Wrongful Death: How Are Damages Calculated And Who Recovers

Posted By Michael R. Varble || 25-Oct-2013

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.

Categories: Personal Injury

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