The loss of a loved one can leave you and your family emotionally and financially devastated. When someone else caused your loved one’s death, you may have a wrongful death claim. Wrongful death claims are meant to help make up for the immense losses that you and your family have experienced due to losing your family member. If someone else’s misconduct led to your family member’s death, contact a Long Island wrongful death attorney at Sullivan Papain Block McGrath Coffinas & Cannavo, P.C. to discuss your potential claim and recovery options.
Proving wrongful death claims is similar to proving a regular personal injury claim with a few added complexities. Recoverable damages in wrongful death claims are a little more limited and complicated than personal injury recoveries. For example, surviving family members are not permitted to recover compensation for their pain and suffering. In certain circumstances, however, financial recovery for the deceased’s pain and suffering may be available.
A wrongful death occurs when one person’s misconduct causes the death of another person. In order to succeed in a wrongful death claim, the plaintiff must prove the following:
Surviving family members are not entitled to compensation for the pain and suffering they experienced as a result of losing their loved one. Still, as previously mentioned, they may recover compensation for other losses, including lost financial support, loss of inheritance, loss of parental guidance and funeral expenses.
In order to hold a defendant accountable for wrongful death, you must prove that the defendant breached his or her duty of care owed to the deceased. In some cases, there is a clear relationship between the deceased and the defendant establishing a duty of care. For example, when a doctor-patient relationship exists, the doctor must treat the patient according to the accepted medical standard of care. If a doctor’s treatment and care fall below the accepted medical standard of care, the doctor has breached his or her duty to the patient.
Other times, there may not be an intentional relationship, but the defendant still owed a duty of care to the decedent. For example, if a pedestrian is crossing a street in a crosswalk and has the right of way, an automobile driver owes the pedestrian a duty of care to abide by traffic laws and stop for the pedestrian. If the driver breaches that duty of care and negligently or recklessly strikes the pedestrian, the driver has breached his or her duty of care. Similarly, property owners and managers owe a duty of care to property visitors. Owners are required to keep their property in reasonably maintained and safe conditions, and to also discover and warn visitors of potential dangers.
It is essential that you have an experienced legal advocate representing your best interests. Our wrongful death attorneys will fight for your maximum financial recovery and negotiate settlements that fully and fairly compensate you and your family. If settlement negotiations break down, we will be prepared to fight for your family’s financial recovery at trial.
Damages in wrongful death claims frequently include loss financial support, loss of future income, loss of benefits, funeral expenses, medical bills, and loss of the value of the decedent’s household services. Compensation for additional damages may be available as well.
New York law can be confusing when it comes to who may recover under wrongful death claims. In general, the decedent’s spouse and children may be entitled to compensation, and if the decedent does not have a spouse or children, the decedent’s surviving parents or brother and sisters if the decedent provided financial support to those individuals. In some cases, grandchildren may be entitled to wrongful death compensation, as well.
The decedent’s estate may also benefit in some cases, which may end up compensating the same parties either way. See below for more information on survival actions. An experienced attorney will help you navigate wrongful death complexities and will also make sure that important deadlines, such as the statute of limitations, are met.
A survival action is a distinct and separate action from a wrongful death claim. Unlike wrongful death claims, survival actions are brought on behalf of the decedent for losses that he or she suffered in the accident, eventually resulting in his or her death. In general, survival actions may be brought if the decedent would have been successful in a personal injury claim against the defendant had the decedent survived his or her accident injuries.
These actions are brought by the deceased’s personal representative to recover compensation for the decedent’s losses experienced before death. Recoverable damages include economic losses, such as lost wages and medical bills. In contrast to wrongful death claims, noneconomic losses, such as the decedent’s pain and suffering, are recoverable in survival actions.
To recover compensation for pain and suffering in survival actions, decedent representatives must demonstrate that the decedent experienced pain and suffering prior to death. Plaintiffs have used many ways to prove pain and suffering, such as witnesses testifying to statements made by decedents describing their pain or testifying to hearing sounds made by the decedent such as screaming, crying, or moaning.
Courts have also recognized pre-impact terror as recoverable pain and suffering damages. Survival action plaintiffs can demonstrate these damages by proving that the decedent was aware of, anticipating, and fearful of the impending accident and injuries. For example, a jury may conclude that the decedent experienced pre-impact terror based on witness testimony describing the frightened look on the decedent’s face immediately before an accident impact. Other evidence may also be used, such as demonstrating that the decedent applied his or her brakes before an automobile accident occurred.
In New York, parties who are entitled to recover compensation may file a wrongful death claim. Depending on the circumstances of each case, children, spouses, and parents are common wrongful death plaintiffs. The executor of the decedent’s estate may file an action on behalf of the claim beneficiaries to help them recover compensation for the losses they suffered due to losing their loved one.
When the decedent suffered losses before dying, only an estate representative may file a survival action. This is because the claim is for the compensation the decedent would have recovered had he or she lived and is not intended to compensate the survivors for their losses. Any jury award in a survival action will go to the decedent’s estate or heirs, depending on whether or not there is a will, but those people who will eventually benefit from a survival action are not entitled to file the action unless they are also the estate representative.
With limited exceptions, wrongful death actions must be filed within two years of the decedent’s death, or you could lose your right to collect compensation under such a claim. It is important to remember that even though a wrongful death claim and survival action may involve the same death and accident circumstances, the two claims are separate and distinct causes of action.
Accordingly, a separate statute of limitations applies to survival actions, and it is different than that for wrongful death claims. Survival actions must be brought within three years of the date of the accident. Shorter time limitations apply against actions brought against government entities;; thus, it is important to speak with an attorney as soon as practicable to know the applicable statute of limitations to a potential case.
If you believe you have missed the deadline for filing either type of claim, it is important to speak with an attorney as soon as possible. Under some circumstances, you may be eligible for one of the statute of limitation exceptions.
If there was a criminal case against the defendant because of the accident and resulting death, you might have a statute of limitations exception and a longer amount of time to file your claim. Shorter time limitations apply against actions brought against a municipality; thus, it is important to speak with an attorney as soon as practicable. For example, if the defendant in your case was charged with murder or vehicular manslaughter, you may have a different time limitation that does not begin to run until the criminal case has been concluded. There is also a filing deadline exception in some circumstances where the decedent’s only beneficiary was a minor at the time of the accident.
As previously mentioned, if you miss the limitation deadline, you may be prohibited from filing your claim and collecting compensation from the defendant. In addition to compensation that helps with financial stability, surviving family members often feel a sense of justice and accountability after a defendant has been found liable for their loved one’s death. When survivors lose their right to file a claim because of a missed deadline, they may miss out on the closure they would otherwise get if the responsible party had been held accountable for their wrongful conduct and fatal consequences.
Common types of wrongful death claims include the following:
Contact a Long Island wrongful death attorney at Sullivan Papain Block McGrath Coffinas & Cannavo, P.C. to help you begin the financial recovery process. You deserve to be compensated for your losses, and the responsible party should be held accountable. A wrongful death claim will not bring back your loved one, but it may help you and your family move forward with some much needed financial security.
Contact our Long Island personal injury attorneys today for a free initial consultation.