Death is one of the most devastating things that you can ever experience. One minute you are enjoying life with your loved one, and the next, they are no more. You will never see them, hear their infectious laughter, or hear their voices when they talk. This can be quite stressful. The situation is even worse if it was a wrongful death caused by someone else’s reckless actions. If your loved one passed away due to someone else’s negligence, you are entitled to compensation.
If you are in New York Cellino Law is the best option for you. Our Clay wrongful death lawyers have years of experience representing the survivors of wrongful death victims and will help you get the justice you deserve. We understand that nothing can ever bring them back, but we will fight hard to ensure that you get the maximum compensation for it. Contact us today at (800) 555-5555 and schedule a free and no-obligation consultation with our personal injury attorneys.
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How Is Wrongful Death Defined In New York?
In New York, wrongful death is a lawsuit that arises from an individual’s demise due to the reckless or negligent actions of another. It can arise from various incidents such as a vehicle accident, medical malpractice, construction accident, and product liability involving defective products, among others. In New York, there are five elements that the representative must prove in court for it to qualify as a wrongful death case. They include:
- Death occurred.
- The defendant acted negligently.
- The negligence caused the deceased’s death.
- There are survivors left behind, such as children, spouses, or parents.
- The survivors have suffered damages as a result of the death.
Who Is Qualified To File A Wrongful Death Claim In New York?
The personal representative of the deceased person’s estate is charged with the responsibility of filing a wrongful death claim in New York. Unlike other states, New York does not allow family members to bring a wrongful death claim to court unless the family member is also a personal representative of the deceased’s estate. The state considers a wrongful death a direct injury to the victim, hence requiring personal action.
Since the victim is dead and cannot file the claim themselves, a personal representative should file the claim on their behalf. The personal representative is usually chosen by the individual when drawing up their will for the estate. However, if there was no will at the time of their death, the court will appoint a personal representative to file the claim. This can be a family member or someone with personal interests in the estate.
What Types Of Damages Are Recoverable?
Damages awarded in Clay, New York, wrongful death cases depend on the case’s specific facts. They include:
These are intended to compensate the victim’s surviving family members for the financial losses suffered due to the death of their loved one. They include the medical expenses incurred to treat the victim, funeral expenses, loss of inheritance, lost wages that the victim was earning, and those they would have made in the future, and property damage.
These are the intangible losses incurred as a result of the wrongful death of your loved one. They include loss of parental care for the children, pain and suffering suffered by the deceased due to their final injury, and loss of companionship. However, as of 2019, survivors of wrongful death victims are not allowed to recover damages for the pain and emotional trauma experienced after their loved one’s death. They can recover damages for the pain and suffering that the victim experienced before passing away, but not their own pain.
In cases where the defendant’s actions are deemed outrageous, punitive damages will be awarded to punish the defendant and deter others from acting similarly.
Does A New York Wrongful Death Claim Cover Punitive Damages?
Yes, the surviving family members can file for punitive damages, but they are rare. They will also depend on the details of the specific case. Here, your Cellino law wrongful death attorney will guide you on the way forward and if your case qualifies for punitive damages.
How Is Negligence Proved In A Wrongful Death Case?
The plaintiff must prove negligence by the below four elements. They include:
Here, the defendant must have owed the decedent a duty of care. This means that they had an obligation to keep the victim safe or refrain from causing them harm. The judge and not the jury will decide if the defendant owed a duty of care.
Breach Of Care.
The plaintiff must provide evidence that the defendant breached that duty if it is determined to exist. They need to convince the jury that their facts are more than 50% likely to be true.
The plaintiff must also prove that they suffered damages due to the wrongful death of their loved one. Here, the damages are that the person was killed, among others.
Here, the plaintiff must prove that the defendant’s actions caused the decedent’s harm and not other reasons.
How Do You File A Wrongful Death Claim In New York?
If you are a survivor of your loved one’s wrongful death, you are entitled to compensation. You should:
- Document your claim.
- Start the probate process of the deceased’s estate so that a personal representative is appointed.
Contact a wrongful death attorney at Cellino law firm. The statute of limitations in New York is two years from the date of death, hence do not waste time contacting a lawyer. Doing so can lead to a dismissal of your case.
What Is The Difference Between A Wrongful Death Claim And An Estate Claim?
Wrongful death laws allow the estate to bring the lawsuit in the first place and start the legal procedure before bringing a wrongful death lawsuit. They enable the state to be awarded damages for the beneficiaries of the victim. In estate claims, the compensation is dispersed through the deceased person’s estate rather than directly to the surviving family, as in with wrongful death claims. Also, the executor of the deceased estate is tasked to file a wrongful death lawsuit, unlike in the other where the spouse or parents can file, as long as they are the legally recognized personal representatives.
Schedule a Free Consultation With Our Clay Wrongful Death Lawyers
Death is inevitable and cannot be avoided. However, wrongful death caused by someone else’s recklessness should be compensated. Here at Cellino law, our experienced attorneys will ensure that you and your family get all the compensation you deserve. We will help you navigate this gruesome process. Contact us today!