As per the National Highway Transportation Safety Administration, there were 35,092 traffic fatalities in the United States in 2015. Of those, 1,121 occurred in the State of New York.
When a family member dies as a result of the carelessness and negligence of another person or entity, there’s a profound impact on his or her survivors both emotionally and economically. Compensation for the loss of their family member can be sought by the decedent’s survivors through New York’s wrongful death law that is found in the Estates, Powers and Trusts Code. To establish a wrongful death, five elements must be proved. Those are that:
- There was a death
- The death was caused by the wrongful conduct of the defendant
- That gave rise to a cause of action which could have been maintained at the moment of death by the decedent if his or her death had not resulted
- That at there was at least one survivor who suffered monetary loss because of the death
- There has been appointment of a personal representative on behalf of the decedent
Common scenarios for wrongful death case
A wrongful death case can be brought as a result of a number of different types of accidents. They include:
- Auto, truck and motorcycle accidents
- Air, boat and bus crashes
- Bicycle and pedestrian accidents
- Workplace Injuries
- Premises liability
- Nursing home neglect or abuse
- Medical malpracticeTo prove a wrongful death by negligence, the personal representative of the decedent must prove the following:
- That a duty was owed to the decedent by the defendant
- The defendant breached that duty
- The breach of duty caused the accident
- The accident was the proximate cause of the decedent’s death
- The decedent’s estate and survivors suffered damages
If any single one of those elements isn’t proved, the wrongful death case completely fails. Sometimes wrongful death cases involve allegations of product liability or intentional acts. Those have other elements that must be shown.
Who can bring a wrongful death lawsuit?
Only the personal representative of the decedent’s estate can bring a wrongful death action in New York. Most states permit a family member to commence the action, but New York won’t allow a family member to do so unless he or she is the personal representative. The personal representative is allowed to seek damages incurred by the decedent’s heirs, beneficiaries or devisees along with any damages suffered by the estate. If damages are recovered, the personal representative then becomes the statutory trustee for purposes of distributing the proceeds to those who are entitled to share in them.
Damages that can be recovered
As every wrongful death case is different, damages that are recoverable in a New York wrongful death case vary widely. Some of the more common damages awarded include:
- Reasonable and necessary medical expenses in connection with the decedent’s final injury
- Funeral and burial costs
- The decedent’s lost earnings between the time of the decedent’s final injury and death
- The value of the support and services that the decedent provided to his or her family
- The value of the nurturing and guidance that the decedent provided to his or her surviving children
- Any lost inheritance that any surviving children might have been entitled to
- Any pain and suffering experienced by the decedent between the time of injury and time of death
- Interest of nine percent on the total award from the date of death
New York is one of a small minority of states that generally does not permit an award of damages for the emotional distress for the loss of a family member. The only exception to this rule is if a family member was actually present or witnessed the event that caused the death of the decedent.
The statute of limitations
Every state has a wrongful death statute, and every state has a statute of limitations in connection with their wrongful death statute. If an action is not filed within the time specified by a statute of limitations, it is likely that it will dismissed forever. In New York, a wrongful death lawsuit must be brought within two years of the decedent’s date of death.
Evidence can get lost, destroyed or tampered with, and witnesses can vanish into thin air and disappear forever. Couple those facts with the statute of limitations, and you’ll understand why it’s critical for the family of a wrongful death victim to seek the assistance of an experienced and respected wrongful death attorney as soon as possible. If you believe that your family member was the victim of a wrongful death anywhere in New York, contact our offices right away at 855-252-4788 for a free consultation and case evaluation. You can also use our online contact form, and somebody will be right back with you. You don’t need a penny in your pocket to retain us. We take these cases on a contingency fee basis which means that we don’t get paid unless we obtain a settlement or verdict on your behalf. There’s no reason not to contact us.