Under New York law, in order to establish a wrongful death claim there must be a death caused by the wrongful act of those responsible that would have given rise to a personal injury claim if the victim would have survived. In addition, there must be at least one or more people who suffered a loss as a result of the wrongful death and those damages must be recoverable by the estate.
A wrongful death claim can arise from any accident or intentional act that results in a person’s death. This includes car or truck accidents, motorcycle accidents, bicycle or pedestrian accidents, slip and falls, trip and falls, construction site accidents, fatal criminal acts, and more. In addition, there does not need to be criminal charges in order to bring a wrongful death lawsuit.
Wrongful death is a civil claim, while criminal charges are handled in criminal court. A criminal conviction is strong evidence in a wrongful death lawsuit but not required to bring a claim. The standard of proof is also lower in civil court, so the grieving party must only prove by a preponderance of the evidence and not beyond a reasonable doubt that those responsible caused the wrongful death of the victim. However, it is important to note that in New York a wrongful death lawsuit cannot be brought for the loss of a fetus even if the loss is caused by the wrongful act of another party.
The personal representative of a wrongful death victim’s estate only has a small window of time in which to file a claim, known as the statute of limitations. Under New York law, the statute of limitations for a wrongful death case is two years from the date of death. It is important to note that the statute of limitations starts tolling at the date of death, not the date of the accident. If a victim survives the initial accident but dies from their injuries days or even weeks later, the statute of limitations begins on the day of their passing.
Because the personal representative of the estate is expected to file the lawsuit for damages, having an heir that is a minor or legally incapable of filing a claim is not a reason to stall the statute of limitations on a wrongful death case. The personal representative is expected to file the lawsuit within the two-year window on their behalf.
While money can never replace a lost loved one, wrongful death damages can help ease the financial burden that often comes after the unexpected passing of a loved one. Compensation for a wrongful death case includes damages on behalf of the victim’s estate as well as damages for any surviving heirs, beneficiaries, or designees. Compensation includes payment for funeral and burial expenses, all final medical bills associated with the accident, lost wages and benefits of the deceased, the loss of support and services, the loss of parental care, nurturing, and guidance, loss of inheritance, and any pain and suffering of the deceased that occurred before their death. The award is also entitled to 9% interest on the wrongful death award from the date of death in order to prevent purposeful delays in this type of case.
However, unlike other states’ wrongful death compensation, the surviving family members in New York are not allowed to collect damages for their own pain and suffering, emotional distress, or loss of companionship. The only additional compensation that may be awarded is to parents for the lost value of services that a child might perform until they reach legal adulthood. To learn more about the full and fair value of your wrongful death claim, talk to an experienced wrongful death attorney today.