What is Wrongful Death?
Wrongful death involves legal actions brought by surviving family members and/or dependents for damages when a person’s death is caused by the wrongful conduct of another individual. These cases may arise from construction accidents; death during a supervised activity; medical malpractice; police misconduct; product liability cases involving defective, dangerous products, including occupational exposure to hazardous substances or conditions; and vehicular—automobile, train, truck, or airplane—accidents.
These deaths may also include murder and other criminal behavior. Many wrongful death trials follow criminal trials in which similar evidence is used but with a lower standard of proof. An individual who is found liable for a wrongful death may or may not be convicted of a crime tied to that death. One example of this are the cases an alleged murder in which the defendant was not found not guilty of murder when the prosecution was not able to establish the defendant’s guilt beyond a reasonable doubt. That same defendant may be found liable for the alleged wrongful death during the civil trial if plaintiffs are able to prove he was responsible by a multitude of evidence.
Only the personal representative of the deceased, as appointed by Surrogate’s Court, is able to bring a wrongful death action in the state of New York. The representative must prove that the defendant acted negligently and that negligence caused the deceased person’s death. The representative must show that there is a surviving spouse, child/children, or other beneficiaries or dependents and that the survivor(s) suffered financial damage as a result of the wrongful death.
Two elements of damage that may be recovered in a wrongful death action are economic loss and the deceased’s conscious pain and suffering The survivors are unable to recover for their pain and suffering, including, for instance, grief.
The estate’s economic recovery includes the reasonable value of earnings lost between the initial time of the injury to death, the cost of medical and/or nursing care before the death, funeral expenses, the value of support and services. Should the surviving spouse remarry, this will not reduce any potential award. Also, children of the deceased individual may also recover for loss of parental nurturing, guidance, and education.
National law firm Parker Waichman LLP has extensive experience and success in representing clients in wrongful death cases. The firm continues to offer free legal consultations to individuals with questions about filing a wrongful death lawsuit.
When a Wrongful Death Allegedly Occurs
Each state has its own civil “wrongful death statute,” which is a set of statutes that establish the procedures for bringing wrongful death actions. Damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent’s will.
Pecuniary—financial—injury is the key measure of damages in a wrongful death action. Courts interpret pecuniary injuries to include loss of support and services, lost prospect of inheritance, medical expenses, and funeral expenses. Typically, laws provide that the damages awarded for a wrongful death will be fair and just compensation for the pecuniary injuries resulting from the decedent’s death. Should distributees be paid and were responsible for the decedent’s funeral or medical care, they may also recover those expenses. A damage award will also include interest from the date of the decedent’s death.
Because the measure of damages is actual pecuniary loss, the decedent’s age, character, condition, earning capacity, life expectancy, health, and intelligence are considered; the distributees’ circumstances are reviewed, as well. Typically, the key consideration involves the decedent’s circumstances at the time of his or her death. For example, in situations in which the deceased was an adult wage earner with dependents, the major parts of the recovery involves loss of income and loss of parental guidance. The jury may consider the deceased’s earnings at the time of death, last known earnings, if the decedent was unemployed, and potential future earnings.
The jury determines the size of the damage award after hearing the evidence; however, the jury’s determination is not always the final decision. The award size may be adjusted up or down by the court. Should the decedent have routinely squandered his income, this might reduce the family’s recovery. Another example is if the decedent was a poor earner, but was young, had potential, and supported a number of children. A jury may award lost earnings even if the decedent was unemployed if he or she had worked in the past and evidence was presented of average earnings while employed. If the plaintiff does not present evidence of the decedent’s average earnings, the court may set aside the jury’s damage award and order a new trial.
Plaintiffs are able to present expert testimony establishing the value of the decedent to his family. This testimony had not previously been admissible when a housewife died; however, that rule has changed. Today, if the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve income loss but, rather, increased expenditures to continue the services she or he provided, or would have provided, had he or she lived. Jurors may not understand the monetary value of a housewife’s services; therefore, experts may be brought in to assist the jury in this evaluation.
Punitive damages are sometimes awarded in lawsuits involving serious or malicious wrongdoing to punish the wrongdoer and deter others from behaving in the same manner. Typically, a plaintiff may not recover punitive damages in a wrongful death action; however, statues in some states permit for this. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages allowable, including in New York.
Distributees may also be able to recover damages for personal injury to the decedent, which are known as “survival actions.” The personal injury action survives the person who suffered the injury and the decedent’s personal representative may bring such an action along with the wrongful death action to benefit the decedent’s estate. In a survival action for a decedent’s conscious pain and suffering, the jury may ask questions to determine the damage amount of damages, including the degree of consciousness; severity of pain; and, apprehension of impending death, as well a the duration of such suffering.
Filing a Wrongful Death Lawsuit
Parker Waichman has years of experience representing clients in wrongful death lawsuits. If you or someone you know is interested in filing a wrongful death lawsuit, please contact one of our experienced wrongful death lawyers today. Our firm offers free, no-obligation case evaluations. For more information, call 1-800-YOURLAWYER (1-800-968-7529).