Every state in the United States of America will have its laws which govern wrongful death lawsuits. It is important that you know the information relating to wrongful death in New York if you are going to file a lawsuit in the state. You should consider what the laws are, you can sue and what damages could be claimed. It is best to seek the help of wrongful death attorneys in order to succeed in your claims.
The Definition Of Wrongful Death In New York
Before you can look at the intricacies of the wrongful death laws in New York, you need to know how the state legally defines wrongful death. In New York, there are five elements which are necessary to establish a claim for wrongful death according to the New York Estates, Powers and Trusts Code part 4. The first element is that death has occurred with the second being that the death came from the unjust behaviour of the defendant.
You will also need to show that there was a cause of action that the late person could have pursued in court if they had not died. The deceased will also need to be survived by one or more people who have suffered some form of loss as a direct result of the death of the individual. The damages that the estate can recover will be the final element which needs to be shown.
It is important to note that the New York Court of Appeals held that the state would not recognize the wrongful death claim of a fetus before birth even if the death is caused by the unlawful act of another individual. For more information about this ruling, you should look into Endresz versus Friedberg, 24 N.Y.2d 478.
Who May File A Wrongful Death Claim In New York?
It is important to know who is legally allowed to file a wrongful death claim in New York if you are considering this. The responsibility of filing the claim is placed on the shoulders of the personal representative of the deceased person’s estate. A family member who is not the personal representative of the deceased person’s estate will not be able to file a wrongful death claim. This is something that other states will allow but is not legally allowed within New York.
However, it is possible for the wrongful death claim to seek damages relating to the loss suffered by the deceased person’s beneficiaries, heirs, and devisees. This amount will be in addition to the damages that were sustained by the deceased person’s estate. If the court awards the damages, the personal representative of the deceased person will be treated as holding the damages in trust for the surviving family members.
The Damages In The Wrongful Death Claim
The damages which are awarded in these cases will vary depending on the lawsuit which has been filed. The lawsuit will need to demonstrate certain facts to the court to be awarded certain damages. The damages which could be claimed will include the expenses for the burial and funeral of the deceased individual.
Claims may also be made for any reasonable nursing, medical and other health care expenses that are related to the deceased person’s illness or injury. There will need to be a direct relation between these costs and the wrongful death claim. Wages and benefits lost between the time of the final injury and the deceased person’s death may also be claimed.
The value of the support and services which the deceased person provided for their family members can also be claimed in the lawsuit. The value of parental care, nurturing and guidance could be awarded to any surviving children that the deceased may have along with the loss of inheritance suffered by the surviving children. An award may be made for conscious pain and suffering which was endured by the deceased because of the final illness or injury they sustained. The interest of 9% on damages awarded may also be awarded and will be calculated from the date of death.
Unlike some states, New York doesn’t allow surviving family members to claim damages for their pain and suffering, loss of companionship and mental anguish as a result of the wrongful death. Parents can recover damages for lost value of services such as household chores which have been performed by a child. However, this amount is reduced by the reasonable costs of caring for the child until they would have reached adulthood.
The Statute Of Limitations
The statute of limitations is a time limit placed on the filing of a lawsuit and relates to some different areas of the law. In the case of a wrongful death lawsuit in New York, the claim will need to be filed within two years of the date of the deceased person’s death. If more than two years has passed since the date of death, you will not be legally allowed to file a lawsuit.
There are no exceptions to the statute of limitations in wrongful death lawsuits in New York. There will be no toll or stop placed on the statute if the personal representative of the deceased person is a child or legally incapable of filing the claim. In these cases, a guardian of the personal representative will be able to file the wrongful death lawsuit on their behalf. When doing this, there will need to be evidence that the personal representative of the deceased person is unable to file the lawsuit on their own.
There are many aspects to wrongful death lawsuits that you need to know about before you file a lawsuit. It is recommended that you hire an attorney who is experienced in this field of law to help you with this. Of course, you will need to ensure that you are filing the lawsuit within the two years statute of limitations and that you are the personal representative of the deceased person’s estate or the guardian of the representative of the estate.