Wrongful Death Damages & New York Law’s Limitations

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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What types of damages are available in a wrongful death lawsuit and does New York place any limitations on those? To answer these questions, we spoke with Ira Slavit, a New York wrongful death lawyer. Here’s what he told us in a recent interview.

New York Wrongful Death Damages

To answer the question of what types of damages are available in New York wrongful death lawsuit, Slavit says that you have to split it up conceptually between a statutory cause of action for wrongful death and a common law cause of action for conscious pain and suffering. He explained the differences:

  • Conscious pain and suffering. For conscious pain and suffering, the measure of damages is generally the same for compensatory damages that anyone could recover from pain and suffering in any personal injury lawsuit, so it could be for past pain and suffering, future pain and suffering and loss of enjoyment of life – which is a part of that pain and suffering. That’s the same. There are no limitations or maximum amounts that can be recovered for that.
  • Wrongful death. In wrongful death actions, New York State is in the minority of states – meaning that more states are different than New York to the extent that most states will allow family members to recover for their emotional grief for the loss of their loved one. The pain and suffering which can be recovered in New York is only for the person who passed away, not for the pain and suffering of the decedent’s survivors.The New York State wrongful death statute (EPTL §5-4.3) allows for what are called pecuniary injuries, or the financial loss, so that could be loss of earnings, loss of pension, loss of social security benefits and funeral and medical expenses. Children cannot recover for their emotional grief from the loss, but they can recover for what’s called loss of parental guidance. This applies even to adult children. You have certain families that are very close-knit and even adult children can be very dependent on their parent for guidance or assistance. I don’t mean financial assistance; I mean advice and personal guidance.

Wrongful Death Limitations Hard for New Yorkers to Accept

Most people have a hard time getting over the fact that New York does not allow for the recovery of emotional grief of the survivors, according to Slavit, who told us, “When you have an elderly person who is no longer working or financially supporting someone, they’re treated much differently from a financial standpoint because they’re not a wage earner any longer. The same is true of a woman who’s a homemaker and provides a multitude of services to the family – all of which would cost money if someone else had to do them. The situation has been criticized as being discriminatory to non-wage earners.”

Chances of Changing the Law

We asked Slavit about whether there has ever been talk about changing the law in New York. He answered, “There’s always talk about it, but the insurance industry’s position is that if it became available as a recoverable item of damages, then they would have to increase insurance premiums. That’s their cry, but other states allow it and somehow the insurance companies seem to be getting by. I’m hopeful that maybe they will change the law in the future.”

Have Questions?

Filing a New York wrongful death lawsuit is never easy – especially under the trying circumstances for which the deceased family members are going through. If you have questions about the process, when the statute of limitations begins to toll or any others, contact an experienced wrongful death attorney to discuss your situation and evaluate your options.

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