Wrongful Death – just the title of the topic can send chills down one’s spine. The lost of a loved one is hard enough when it comes as a result of natural causes, but when the life of a family member is taken away due to the negligence of another, the pain and grief of the survivors is magnified.
The civil justice system in New York provides for damages in what is known as a wrongful death action, but shamefully, the archaic law (over 160 years old!) that governs such cases greatly limits what damages can be awarded regardless of the emotional and physical impact that a family member’s death can have.
Damages presently NOT Available in New York
- Grief and Anguish caused by the decedent’s death;
- Any Disorder caused by such Grief or Anguish;
- loss of Love, Society, Protection;
- loss of Comfort, Companionship and Consortium resulting from the decedent’s death.
These are the real consequences that befall a family following the untimely death of a loved one. These categories of damages are available to the survivors in 41 other states, but not New York. Unfortunately, there are strong interests at work in Albany that counter the efforts of families to change New York’s wrongful death law each year.
If you are reading this blog and have suffered the loss of a family member, please accept our condolences. We will explain what damages are available to you outside of what are known as Pecuniary damages in the event that a wrongful death action is brought against those responsible for the death of your loved one.
Experienced wrongful death attorneys are needed in order to maximize the recovery to a family in such matters given the limits placed by New York law especially when such lawsuits have to be brought in Westchester County or Rockland County. We sit down with our clients and explain the wrongful death statute and what must be done in order to effectively represent their interests and seek justice for their loss.
There are two types of non-pecuniary or non-economic damages – these are the types of damages that have nothing to do with the decedent’s earnings, or funeral or medical expenses etc. Non-economic damages are available for Pre-Impact Terror and for Conscious Pain and Suffering. These categories of damages require proof of the most heart wrenching facts and circumstances of the case.
The law permits proof that the decedent in the moments before the collision or event which took his or her life was aware of what was about to happen. Think of a vehicle occupant who sees the truck just about to strike the host vehicle. Think of the motorcyclist who sees the other vehicle too late to avoid the impact. Think of the passengers of a doomed plane.
What is the value of a claim for pre-impact terror? Let’s look at two examples.
In Donofrio v Montalbano, a passenger was killed in a one car fatal collision on the Cross Island Parkway. The sole witness to the collision testified that just before the impact, “the car swerved out of its lane, went out of control, and started fishtailing; then, “it looked like the wheels caught the curb and the car just shot like a slingshot right * * * past the overpass”, and hit the tree within a second. The witness estimated that seven to ten seconds elapsed between the time that the car first sped past him and its collision with the tree. The passenger was heard moaning and groaning shortly after the impact, and was declared dead”.
The jury was understandably touched by such testimony and awarded 1.5 million dollars. This was reduced to $100,000 on appeal.
In Lang v Bojou, a motorcyclist was killed in a collision with a truck. The evidence revealed that the motorcyclist attempted to take evasive action before impact an in the words of the court ” …at some point prior to impact, Lang perceived the inevitable, that he was going to endure grave injury or death, so as to justify making an award for this “pre-impact terror”. The jury awarded over $200,000, but this sum too was reduced on appeal to $100,000.
In calculating the value of the pre-impact terror category of damages, the Appellate Courts of New York have apparently set the ceiling at $100,000.
We will discuss the next category of non-pecuniary damages in our next blog.