What Is a Wrongful Death Lawsuit?
When someone passes away in an accident caused by another person or entity’s negligence, the victim’s family may be entitled to pursue compensation from the party that caused the accident. Family members generally file a wrongful death suit to obtain compensation for medical bills, funeral costs, and other challenges they’re facing due to their loss.
Who Can File a Wrongful Death Lawsuit in New York?
According to the New York law §4-1.1, only the following parties are permitted to take legal action on behalf of someone who passed away in an incident caused by another party:
- Children of the decedent
- Parents of the decedent
- The decedent’s spouse
- The executor of the decedent’s estate
If you have one of the relationships mentioned above with the deceased individual, it’s highly likely that you’ll be eligible to pursue compensation.
How to Prepare a Wrongful Death Claim
Here are five steps to take if you are preparing a wrongful death claim in New York:
Step #1: Call a New York Wrongful Death Attorney Immediately
You do not have to go through the legal process alone. Navigating the claims process can be challenging. Defendants and their insurance companies do not make things easy on the family of the victim. It is best to consult with a qualified lawyer as early as possible in the claims process. An experienced wrongful death attorney will make sure that the rights and interests of your family are protected.
Step #2: Obtain a Copy of the Death Certificate
Before you can take action, your family must get a copy of the official death certificate. You can order a copy online through the New York State Department of Health. If you have any questions about obtaining or understanding the death certificate, a wrongful death lawyer can help.
Step #3: Select a ‘Personal Representative’
When a person is hurt in an accident, they have the right to file a personal injury claim against the responsible party. In a wrongful death case, a personal representative must be selected to bring the claim. If the deceased person had a will, they may have already selected their personal representative. Otherwise, the next-of-kin will typically assume the role.
Step #4: Investigate the Accident—Securing Evidence
To bring a successful wrongful death claim, you must prove liability. Most wrongful death claims in New York are based on negligence—meaning the personal representative must present evidence proving that the defendant’s carelessness/recklessness contributed to the death. Fatal accidents require a proactive, comprehensive investigation. A wrongful death attorney can help you secure the evidence your family needs to get justice.
Step #5: Determine Damages—Document the Impact
The family should always start gathering evidence related to damages. As explained by the Department of Justice (DOJ), the surviving family members can seek financial compensation for their losses. Be proactive: Make sure that you and your family document the full extent of the impact—from the direct economic costs such as funeral and burial costs to intangible damages such as the loss of parental care and guidance.
Do You Have to Go to Court for Wrongful Death in New York?
While some cases must go to trial to reach a favorable outcome, many are resolved before the plaintiff and defendant ever step foot in the courtroom. A lawyer can assess your situation and determine if it’s likely you’ll have to go to court for your wrongful death claim.
Your attorney can also push for an out-of-court settlement, negotiating with the defendant’s lawyer to obtain a fair payment for your suffering and financial losses. In most cases, defendants are eager to settle out-of-court, as there are certain incentives to do so, including:
- Court costs: Settling out of court can be more cost-effective than going to trial. Settling out-of-court will allow the defendant to avoid paying attorney fees, court fees, and other expenses.
- Time: Wrongful death trials can last months or even years. The defendant in your case may agree to settle out of court to avoid having to endure a lengthy legal battle.
- Uncertainty: Trials can be unpredictable, which means there’s always a chance the defendant will get an unfavorable outcome. Settling out of court gives more control to both sides, making it likely that the defendant will want to avoid a trial.
- Reputation: Since court proceedings can attract negative media attention, avoiding a public trial can help protect the defendant’s reputation. If the defendant wants to avoid the reputational damage of a trial, you probably won’t have to go to court for your wrongful death claim.
What if You Have to Go to Court for a Wrongful Death Claim?
In the event that your claim doesn’t settle out of court, you’ll likely have to go to trial to get the compensation you deserve. However, your lawyer can handle your entire case, making the process as easy as possible for you. Here’s what your wrongful death attorney can do to make your court case successful:
- Present evidence that demonstrates the defendant’s negligence and liability
- Convey the impact that your loss has had on you to the jury
- Use eye-witness testimony to strengthen your case
- Give compelling opening and closing statements
- Refute the defense’s evidence and legal arguments
- Fight tirelessly to obtain the verdict you need to move forward
Compensation You Could Receive From a Wrongful Death Claim
Whether your case settles out of court or if you have to go to court for your wrongful death claim, the compensation you may receive stays the same. The average wrongful death settlement in New York includes the following financial remedies:
- Medical bills
- Funeral costs
- Burial expenses
- Loss of financial support
- Pain and suffering
- Mental anguish
- Loss of consortium
- Loss of enjoyment of life
These damages can provide the financial stability you need to honor your deceased loved one’s memory, cope with your grief, and cover any financial losses you’ve suffered due to their passing. That said, you’ll need a skilled attorney to benefit from these damages. A lawyer will determine which forms of compensation you’re owed and fight for the settlement you deserve.
Filing Deadline for Wrongful Death Suits in New York
New York’s statute of limitations for wrongful death actions gives you two years from the day of your loved one’s passing to submit a lawsuit.
If you don’t act within the period set forth by the statute of limitations, you’ll be denied the compensation you need to navigate the grieving process. The good news is that as long as you contact a skilled lawyer as soon as you can, the attorney will be able to file your suit before it’s too late.
Importance of Hiring a Wrongful Death Lawyer
Filing a strong wrongful death action requires a great deal of effort, experience, and resources. As a result, taking legal action without an attorney is highly inadvisable, as it may result in mistakes that cost you your compensation. Instead, you’ll want to hire an experienced attorney who has a history of obtaining favorable case results for clients dealing with similar situations.
Here’s what a skilled wrongful death attorney can do to make your case successful:
- Investigate the incident your loved one was fatally injured in
- Collect eyewitness testimony, photos of the accident scene, medical records, accident reports, and other forms of evidence
- File a compelling wrongful death suit on your behalf
- Represent you in court and fight for a fair verdict
- Explain what forms of compensation are included in the average wrongful death settlement
- Offer legal counsel throughout your case
Wrongful Death vs. Survival Action
Families can seek damages for their loved one’s conscious pain and suffering by filing a separate survival action. You can file this claim in addition to a wrongful death lawsuit. An estate representative files the claim, and compensation is distributed to the victim’s heirs based on a will or New York law.
| Aspect | Wrongful Death Claim | Survival Action Claim | |
|---|---|---|---|
| 1 | Who Initiates the Claim | Brought on behalf of the family members | Brought on behalf of the deceased person |
| 2 | Purpose of the Claim | To compensate surviving family members for their losses | To compensate for damages occuring after the negligent act but before death |
| 3 | Type of Damages Compensated | Funeral and burial expenses, loss of income, loss of companionship, loss of parental | Medical expenses, pain and suffering, other post-accident damages |
| 4 | Claim Filed By | Personal representative of the estate | The estate of the deceased |
| 5 | Compensation Recipient | Surviving family members | The estate (distributed according to the deceased's estate plan or New York |
Learn more about the differences between wrongful death and survival action claims.
Comparative Negligence in Wrongful Death Cases
New York is one of several states that have a pure comparative negligence law. A plaintiff can collect damages if they aren’t 100 percent responsible for their accident and injuries, but the percentage of fault they hold reduces their compensation. For example, if you are 20 percent responsible, you can collect 80 percent of your damages. When you file a wrongful death claim, your loved one’s responsibility for the accident, if any, affects your compensation.
How Winter Weather Can Affect Who's Liable in a Wrongful Death
You can file a wrongful death case if winter weather has played a role in your loved one’s death, but you must prove that the accident wouldn’t have occurred without someone else’s negligent or reckless actions or inactions. Property owners and others have a legal duty to follow snow and ice removal laws. Drivers also must make adjustments for the weather. When they fail in that duty, they may be liable for damages.
