In New York, when a person dies from other than natural causes, the personal representative of the estate of that deceased person can file a wrongful death suit on behalf of that person’s survivors. The personal representative of the decedent’s estate files the wrongful death claim against the party responsible for the death. The suit can seek damages for immediate family members who are defined as surviving spouses, children, or the decedent’s parents if there are no children, grandchildren, or spouses. Learn more about filing a claim from our experienced wrongful death lawyers at Ivan Diamond Bronx Personal Injury Attorney.
Wrongful Death in New York
New York law defines wrongful death as a death caused by the wrongful act, neglect, or default of a person who would have been liable to the decedent for damages by reason of the act, neglect, or default if the death had not occurred. The cause of action is available only to the specified survivors, and only the personal representative of the decedent’s estate can file it on behalf of the qualified family members. Learn more about who can file a wrongful death claim by speaking with an experienced legal professional and explaining your case.
How Long Do I Have to Sue?
When should you file a wrongful death claim? The personal representative must file the New York wrongful death claim within two years of the decedent’s death. If those who would take under a will cannot persuade the personal representative to file a suit, they may seek the appointment of an administrator appointed who will pursue the action on their behalf. If a criminal action commenced against the same defendant for the same conduct, the personal representative has at least one year from the termination of the criminal action to file suit, even if the two-year deadline has passed.
What Are the Grounds for Suing?
The grounds for suing in a wrongful death cause of action are generally much the same as would be needed for the underlying personal injury case. In other words, if the decedent could have sued, the personal representative can also sue.
To do so, generally, the personal representative must allege and prove that:
- The defendant owed the decedent a duty of care
- The defendant breached that duty of care
- The breach caused the decedent’s injuries and death
In other words, the personal representative must, in effect, plead and prove negligence or another intentional tort.
Then the personal representative must also allege and prove the following elements:
- That the decedent left surviving relatives such as a spouse or children
- That these survivors have suffered financial damage as a result of the decedent’s death.
What Are the Most Common Causes of Wrongful Death in New York?
A wrongful death claim is generally available if the individual who died would have been able to bring a personal injury lawsuit against the party facing the lawsuit for wrongful death.
The most common causes of death leading to wrongful death claims in New York include:
- Car and truck accidents - Generally, if a car or truck accident results in a death, there has been some sort of negligence or human error that caused the accident. Reckless or distracted driving or driving under the influence is among the most common causes of fatal car accidents. Sometimes, road conditions or construction sites without proper warnings and protective equipment can cause death. Where this happens, a skilled wrongful death attorney might recover from the responsible governmental or private agency.
- Motorcycle and bicycle accidents - Motorcycle and bicycle accidents have a very high rate of fatalities because of the relative size and weight of the vehicles and the essentially unprotected situation of the motorcycle or bicycle rider. Since many car and truck drivers either do not see these riders or do not grant them appropriate rights of way, they often cause the rider’s death.
- Pedestrian accidents - Pedestrians have even less protection and are harder to see than those on motorcycles or bikes. Deaths in these kinds of accidents account for nearly one in five crash fatalities and have increased by more than half in the last decade.
- Defective product accidents - Any number of defective products can result in wrongful death. Victims can often file product liability cases on a strict liability basis (that is, they do not need to prove specific negligence to recover). Among the cases in which product liability may arise are:
- Dangerous drugs and pharmaceutical products
- Toxic food products
- Malfunctioning household appliances, equipment, or tools
- Dangerous toys and childcare products
- Malfunctioning seatbelts and airbags in cars
- Defective car seats
- Faulty construction equipment
- Slip and fall accidents - where a defective product was involved in causing the slip and fall
- Medical malpractice cases - where the basis of the malpractice is the use of a defective product
- Construction site accidents - which Workers Compensation regulations under some circumstance can complicate
- Medical malpractice - There are many ways that medical malpractice can result in wrongful death. If the decedent had been able to sustain a medical malpractice claim against the defendant if they lived, surviving family members can file a wrongful death suit. Among the more common kinds of medical malpractice leading to wrongful death are:
- Errors in diagnosing or treating a medical condition
- Delay in diagnosing or treating a medical condition
- Prescribing the wrong medication
- Surgical errors
- Anesthesia problems
- Hospital negligence
- Birth injuries resulting in the death of the infant or the mother
- Use of a defective medical device
- Construction site accidents - Nearly 1,000 persons die in construction site accidents each year. Accidents involving construction equipment, falls, electrocution, and being struck by falling objects are all common causes of wrongful death on construction sites.
What Damages Can Families Receive?
Damages for wrongful death are similar to those the decedent could have recovered in a personal injury case. They are, however, only damages arising directly from the decedent’s death. Damages suffered by the survivors are not covered in a wrongful death suit. Thus, families might recover damages for the decedent’s pain and suffering, but not damages for that of the survivors. Damages, including punitive damages, are not capped in New York. These damages include:
Damages on Behalf of the Decedent
As noted above, the damages available in a wrongful death case arise only from the decedent’s injuries. In other words, damages such as pain and suffering on behalf of the survivors may not be recovered in a wrongful death lawsuit.
The typical damages family members might recover include:
- Medical expenses for treatment and care of the decedent during the period between the accident and the death
- Funeral expenses for the decedent
- Costs of the decedent’s burial or cremation
- Loss of income that would have come from the deceased
- Loss of consortium
- Loss of potential inheritance that the survivors might reasonably have expected to receive from the deceased had the deceased not been killed, based on the facts and circumstances at the time of the decedent’s death. It is calculated as the present value that the decedent would have added to the state and left at his or her natural death.
- Pain and suffering in the decedent for the period between the injury and the death
- Fear of impending death suffered by the decedent.
Damages on Behalf of the Survivors
In general, the pain and suffering of the survivors and their direct injuries are not compensable in a wrongful death case. It is, however, possible that the survivors may have a separate claim against the liable party. Consult with a skilled personal injury lawyer regarding this issue.
Punitive Damages
Punitive damages may be available in some rare wrongful death cases but only where the conduct causing the death or afterward has been egregious and shocks the conscience of the court. No particular fact pattern will consistently result in an award of punitive damages in a New York wrongful death case. A skilled and knowledgeable New York wrongful death attorney can help to determine if you have a viable claim for punitive damages.
What Is a Typical Damages Award in a New York Wrongful Death Case?
As with all personal injury type claims, the amount of damages awarded depends on the losses that your wrongful death lawyer can prove.
How Do Families Receive Payment?
Who Receives the Money?
When a wrongful death claim ends in a settlement or award, it is payable to the designated survivors of the decedent.
The structure of the statutory distribution of the award might look like:
- If there are no children, the spouse receives the settlement.
- If there are children and a spouse, the spouse receives $50,000 and half of the settlement, and the balance is divided equally among the children.
- If there are children but no spouse, the settlement is divided equally among the children.
- If there are no children and no spouse, the settlement goes to the decedent’s parents.
How Does the Payment Happen?
Once the plaintiff signs a settlement agreement or receives an award from a lawsuit, the liable parties must arrange to make payment to the survivors in the designated amount. The payment usually happens in one of two standard methods.
As seen in the previous section, payments may go to more than one party. Trusts must be necessary to hold any assets awarded to minor children until they reach the age of 18. If there is an incapacitated adult among the survivors, a trust may be necessary for that individual as well. Often the paying party will deduct debts to hospitals, doctors, and lawyers from the settlement before the remainder goes to the survivors.
Lump-Sum Payment
With a lump-sum payment, the survivors receive all of the damages due to them at one time. This sum will include all of the economic and non-economic damages that the settlement or the award covered. If the award included punitive damages, they would also be part of this sum. The advantage of a lump-sum payment is that the survivors can catch up with large outstanding medical and funeral bills and legal fees without accruing interest on the outstanding debt. It also, obviously, shortens the payment process.
Structured Settlement
A structured settlement payout, often funded by the purchase of an annuity, calls for regular, ongoing payments on a designated schedule for the time period specified in the settlement agreement. A structured settlement takes longer for the survivors to be paid their full damages and can delay the payment of the survivors’ outstanding expenses.
Generally, a large insurance company will be able and eager to pay out a lump-sum settlement, while an individual paying from his or her own assets will likely prefer periodic payments under a structured settlement. Your experienced New York wrongful death attorney can help you determine which might be best in your case.
Taxation of Wrong Death Proceeds
In a wrongful death settlement or award, the damages awarded for economic and non-economic damages represent compensation for a loss. They are therefore not generally subject to federal income tax. They may, however, be taxed as part of the estate tax if the decedent’s estate is large enough to be subject to state or federal estate taxes. On the other hand, punitive damages are “other income” under the Internal Revenue Code, and the survivors will pay federal and likely state income taxes on them.
Can a New York Wrongful Death Attorney Help?
As you have seen, the law relating to wrongful death claims in New York is complex and does not allow much time to make and correct mistakes. Bereaved survivors are not in the best emotional shape to negotiate with insurance companies and should consider working with experienced and knowledgeable wrongful death counsel to assist them in obtaining the best settlement or award for them.
We can determine if you have a viable wrongful death claim and help you to recover compensation during your time of sorrow. While a monetary award will never reunite you with your family member, it can help you move forward in a stronger position.
