Have you lost a loved one due to someone else’s negligence? If so, you might be confused as to what you should do. You may have heard of the term “wrongful death” or someone in your family may have advised you to file a lawsuit to claim compensation for your loss. In fact, thinking about legal matters may be the last thing on the mind of a person who has lost a loved one.
A successful wrongful death claim will not only help you recover damages for the loss you and your family experienced after the loss of the loved one but also offer peace of mind knowing you have the necessary funds to deal with the aftermath of the expected loss of your loved one. If you plan to file this type of claim the first thing you need to do is to consult an experienced Bronx wrongful death lawyer at Cellino Law. A qualified attorney will help answer all the questions you might have about the lawsuit.
For your convenience, the team of Bronx personal injury attorneys at Cellino Law has compiled a comprehensive guide to assist you with the right answers to the questions you might be having about wrongful death lawsuits. You will get a clear idea of what to expect when filing such a case.
How Is Wrongful Death Defined In New York?
A wrongful death case arises when an individual dies as a result of the negligent actions of another person or entity. The “Common Law” negligence principles apply in the State of New York just like other types of cases. In fact, the party responsible is held liable in case it’s proven that the death of the victim was caused due to failure to use reasonable care during the accident. The Estates, Powers, and Trusts Code of New York requires the plaintiff to prove five key elements in order to establish claims for wrongful death:
- Death of the victim
- Wrongful actions from the defendant
- A cause of action that the deceased person may pursue in court if death didn’t occur
- One or more surviving individuals of the deceased person are suffering losses as a direct result of the death of their loved one
- Damages that the estate is able to reasonably recover
The family of the deceased person needs to prove that the at-fault party was acting negligently to have grounds for a wrongful death lawsuit. They need to prove that:
- The at-fault party had a duty of care to act within a reasonable degree of caution when interacting with the victim
- The at-fault party violated this duty of care
- The violation of the duty of care was responsible for the death of the victim
- The death of the loved one resulted in economic and non-economic damages to his/her surviving family
Here are some good examples of possible grounds for wrongful death lawsuits:
- Criminal activity – intentional homicide
- Nursing home neglect and abuse
- Medical malpractice such as surgical errors, misdiagnoses, medical injury, and medication errors
- Construction or engineering malpractice
- Defective products such as vehicles, drugs, and electronics
- Car accident fatalities
- Illegal alcohol service such as serving alcohol to a visibly intoxicated individual
The Court of Appeals holds that New York State doesn’t recognize claims for wrongful death when the fetus is killed before birth – even if the death of the fetus was caused by wrongful acts of another party or individual.
Who Is Eligible To File A Wrongful Death Claim In NY?
In the State of New York, the personal representative of the estate belonging to the deceased individual is responsible for filing a wrongful death case. In fact, NY doesn’t allow a family member of the deceased to file a wrongful death case unlike most other states – unless the family member is also the personal representative of the victim’s estate.
But a wrongful death case could pursue damages for all the losses the deceased individual’s beneficiaries, heirs, or devisees suffered as well as damages for any losses the estate of the deceased individual suffered. When compensation is awarded, the court will treat the estate’s representative as holding the award in trust for the family members of the deceased person – to whom the award belongs.
The Damages That Could Be Recovered By A Wrongful Death Claim
The main purpose of a wrongful death case is to recover damages for economic losses suffered by the victim’s family members as a result of the untimely death of their loved one. Here are some of the most common damages awarded in a wrongful death lawsuit in the Bronx:
Economic damages in a wrongful death claim can cover the following:
- Medical bills
- Lost wages – will be based on what the victim was earning at the time of death and what he or she would have earned in the future
- Funeral, burial, and cremation costs
- Reductions in the amount of inheritance the deceased would have left
Services provided by the victim such as moral training, childcare, and emotional support
The loss of parental guidance the victim would have provided in case he or she reached his/her life’s expectancy
The economic losses will be evaluated based on the age of the victim and his/her beneficiaries. Determining the right amount of compensation for non-economic damages such as the loss of emotional support and parental guidance is one of the most challenging components of a wrongful death case. If the children of the deceased are of legal age, they can claim for these damages. But the process can be much more impactful when the surviving child is younger.
You should note that as of 2019, survivors who file for wrongful death cannot recover damages for emotional trauma, pain, suffering, and the loss of companionship as a result of the loss of the loved one. But it’s possible to recover damages for the conscious pain and suffering experienced due to the fear of the impending demise of the loved one before he or she passes away.
Punitive Damages In A Wrongful Death Case
The court will award punitive damages along with economic and non-economic damages to the surviving family members of the victim based on the circumstances surrounding the death of the victim. Punitive damages are usually awarded in lawsuits where the defendant engaged in reckless behavior that resulted in the death of the victim. Punitive damages are meant to punish the defendant and deter him/her or other members of the public from behaving in such a way in the future.
Although punitive damages are legal in NYC, it’s very rare for an individual to make a successful claim for punitive damages. These damages are not available in a vast majority of wrongful death cases in NY. But if you believe that you have grounds for a wrongful death case, you should immediately consult with the wrongful death lawyers at Cellino Law to assist you to get the maximum amount of compensation that you are entitled to.
How Is Negligence Determined In A Wrongful Death Case?
The plaintiff in a wrongful death case needs to prove certain factors to become eligible for maximum compensation. The factors involved are a duty of care, breach of duty, direct causation, and damages.
Duty Of Care
The plaintiff needs to prove that the defendant owed a duty of care to the victim. But the exact definition of “duty of care” will vary according to the facts that surround each case. The duty should help keep the other person safe and avoid doing anything that could potentially harm the other person. For example, in a driving-related lawsuit where a driver strikes a pedestrian, the plaintiff may argue that the defendant owed the victim a duty of care to operate the vehicle as safely as possible (just like any reasonable prudent individual would do). The judge should actually decide if the defendant owed a duty of care.
The judge has to consider so many factors before making such a decision including the public policy consequences of finding duty in similar cases, how the damages occurred, how foreseeable the harm was, the defendant’s moral blame, and how the defendant’s actions and harm are related to each other.
Breach Of Duty Of Care
Once the duty of care is proven to exist in a wrongful death case, the plaintiff should demonstrate that the defendant breached his/her duty. Taking the above example, the plaintiff should provide evidence to show that the defendant was not paying enough attention to the road when the accident was caused. A prudent driver should pay attention when he or she is behind the steering wheel. That way the drive has breached the duty of care.
The plaintiff should now prove that the breach of duty by the defendant led to the victim’s demise or harm. The plaintiff needs to prove that the defendant’s car struck the victim and cause his/her death. In case there was another vehicle that struck and injured the victim before the defendant’s vehicle got involved in the accident, the court may not find the defendant’s breach of duty directly caused the death of the victim.
In case the breach of duty of the defendant caused the accident that led to the death of the victim, the court will find the defendant liable for causing harm. The issues of causation can be quite complex to navigate based on the facts surrounding the actual case.
The plaintiff also has to demonstrate that the victim actually suffered damages to prove the wrongful death case. When both the breach of duty and causation exist in a wrongful death case, damages are an obvious reason since the victim was killed.
How To File A Wrongful Death Case In New York?
The personal representative of the deceased’s estate has the right to seek compensation for the loss of their loved one by filing a wrongful death lawsuit. You need to file the case as soon as possible to avoid the time limit for pursuing a wrongful death claim stipulated by New York’s statute of limitations. In NY, a wrongful death case should be filed within two years from the date of the death of the victim. If you don’t take action before the statute expires, your case will be dismissed by courts and your right to compensation might be lost in the process.
If the negligent actions of another individual or party caused the death of your loved one, the estate of the deceased should have grounds to file a wrongful death case in NY. You should find out if you actually have a case by consulting with a professional legal firm in the Bronx, NY, such as Cellino Law.
You also need to preserve any available evidence in order to prevent motions to dismiss from hearing your case. Get some compelling evidence to demonstrate how the negligent act of another person caused the untimely death of your loved one. Prepare a complaint that includes the identity of the defendant, key elements of the lawsuit, and the compensation you plan to seek. The last step is to file the complaint in accordance with the NY court rules.
The process of filing a wrongful death lawsuit can be quite difficult. An experienced wrongful death attorney can help investigate whether you have an actual case and help you understand how the entire process works. The lawyer will make sure the relevant evidence is collected and preserved. They will file the case on your behalf and represent you during the trial.
Contact A Qualified Bronx Wrongful Death Lawyer Today!
Our experienced legal team knows the upheavals that come following the loss of your loved one. We have helped countless clients survive such upheavals and get the compensation they deserve. We have decades of experience handling wrongful death claims.
If you think you have enough grounds for a wrongful death case in NY, call us today to schedule your free consultation with one of our top wrongful death attorneys. We will analyze the circumstances surrounding the death of your loved one and make arrangements to collect and preserve evidence to file your wrongful death lawsuit and get the justice and compensation you and your family deserve.
WE CAN HELP
CALL US NOWFree Case Review
FREE CASE REVIEW
- Thank you for your time, effort, and hard work on my case. I appreciate your expertise and compassion. I never experienced what I went through and I would have been completely lost without you.
- This is to express our gratitude to you and your team in helping us and Stephanie navigate through the legal process following her car accident. We are very satisfied with the outcome and grateful for your hard work and attention to details. We fell confident that with this compensation, Stephanie will be able to move forward with her studies and her life with the ability to care for some of her health needs resulting from the injuries sustained following her car accident. Thank you very much and may God continue to bless your efforts.
Jose & Rose
- I am writing to let you know what an outstanding job George Gridelli did for me in my personal injury lawsuit. His professionalism and expertise were evident at our first metting and he and his paralegal Diane D'Andrea took care of me as if I was a friend and not merely a client. They both went above and beyond for me in so many ways that it would be too numerous to list and I am grateful to have had such an exemplary team represent me. When working with George and watching him in court he personified to me what a lawyer is supposed to be - an honest, extremely compentent man who helped guide me through the legal system. I could not have obtained better representation anywhere else at any price. To me that says a lot abut you and your firm's integrity. Thank you again for representing me and for having such stellar individuals working for you! I will continue to recommend your firm.
- Cellino Law is an amazing firm with a great team. I worked with Greg Pajak and his assistant, Tracey Falconer. I cannot express enough how dedicated they are. The personal attention I received was excellent; they were always available to help with questions and concerns and put me at ease in the unknown territory I found myself in. I highly recommend them to anyone needing representation. A huge thank you to them for all they accomplished for me!
- Cellino Law was a great company to work with. From the beginning they came out and met with my uncle and myself and assured us that everything would be taken care of from beginning to end our lawyer state and constant contact with us to make sure that everything would go smoothly and it did. I would definitely recommend anybody to go to Cellino Law for whatever help they need. And specifically please ask for the lawyer that we had Mr. Alan Silverstein. He was amazing and his staff was always attentive. Please go with them for your next law needs.
- My wife and I would like to take this opportunity to thank you for a fantastic job as our attorney. We could not have been more pleased with the work you and your team has done on this case. This past four years or so has been such a roller coaster for our family. We are very pleased and grateful with the result. We have made a good choice by choosing you. Thank you.