Rosenbaum & Rosenbaum, P.C. | May 17, 2022 | Wrongful Death
Losing a loved one is devastating. But the loss can be even more overwhelming when that death could have been prevented. Wrongful death lawyers help families like your family seek justice when another party causes the death of a family member because of negligence or other wrongdoing.
No amount of money can take away the pain of losing a loved one. However, financial judgment is the only means the civil courts have of giving a family justice and compensating them for their loss.
The steps involved in filing a wrongful death claim in New York include:
Seek Legal Advice From a New York Wrongful Death Lawyer
An experienced wrongful death lawyer assesses your case and helps you navigate the legal process of filing a wrongful death claim. The laws governing these cases can be complicated. Working with an attorney is the best way to pursue a wrongful death claim in New York.
Determine if You Have a Wrongful Death Claim
A wrongful death claim can result from many different accidents and situations. Common causes of wrongful deaths in New York include, but are not limited to:
- Automobile accidents
- Medical malpractice
- Defective products (product liability claims)
- Workplace accidents
- Nursing home abuse
- Violent acts and criminal conduct
- Slip and fall accidents and other premises liability claims
Provide your attorney with as much detail and evidence as possible regarding the death of your loved one. It can help to write a narrative to provide to your lawyer. Your attorney also works to gather copies of accident reports, medical records, police reports, and the coroner’s records.
A wrongful death lawyer reviews the facts of the case and the law to determine if the death of your loved one falls within the definition of a “wrongful death.” According to New York Estates, Powers, and Trusts Code §5-4-1, a wrongful death occurs when:
- A person dies;
- Because of the negligence or recklessness of another party;
- That would have created an action the deceased person could have pursued in court had they lived;
- And one or more people who survived the deceased have suffered economic losses because of the death; AND,
- Damages exist that the decedent’s estate can recover.
As the case progresses, your lawyer also works with you to document the financial losses caused by your family member’s death. Financial losses may include funeral expenses, medical bills, and lost wages. You must prove damages in addition to proving the person caused your loved one’s death to win a wrongful death case.
Determine Who Can File a Wrongful Death Claim
Many states give the right to file wrongful death claims to the surviving family members. As a result, the surviving spouse and children often file lawsuits seeking damages.
However, New York handles wrongful death lawsuits differently. The personal representative for the deceased’s estate has the right to file a wrongful death lawsuit in New York.
Generally, the personal representative is named in the deceased person’s Last Will and Testament. However, if the person does not have a Will, a family member may petition the court to be appointed to serve as the personal representative.
What Damages Are Available in Wrongful Death Cases?
Damages that can be recovered in a wrongful death lawsuit include:
- Medical bills incurred between the injury and death
- Loss of wages and future earnings
- Pain and suffering the deceased suffered from the injury date until death
- Loss of consortium
- Funeral and burial expenses
- Lost inheritance
- Loss of support, guidance, affection, and love
If the at-fault party acted with gross negligence or intentional wrongdoing, the jury could also award punitive damages to “punish” the defendant for their conduct.
Even though the estate files the lawsuit, the person’s heirs and beneficiaries receive the funds from a personal injury claim. The estate holds the funds in escrow to be disbursed when the estate is settled.
Can I File a Wrongful Death Claim if My Loved One Was Partially To Blame for the Accident?
New York’s contributory fault law does not bar loved ones from filing wrongful death claims when a family member was partially at fault for the cause of their death. Insurance companies and defense lawyers like to shift blame to the deceased because it decreases the compensation the at-fault party must pay.
If a jury finds your loved one contributed to the cause of their death, the financial award paid to the estate is reduced by your loved one’s percentage of fault. For example, if the jury finds your spouse was 20% at fault for the car accident that killed him, the compensation for damages would be reduced by 20%.
File Before the Deadline for Filing Wrongful Death Lawsuits in New York
The New York statute of limitations sets deadlines for filing various actions seeking damages in civil court. The deadline for filing a wrongful death lawsuit is two years from the person’s death. If you do not file your lawsuit before the deadline, you lose the right to pursue damages related to the wrongful death claim.