Filing a wrongful death lawsuit is sometimes the only way to receive the compensation and justice your loved one deserves. Unfortunately, these lawsuits are complicated and confusing. Navigating through legalese is even more difficult while recovering from the loss of a loved one.
When is a death a “wrongful death?”
If someone dies due to negligence, recklessness, or wrongful acts, they may be considered the victim of a “wrongful death.”
Simply put, wrongful death lawsuits are personal injury lawsuits that involve the death of a victim. Since the victim cannot file the claim in the case of wrongful death, that responsibility falls to a loved one. Hence, the argument in a wrongful death suit is if alive, the victim could file a personal injury suit.
In practice, wrongful death lawsuits tend to look very similar to medical malpractice, auto accident, or premise liability lawsuits. Similarly, wrongful death suits are considered a civil issue, filed and heard in civil court.
Let’s look at an example.
A distracted driver hits someone and kills them. A wrongful death claim would argue that the negligence of the texting driver caused the death. If the victim had lived, they could have filed a personal injury lawsuit against the texting driver.
Who can file a wrongful death lawsuit?
In most states, children, spouses, or dependents of the victim are able to file a wrongful death lawsuit. The person filing the claim is the person responsible to account for the damages awarded.
New York State requires that personal representatives of the victim’s estate file the wrongful death claim on behalf of the Estate, not individual family members. The Surrogate’s Court, along with a personal will, appoints a representative to handle the affairs of the Estate. Furthermore, the Surrogate’s Court approves any settlement of a wrongful death action. After the Court approves the settlement before its acceptance.
What information is necessary to establish a claim?
New York requires proof of the following to establish a wrongful death claim:
- A death
- Negligence, recklessness, or wrongful acts of the defendant caused death
- That there are damages that the estate can recover
Without solid proof of these elements, your case faces denial.
Possible Recoverable Damages
In most personal injury lawsuits, damages are straightforward: claimants can sue to cover the cost of their medical bills, loss of income, pain and suffering as well as other damages. In personal injury cases, a plaintiff can receive past damages, including pain and suffering for example, but also future damages. Future damages include the cost of these items looking forward beyond the date of the verdict in the case. Wrongful death cases permit recovery for damages, such as:
- Funeral and burial expenses
- Pain and suffering experienced by the victim from the time of the onset of the injury to the time of death
- Medical or health care expenses that came from the victim’s injuries or illnesses
- Wages lost between the time of the victim’s injury or illness until the time of his or her death
- Future earnings that would have been spent for the care and support of his or her beneficiaries
- Value of support/services given to the victim’s immediate family
- Costs of care or support for the victim’s surviving children
- Lost inheritance
Individual family members cannot file a claim asking for compensation related to their grief or pain and suffering. The Court instructs jurors not to consider or make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. However, services like grief counseling or lost wages from days off of work awarded in a wrongful death claim.
How long do I have to file a wrongful death lawsuit?
New York has a statute of limitations that requires wrongful death lawsuits to be filed no later than two years after the death of the individual, provided that the claim is made against a private defendant. After those two years, you cannot file a wrongful death claim. However, if you are the minor child of a wrongful death victim, your time to file starts to run after you turn 18 years old.
The two year statue of limitations does not apply against a municipal defendant. Municipal defendants include the City of New York, or New York City Health and Hospitals Corporation. Instead, filing must occur within 90 days of the accident.
In general, however, it is important that you file your claim as soon as possible to ensure that it is timely.
If your loved one died due to another’s negligence, recklessness, or wrongful acts, act on his or her behalf immediately. Contact a New York personal injury lawyer today to see if you qualify to file a wrongful death claim and fight for the compensation you deserve.
About the Author:
Mr. Macaluso has 25 years of legal experience working in New York State Courts, the United States Federal Court, and the New York State Court of Claims. His many years of experience and expertise in personal injury law has helped his clients win millions of dollars in damages and losses. He specializes in medical malpractice cases and accidents involving a wide range of faulty vehicles and products.