimants have the mistaken belief that because the deceased did not work outside the home, compensation for the death is not available through a wrongful death lawsuit. This is usually not the case. A stay-at-home spouse or parent often provides valuable support and services to the family that are potentially compensable in a lawsuit.
We understand that nothing can bring back your loved one. However, if you are the surviving family member of someone who was killed as the result of a New York accident caused by someone else’s negligence, you could be entitled to compensation for your loss.
Let our wrongful death lawyers at David Resnick & Associates, P.C. help you by protecting your legal right to compensation. The time period for filing a claim is shorter than for most personal injury claims. Most New York wrongful death actions must be filed within two years of the death. Talk to a qualified New York lawyer as soon as possible to protect your legal rights and interests.
Types Of Claims
The following are some of the more common scenarios that give rise to a wrongful death lawsuit:
- Traffic accidents – Whether the accident is a truck accident, motorcycle accident or car accident, collisions in New York City all too often result in death. A distracted driver, a drunk driver or a drowsy driver, for example, could be at fault for causing a deadly crash. Sometimes, a government agency’s negligent road design or failure to properly maintain or repair a roadway is a factor in a fatal motor vehicle accident. Automotive defects also play a role in some fatal accidents.
- Pedestrian and bicycle accidents – The majority of pedestrian and bicyclist deaths could have been prevented. Frequently, the negligence of a motorist is to blame for these fatal crashes.
- Premises liability – Property owners and tenants have a legal duty to take reasonable steps to ensure the safety of their customers and guests. If they fail in that duty, they could be held responsible for any injuries that result – including death. Failing to properly secure the premises, failing to clean up or remove hazards and negligent maintenance are common scenarios that could form the basis of a wrongful death lawsuit.
- Public transportation accidents – Millions of people travel through New York City each day using public transportation. Whether it’s a subway, ferry, train or bus, the authorities responsible for public transportation systems owe a duty of care to every passenger. When a death occurs because that duty of care is breached, the authority could be held liable in a wrongful death lawsuit.
- Construction accidents – Construction sites are particularly dangerous for both the workers and the public. New York City has a particularly high rate of construction accident deaths as a result of construction work that takes place within the city. Although family members could be entitled to death benefits through the workers’ compensation system for the death of a worker, they may also be entitled to file a wrongful death lawsuit in certain circumstances.