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Wrongful Death Statute: A Time For Change

Wrongful Death StatuteIn New York, individuals can bring a claim for the wrongful death of a family member as a result of the wrongful conduct of another party. Originally, at common law, this cause of action did not exist and individuals were routinely denied the opportunity to seek such redress in the courts. However, in 1847, New York became the first state in the country to enact a wrongful death statute. New York’s wrongful death law was modeled on a 19th century English statute introduced by Lord Campbell, called the Fatal Accidents Act. This law, commonly known as Lord Campbell’s Act, recognized for the first time, the right to recover for the wrongful death of a loved one. Other states have since passed their own wrongful death laws following the enactment of New York’s statute over 160 years ago.

Damages: Who May Recover and When

In New York, the individuals who may recover damages in a wrongful death claim are set forth in the New York Estates, Powers & Trusts Law 5-4.1 et seq. In order to successfully prosecute a claim for wrongful death a party must comply with the requirements set forth in the statute. An appointed representative may bring the wrongful death claim on behalf of the decedent’s distributees for the wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. E.P.T.L 5-4.1.

The parties entitled to recover damages in a wrongful death action are limited to a decedent’s intestacy distributees with one important exception; if a decedent dies survived by a spouse but no children, a decedent’s parents may also recover damages for pecuniary (financial) losses suffered as a result of their loved one’s death. Abandonment of the decedent by a spouse or parent is grounds for disqualification from recovery.

The damages recoverable in a wrongful death action are set forth in New York Estates, Powers & Trusts Law 5-4.3 and are limited to fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought. Pecuniary damages include future financial assistance and support the decedent would have provided, loss of services and loss of a parent’s guidance. Additionally, damages may include funeral and medical expenses the distributee incurred related to the decedent’s death as well as potential future inheritance they may have received. It is important to remember that a wrongful death claim is not brought on behalf of the decedent’s estate and does not include damages the decedent would have recovered in his or her own personal injury action had they lived. Instead, damages in a wrongful death action are divided in proportion to the pecuniary injury suffered by each of the decedent’s statutory distibutees.

A wrongful death claim is meant to compensate a family member for the future support and assistance they would have received from their lost loved one had he or she not died. In calculating this, the court looks to factors such as the decedent’s income and future earning potential as well as the likelihood of future support and guidance to the family member in question. In assessing damages, the court will also take into account the decedent’s age and health as well as the nature of the relationship between the parties.

A Time For Change

While Wrongful death statute is meant to address the pecuniary effect a family member’s death has on those they support, the statute itself poses many problems. Most notably, New York’s wrongful death law does not compensate individuals for the pain and suffering or grief associated with losing a loved one.

Wrongful death law and its focus on pecuniary loss is particularly problematic in cases where the decedent did not work outside of the home or was a low-wage earner. This includes instances where the lost loved one was a stay at home mom, a minor child, an elderly person, or a disabled individual. Since recovery in a wrongful death lawsuit is premised on an individual’s expected economic contribution and support, damages in wrongful death cases are unfairly limited when the decedent is not of working age, did not work outside of the home or was of limited financial means.

In the case of a non-wage earner such as a stay at home parent, damages may include the replacement cost of the individual’s services within the home. However, quantifying the value of these services is often problematic. Similarly, in the case of a minor child, damages are limited to the pecuniary loss the parent suffers as a result of the child’s death. While the court may look to future support the child could potentially provide to a parent, assessing these damages is difficult since at the time of a child’s death pecuniary support is often nominal. Likewise, the courts have routinely cut-down awards to the distributees of a single parent of adult children, or a single adult without children.

Furthermore, the focus on pecuniary damages in New York’s wrongful death law is troubling because there is reduced accountability for the wrongdoer in cases which involve children, the elderly and other low or non-wage earners. Facilities that cater to children and the elderly like hospitals, nursing homes, day-care centers and corporations have less of an incentive to guarantee the safety of their customers and patrons if they face reduced damage awards in court. In order to ensure the safety of societies most vulnerable citizens, all individuals must be treated equally in the eyes of the law.

New York wrongful death attorneys and lawyers believe one person’s life should not be worth more than another’s. As it now stands, wrongful death statute does not take into account the personal and emotional loss associated with losing a loved one. Despite the fact that much has changed since 1847, wrongful death statute has not been modified to reflect societal changes.

We need to pass a law that will permit grieving families to recover just compensation for their horrific loss. We need to obtain justice for grief-stricken parents who have lost a child. We need to restore value to the life of an elderly grandparent. We need to recognize that a woman who gives up a promising career to be a full time mother is not worth less in New York State courts than a woman who works in an office.

After 163 years, New York’s archaic wrongful death statute still lives on in this state. Grieving families in our state continue to suffer the unconscionable injury of an antiquated law. We cannot, and we will not, let it stand.

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Jeff Korek

Jeff S. Korek

Senior Trial Partner​

Jeff S. Korek joined Gersowitz Libo & Korek, P.C. in 1992 as the Senior Trial partner. Known for his meticulous preparation and dedication to his clients, Jeff has obtained some of the state’s highest verdicts and settlements.