Nothing in the world can compare to losing a loved one. This is especially worse if it was a case of wrongful death. Dealing with the tragedy can be quite traumatic, especially if someone else’s negligent actions caused it. As the surviving family, you may be left with prospective inheritance, loss of financial support, and even have to cover funeral expenses, which can be quite expensive.
Here is where Cellino Law comes in. Our Amherst wrongful death lawyers will offer you the help you need and ensure that the perpetrators face justice. If you are in New York and have lost a loved one due to the negligent actions of someone else, contact us. Our personal injury lawyers will do all we can to get you the compensation you deserve.
How Is Wrongful Death Defined In New York?
In the state of New York, four elements establish a wrongful death claim. They include:
- It should be caused by the defendant’s wrongful conduct.
- It should lead to a cause of action that the deceased could have pursued if the death had not occurred.
- There should be one or more survivors due to the death of the victim.
- There should be damages that the estate can recover.
However, it should be noted that in New York when a child dies in the womb, even if it was a result of another person’s wrongful act, it will not be recognized as a wrongful death claim.
Who Is Qualified To File A Wrongful Death Claim In New York?
Immediate family members can file a wrongful death claim after the death of their loved one. These include children, spouses, and parents, depending on who survives the deceased person. If the children are under 18, they may call for a guardian ad item to protect their interests. The relative who brings the case to the court must be appointed as the deceased’s estate’s personal representative. If damages are awarded, the personal representative will hold the damages award in trust as expected by the court.
What Types Of Damages Are Recoverable?
The damages awarded in a wrongful death claim depend on the case as each of them is different. They include:
Economic
These are the financial losses incurred as a result of the death of your loved one. They include funeral and burial expenses, past medical and health care expenses related to their final injury and lost wages. It also has a loss of inheritance suffered by the surviving children and financial support to the deceased’s family members.
Non-Economic
These are the intangible but real losses suffered by the surviving family members. They include loss of the deceased’s companionship, pain and suffering before death, mental anguish such as pre-impact terror just before their death, and loss of parental support. It should be noted that in wrongful death cases, the surviving family members cannot make claims of the emotional pain and suffering that they have personally undergone due to the death of their loved one.
They can only claim the pain that their loved one experienced before their death, but not the trauma that they have suffered as a result. Also, there is no cap on the limits on pain and suffering damages to ensure that the family is not denied the compensation they deserve.
Punitive
Punitive damages are legal in New York but are quite rare. The judge usually awards these to punish the wrongdoer for their negligent actions. Your wrongful death attorney will advise you if you believe you are entitled to punitive damages.
Can The Surviving Family File For Punitive Damages?
Yes, the surviving family members can file for punitive damages. However, they are rare and depend on the details of each case. Here, it must be proven that the defendant was intentionally malicious to justify the punitive damages.
How Is Negligence Proved In A Wrongful Death Case?
When filing a wrongful death claim in Amherst, New York, you must prove the following four elements of negligence:
Duty
The plaintiff needs to show the court that the defendant owed them a duty of care in the situation.
Breach
The next step is for the plaintiff to prove that the defendant breached their duty of care that they owed them.
Damage
It must be proven that the breach of duty of care resulted in the death of your loved one.
Causation
The plaintiff must show that the death resulted due to the negligent actions of the defendant.
How Do You Start A Wrongful Death Claim In New York?
Before filing a wrongful death claim in New York, there first needs to be the victim’s death. You must also prove that the defendant’s negligence caused it and not any other reason. You also need to know the statute of limitations for filing a claim in Amherst, New York, which is two years from the date of the decedent’s death.
Once you know all this, you need to contact a wrongful death attorney with Cellino Law. We will start the claim process by ensuring that it is filed within the stipulated guidelines. We will also do case preparation and gather all the evidence needed to prove your claim.
What Is The Difference Between A Wrongful Death Claim And An Estate Claim?
Both wrongful death and estate claims originate from the same event; the wrongful death of your loved one. They are also both governed by the law. The main difference between the two is who brings the claim and the damages included. The wrongful death action is usually filed by the surviving family members, while the estate’s representative files an estate claim.
In the estate claims, the estate will be awarded damages incurred from the moment of injury until the time of death. The damages will be paid to the victim’s estate and the estate’s heirs. This includes the deceased’s pain and suffering and lost earnings until they passed on. As for wrongful death claims, the damages are awarded to the beneficiaries of the deceased. The personal representative can seek compensation for loss of income, parental care for the children, and companionship for the spouse.
File your Claim With Our Amherst Wrongful Death Lawyers
If your loved one has suffered a tragic death due to someone else’s negligent actions, you are entitled to compensation. We understand that we can never replace them, but we will work hard and fight for justice and compensation for the damages incurred. We understand the complexity of the situation and will be there every step of the way. Contact us today!