Written by: Jesse Minc Portrait Jesse Minc

Every personal injury case involving a wrongful death involves unspeakable tragedy.  Despite the extreme grief, not to mention the substantial financial and logistical difficulties, involved when a loved one dies because of a personal injury that causes a wrongful death, the law in New York is harsh and, often, adds insult to injury for families of the victims of fatal personal injuries.  In this article, I will explain the remedies available to you and your family if a loved one is the victim of a personal injury that causes a wrongful death in New York so that you can better understand what to expect if you decide to bring a case related to the wrongful death of a loved one in the Bronx or any othe New York jurisdiction.

First, it is important to understand what your rights are.  Under the law in New York, rights translate into “claims” when brought to court.  There are two primary claims brought in connection with a wrongful death case:  (1) Wrongful Death, and (2) Conscious Pain and Suffering.  Nuance abounds within each category, and only the best attorneys know the right questions to ask to make sure that full compensation for a claim can be achieved.

If a loved one dies due to suffering fatal personal injuries, there are several categories of claims that can produce recoveries for the victim’s family if prosecured correctly.  Remember:  not every lawyer in the Bronx, or anywhere in New York, is equipped to make certain that all claims are brought in the right way.  A wrong move in this regard can reduce the amount of compensation and retribution available to the families of victims of fatal personal injuries in New York.

Wrongful Death

Under the controlling law, known as the New York Estates Powers and Trusts Law (the “EPTL”) Section 5-4.3 (the “Wrongful Death Statute”), only pecuniary (i.e., monetary) damages can be awarded to the family of someone who suffers personal injury that leads to wrongful death.  In english, this means that the family can only be compensated for the amount of actual dollars, or services that are quantifiable in dollar figures, that a late family member contributed.  The largest wrongful death awards are found in cases where a victim of fatal personal injuries has a large family including a spouse and minor children.

While it is easy to say that a loved one was a keystone of a family, convertine words into dollars is always difficult, and requires the use of expert witnesses (economists) to quantify the value of the decedent family member’s contributions to the family both past and future.  Many lawyers will tell you that the value of wrongful death cases are extremely limited in New York; however, the best lawyers, those who are creative, can sometimes find ways to translate the love and affection that a victim of fatal personal injuries into money that can help you and your family move forward after a devastating loss.

When my firm evaluates a New York wrongful death case, we look at the following factors in putting a dollar value on a claim for wrongful death of a particular person:  (1) Past financial earnings, (2) future financial earnings, (3) special talents, (4) emotional and/or parental guidance provided to family members, (5) housework and other work performed in support of the family, and (6) love and affection, just to name a few.  In our experience, juries understand that, while a family member may not have been paid for something that he or she did, the void left by her or his wrongful death constitutes a cost upon the surviving family that can be quantified and must be compensated.

Unfortunately, the Wrongful Death Statute, if not handled well, will necessarily ensure that, when the victims of Bronx personal injuries die and are not rich, their families will not be fairly compensated for the loss of life that they have to endure.  In a word, the Wrongful Death Statute in New York, like many other things in modern era New York, favors the rich.  Obviously, a hedge fund manager or other rich person can easiliy come up with a high value for the money lost by their family as a result of that person being unable to earn and provide finaicial support after the victim is gone.  For average people like you and me, fair compensation can only be achieved with proper care and substantial investment of both time and energy in a case, as our lives are no less valuable than the lives of the richest among us, no matter what the Wrongful Death Statute has to say. While arcane, the Wrongful Death Statute can be beaten with creativity and care in crafting a case to show why your loved one’s life was valuable.

Conscious Pain and Suffering 

If a victim of a fatal personal injury is aware of the circumstances of their injuries (including physical pain, suffering, mental anguish, fear and terror), their family may bring a claim for conscious pain and suffering against those responsible.  It is not enough that a victim of fatal personal injuries be alive for some time after they are fatally hurt; the victim must appreciate what they are going through for a recovery to be available, and success or failure turns on providing proof of this awareness.

Top personal injury attorneys know how to build a successful case for conscious pain and suffering by asking the proper questions of witnesses (so that issues regarding, for example, statements of pain made by the victim are properly placed in the record of the case), analyzing medical records to prove awareness, and retaining expert witnesses who can provide testimony as to why it would be expected that, given the circumstances of a case, the victim would have known what was happening to them and actually experienced the horror of dying.  The only way to achieve fair compensation for claims for conscious pain and suffering is to walk a jury through each moment, step by step, of what a victim felt as they languished from fatal personal injuries.  This requires experience and the utmost care in crafting a case; otherwise, success may be out of reach.

In cases where a victim of fatal personal injuries either are not high wage earners, have adult children or are not married (whether widowed, divorced or simply single), proving consicous pain and suffering is often the only way to ensure that you and your family receive fair compensation for your loss.

No Claims for Family Grief and Hardship 

Finally, families of victims of fatal personal injuries, conscious pain and suffering and wrongful death claims must be aware that New York law does not recognize family members’ claims for their own pain, suffering and anguish that they inevitably feel when they lose a loved one in a tragic, fatal accident.  In fact, the judge in a wrongul death personal injury case will specifically instruct the jury not to award damages (i.e., financial compensation) for the pain and suffering that a decedent’s familiy has gone through.  However, there are ways to structure a case so that the jury is aware of the family’s pain; the best personal injury lawyers can link this type of testimony with the testimony related to wrongful death (in the form of the loss of support, both financial and emotional) and conscious pain and suffering so that the jury knows what you have been through.


Category: Personal Injury