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October 2020

Who Can Sue for Wrongful Death?

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When someone dies or is killed due to the negligence or misconduct of another, including murder, the surviving members of the victim’s family may sue for wrongful death. When you file a wrongful death lawsuit, you are seeking damages for the survivors’ loss which includes lost wages from the deceased, lost companionship and expenses for the funeral. The right to file a lawsuit for wrongful death is fairly new, common law did not allow this kind of lawsuit. Every state in this country now has some kind of wrongful death law.

Wrongful death claims involve all types of fatal accidents from simple car accidents to medical malpractice or product liability cases. People, companies and government agencies can be legally at fault for acting negligently. To file a wrongful death lawsuit in New York State the following must be shown:

– The death of a person
– The death was caused by wrongful conduct or negligence of another
– The wrongful conduct/negligence could be subject of a lawsuit where the person harmed could have recovered damages if they didn’t die (pain and suffering)
– Survivors who have suffered specific damages due to the death

A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent’s death, otherwise known as the real parties in interest. Unlike many other state, New York places the responsibility for filing a wrongful death claim to the personal representative of the deceased persons estate. New York State will not allow a family member to bring a wrongful death claim to court unless that family member is also the personal representative of the deceased person’s estate. New York law allows the following individuals to file a wrongful death lawsuit:

– The decedent’s spouse
– The decedent’s children
– The decedent’s parents
– The personal representative for the estate of the decedent

Damages awarded in New York wrongful death cases depend on the specific facts that are demonstrated in court. Damages have been awarded in New York wrongful death cases for losses such as:

– Funeral and burial expenses
– Reasonable medical, nursing and other health care expenses related to the deceased person’s final injury or illness
– Wages and benefits lost between the deceased person’s final injury or illness and his or her death
– Value of support and services the deceased provided to family members
– Value of parental nurturing, care and guidance to surviving children
– Lost inheritance suffered by surviving children
– Conscious pain and suffering endured by the deceased due to the final injury or illness
– Nine percent interest on the damages award, calculated from the date of birth

New York State does not allow surviving family members to recover their own damages for pain and suffering, mental anguish or loss of companionship even if the deceased is a child. Parents may recover damages for the lost value of services such as household chores, performed by the child but the amount is reduced by the reasonable cost of caring for the children until they have reached adulthood.

A wrongful death claim in New York must be filed within two years of the date of the deceased person’s death. This is known as a statute of limitations, bars wrongful death claims from being filed in New York courts if more than two years have passed between the date of death and date of filing. New York does not stop the statute of limitations from running if the personal representative of the deceased person is a child or legally incapable of filing the claim. In these specific cases, the guardian of the child or incapable person is expected to file the wrongful death claim instead.

Nothing can take away the pain and suffering of losing a loved one but if the loss is due to another person’s negligence, you may be entitled to recover damages. Contact Losi Gangi if you feel you have a valid wrongful death claim at 716-854-1446.