While I normally try to inject a little humor into my blog posts, today
I am going to discuss wrongful death actions and there simply is no way
to make this situation funny. Sorry. When a spouse or loved one is lost
due to the negligence of someone else, it is a terrible tragedy. Everyone
loses when something like this happens and I hope that our readers do
not ever have to experience this situation. Unfortunately, people do pass
as a result of someone being less than attentive and the law affords the
executor or administrator of that person's estate and family members
the ability to recover financial damages.
To plead a wrongful death action, you must have the following five (5)
elements: (1) a death; (2) caused by the wrongful conduct or default of
the defendant; (3) giving rise to a cause of action which could not have
been maintained at the time of death by the decendant (the person who
died) if death had not occurred; (4) survival by distributees who have
suffered a financial loss by reason of the death; and (5) the appointment
of a personal representative. Normally, distributees are family members
as is the person who is appointed to be the representative of the estate.
The person who passed does not have a cause of action for their own death,
a spouse does not have a claim for loss of services due to the death either,
but the person who passed has a claim for pain and suffering prior to
their death and the surviving spouse has a loss of services claim during
this time frame as well.
The law in the state of New York also limits damages resulting from a person's
death to financial injuries. A jury is not permitted to consider or issue
an award for sorrow, mental anguish, injury to feelings or for loss of
companionship. A jury is instructed by the Court at the conclusion of
a case, to consider the value of the deceased person to his or her distributees,
i.e family members. Courts look at the character, habits and ability of
the person who passed away and the condition of the family members that
depended on him or her, the services that the deceased would have performed
for the family members, the portion of the deceased's earnings that
would have been spent in the future for the care and support of the family
members, the age and life expectancy of the person who passed away, the
ages and life expectancy of the family members that depended on the deceased
person, and the intellectual, moral, and physical training, guidance and
assistance that the deceased person would have given to his or her children
had that person lived. The Courts also takes into consideration the amount
of increase in earnings that the deceased person would have made and how
much his or her estate would have increased over time.
The public and attorneys alike should keep in mind that in the Second Department
in New York (which consists of Suffolk, Nassau, Queens, Kings, Richmond,
Westchester, Putnam, Dutchess, Rockland, Orange, and Sullivan Counties),
a jury is only to determine that total economic loss. The trial Court
is to apportion the damages after a hearing. Courts should not instruct
a jury to itemize the amount of economic loss to be awarded to the family members.
How do we, as attorneys, figure out what the damages would be ? Well, you
will never be able to place an exact dollar figure on the guidance a parent
will provide to a child. However, attorneys use life expectancy tables
issued by the National Center for Health Statistics to determine how long
a person would have lived. Then we attorneys will normally use an economist
to examine the education and work history of the person that died and
have the economist perform an analysis of the deceased person's expected
earnings over the remainder of his or her life. Prospects for advancement
in a person's career and increased earning as a result are normally
taken into consideration by the economist as well. The deceased person's
health and nature of their occupation are considered as well as their
work life expectancy.
Reasonable expenses incurred from the moment of injury until the moment
of death may be recovered too. Medical expenses may be recovered for the
period prior to the person passing away as well as nursing, dental, loss
of earnings, impairment of earning ability, custodial care, rehabilitation
services, pain and suffering, and funeral expenses may all be recovered.
In addition, if a person passes away after a lengthy period of time where
they were alive and suffering from injuries, the estate can also recover
for the conscious pain and suffering of the person who died. In this situation,
you as a plaintiff who is the administrator of an estate will have two
separate claims, one for the conscious pain and suffering prior to death
and then a claim for the wrongful death.
In the end, when a family member passes away, it is a tragic event. No
one wants to really consider these issues but often times they must, particularly
if there is a young family involved with minor children. If you or someone
you know has been the victim of someone's negligence and has passed
as a result, please give us a call so we may use our 150 years of collective
experience to help you and your family. While we will never be able to
make your family whole again, maybe we can make the situation more tolerable.
We always offer free consultations and free case evaluations and we have
night and weekend appointments if you need one. I and all the other staff
and attorneys at Michael R. Varble & Associates, P.C. hope you do
not have to experience this kind of a tragedy, but we will be happy to
fight for you if you do.