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Losing a loved one as a result of another's negligence is a devastating experience that no one should have to go through. Unfortunately, these kinds of tragedies do happen and can leave a family with tremendous emotional and financial burdens. In New York State, the representative of an accident victim's estate can bring an action against the party responsible for the fatality to recover for economic loss, as well as the conscious pain and suffering experienced by the accident victim prior to death.
Who Can Commence a Wrongful Death Action?
In New York State, a wrongful death action can be commenced by the personal representative of the decedent's estate. Often, the representative of the estate is the spouse, parent, or child of the deceased, although it does not necessarily have to be.
There are certain requirements under New York State law that must be met to bring a wrongful death claim. It must be shown that there was a death caused by the defendant's negligence or wrongful conduct which resulted in economic loss. Additionally, it must be demonstrated that the decedent would have been able to commence an action against the defendant if he or she were alive.
What Damages Can Be Recovered in a Wrongful Death Action?
Compensation in a wrongful death action is meant to allow the survivors to recover pecuniary loss including expenses for medical and healthcare treatment incurred by the decedent as a result of the fatal injury, funeral and burial costs, lost wages, and lost inheritance. Loss of the value of services provided to the distributees may also be recoverable in a wrongful death action.
When determining the value of compensation to each distributee, a jury in a wrongful death case may consider a number of criteria, including the following:
- The decedent's natural life expectancy
- The decedent's character, ability, and habits
- The portion of earnings the decedent would have provided to the distributees
- The guidance and training they would have given to their children
- The amount that the decedent's estate would have increased
If the conduct of the defendant was particularly egregious, punitive damages may also be awarded. Any award or settlement will typically go to the distributees who are entitled under New York State's intestate law.
Recovering Damages for Conscious Pain & Suffering
Under New York State law, the family members of the decedent are not entitled to recover for their sorrow, loss of companionship or emotional anguish experienced as a result of losing their loved one. However, if the victim did not die immediately as a result of the accident, the estate may be able to recover under a survivorship cause of action for the conscious pain and suffering the victim endured.
Survivorship causes of action are frequently raised in wrongful death cases. To prevail, the decedent must have been conscious while he or she experienced the pain and suffering. This can often be difficult to prove and may require medical evidence and expert testimony. A court may look at factors such as the cognitive awareness of the decedent prior to death as well as consider the severity of pain, the level of consciousness, and the apprehension of impending death.
Contact a New York Wrongful Death Attorney
If you lost a loved one due to the negligence or wrongful actions of another, you should contact a wrongful death attorney immediately who can advise you of your legal rights and remedies. It is important to consult a wrongful death attorney as soon as possible since there is generally a strict two-year statute of limitations to commence a wrongful death claim. There may also be other statutes of limitation that are applicable depending on the facts and circumstances of the case, and whether the case should be brought against a municipality.
The Popick Law Firm has thirty years of experience in successfully litigating wrongful death actions. Located in Fresh Meadows, NY, The Popick Law Firm handles wrongful death and personal injury cases in Queens, Brooklyn, Manhattan, the Bronx, as well as Nassau and Suffolk counties. Contact the Popick Law Firm today for a consultation.
