Wrongful Death Lawsuits: A Guide For Survivors

When a loved one dies, some of their legal rights endure. In New York, the right to file a personal injury lawsuit is transferred to a person’s estate after they have passed away. Thus, if negligence or wrongdoing leads to someone’s death, their estate may be able to file a claim for financial compensation against the responsible party.

Cemetery In New York

Wrongful Death Laws In New York

Wrongful death lawsuits are governed by a distinct set of laws, established in New York’s Estates, Powers and Trusts Law. Estate laws are designed to handle the legal ramifications, especially the financial concerns, that arise after someone’s death. Along with outlining the rules around writing and executing wills, New York’s own collection of estate laws creates a powerful “cause of action” (or legitimate reason to sue) when a loved one’s death is the result of negligence or wrongdoing.

As set forth in Article 5, Part 4 of New York’s Estates, Powers and Trusts Law:

“the personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a 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.”

In a single paragraph, New York’s estate law outlines who can file a wrongful death lawsuit, who can benefit from a successful lawsuit and under what circumstances the lawsuit can be filed. We’ll cover these points in detail below.

Personal Representatives: Who Can File Suit?

As the law makes clear, only an estate’s personal representative has the right to file a wrongful death lawsuit. Most people identify a “personal representative” (or “executor”) for their estate in a Last Will and Testament. Often a surviving spouse or adult child will be selected to deal with the remaining financial concerns. Where the decedent leaves no Will, or leaves an improperly-written Will, one of New York’s Surrogate’s Court will appoint a personal representative.

No matter who is selected as the estate’s personal representative, this person holds the exclusive right to file a wrongful death lawsuit. The lawsuit itself, however, can make claims on behalf of the decedent’s distributees, in addition to claims made on behalf of the decedent’s estate. In other words, most wrongful death lawsuits actually make two separate claims for compensation: one on behalf of the estate and another on behalf of surviving loved ones and financial dependents.

Conscious Pain & Suffering vs. Wrongful Death

You can think of a wrongful death lawsuit as two separate lawsuits that are joined together, or at least as two separate claims for compensation included in the same lawsuit.

In legal circles, the first claim is known as a “conscious pain and suffering” claim. In filing a claim for “conscious pain and suffering,” the estate demands compensation for the physical pain and emotional trauma suffered by the decedent prior to death. This claim is normally joined by a second, “wrongful death,” claim, in which the estate demands compensation to cover the financial losses incurred by distributees, usually family members, as a result of their loved one’s death.

Distributees are defined by law according to an order of priority. In a successful case, a surviving spouse and children will usually be considered the decedent’s primary distributees, and thus be able to recover damages in the lawsuit. When no spouse or child survives the decedent, parents or grandparents can also be considered distributees.

Wrongful Acts, Neglect Or Default

New York State law allows personal representatives to file wrongful death lawsuits only when a loved one’s death was caused by a “wrongful act, neglect or default.” As in personal injury lawsuits, negligence is likely the key concept in most wrongful death lawsuits, especially ones involving medical malpractice, nursing home neglect or abuse and car accidents. Thankfully, negligence is a fairly simple legal concept to understand.

In brief, the theory of negligence recognizes that certain people owe others a duty of care, a legal obligation to avoid causing harm whenever reasonably possible. Doctors, for example, owe their patients a duty to follow accepted standards of medical care, following up on troubling symptoms, ordering necessary diagnostic tests and carefully considering alternative diagnoses and treatment options. Likewise, drivers and bicyclists owe other drivers, as well as pedestrians, a duty to follow the rules of the road, avoid distractions in the vehicle and refrain from dangerous behaviors like drinking.

What Wrongful Death Lawsuits Have To Prove

Negligence is the flip-side of these obligations; it’s what happens when a person or corporation violates their duty of care and someone is injured or dies. Proving that someone’s negligence led to a death, on the other hand, can be complicated, but the fact remains that most wrongful death lawsuits will found their claims in a theory of negligence.

That isn’t always the case, though. Wrongful death lawsuits often follow on the heels of criminal murder cases, too. Further on, we’ll see how this fact adds nuance to New York’s statute of limitations, the legal time limit for filing wrongful death lawsuits. For now, we’ll outline five essential elements that must be proven to secure damages in the case:

  1. a death occurred
  2. the death was caused by the negligence or wrongful conduct of the defendant
  3. the person who died could have filed their own personal injury lawsuit over the same negligence or wrongful conduct if they had not passed away
  4. the decedent is survived by at least one individual who sustained financial losses due to their death
  5. the death resulted in specific monetary damages

To secure compensation, the estate will need to outline quantifiable financial losses that were caused by the death.

Damages In A Wrongful Death Lawsuit

We’ve already explained that wrongful death lawsuits usually include two separate damage claims. One claim is intended to compensate the estate for the conscious pain and suffering experienced by the decedent prior to their death. In a successful lawsuit, this money will be awarded to the estate and eventually disbursed to the estate’s beneficiaries.

Where the decedent’s surviving family members are concerned, New York only allows the estate to claim damages for pecuniary losses, ones you can put a specific price-tag on. In other states, survivors can also claim damages for their own pain and suffering, but New York doesn’t allow for this possibility. Thus, most wrongful death claims involve financial losses, like:

  • burial and funeral costs
  • medical expenses from the decedent’s final injury or illness
  • lost Social Security benefits
  • loss of inheritance
  • loss of wages and / or financial support (if the decedent had financial dependents)

New York is one of only a handful of states that allow negligence claims to be filed on behalf of both estates and surviving family members. Most states have decided that, once a person dies, their right to sue over harmful wrongdoing is extinguished. Thus, the first claim in a wrongful death lawsuit, the one for “conscious pain and suffering,” is actually rather unusual. On the other hand, most states provide stronger protections for surviving family members, by allowing them to claim damages for their own pain and suffering.

Two Different Time Limits For Two Different Claims

New York has established a collection of laws, known as “statutes of limitations,” that limit the amount of time people have to file civil lawsuits. As you might expect, the statute of limitations that will come into play in wrongful death lawsuits is particularly complicated, since these lawsuits usually involve two separate claims for compensation.

“Conscious pain and suffering” claims, which are filed on behalf of the decedent’s estate, are governed by their own statute of limitations. The estate has either:

  • 3 years from the date of negligence or wrongdoing that led to the death, or
  • 1 year from the date of death

whichever rule allows the estate more time to file suit. Where “wrongful death” claims, filed on behalf of surviving loved ones, are concerned, the case must be filed within 2 years of the death.

Exceptions To The Statute Of Limitations

There are three notable exceptions to the general 2-year time limit on wrongful death claims:

  1. when the decedent has only one distributee and that person is a minor, the statute of limitations can be paused until a guardian is appointed or the distributee turns 18, whichever date comes first
  2. when the state has initiated a criminal action against the same defendant, over the same wrongful conduct, the estate has up to 1 year after the criminal action has ended to file a civil lawsuit
  3. when the death was caused by the terrorist attacks of September 11, surviving loved ones have 2.5 years to file a wrongful death lawsuit, beginning on the date of death

Needless to say, these exceptions will not apply to every case. Complying with the relevant statute of limitations, however, is crucial. File suit after the statute has run out and the case will almost always be dismissed out-of-hand.

Speak With A Bronx Wrongful Death Attorney

Contact the experienced attorneys at Lipsig, Shapey, Manus & Moverman today for a free consultation. With local offices in the Bronx, our wrongful death lawyers have helped numerous families pursue justice after the tragic death of a loved one. You can learn more about your family’s legal options at no charge and no obligation. We may be able to help.