Losing a spouse, family member or relative is a painful experience. What is more painful is if the untimely death was a result of someone’s wrongful or negligent behavior. In such a case, close members of the deceased have the legal right to file a lawsuit for wrongful death. If you are currently facing such an issue, do not go through the challenges of solving it alone. Contact an experienced Irondequoit wrongful death lawyer at Cellino Law, and get help taking legal action against the responsible party.
How Is Wrongful Death Defined in New York?
According to New York state laws, four elements are required to establish a wrongful death claim. These four elements are:
- Death of a person
- The death was caused by the misconduct or negligence of another
- If the person hadn’t died, they could have sued the responsible party and recovered damages
- Losses incurred by a family member as a result of the untimely death
Who Is Qualified to File a Wrongful Death Claim?
A wrongful death claim can be filed by the deceased personal representative with the help of a lawyer. A personal representative of the deceased can be one of the following parties;
- Children of the deceased
- The personal representative for the estate of the deceased
What Types of Damages Are Recoverable?
After filing a wrongful death claim, the plaintiff can be compensated for three types of damages, which are economic damages, non-economic damages, and punitive damages.
Economic damages usually include expenses related to the death and any financial contribution that would have been made by the victim towards survivors. This can include the following:
- Funeral and medical expenses related to the untimely death
- Loss of future earnings that were expected by the victim
- Loss of future benefits such as medical coverage and pension plans.
- The cost of services and goods that would have been provided by the victim
Even though non-economic damages are less tangible than economic damages, they are just as important. Non-economic damages can include the loss of guidance, training, care, advice, and protection that was provided by the deceased.
Since 2019, those who file a lawsuit in New York can’t recover damages for things such as loss of companionship, pain and suffering, or emotional trauma as a result of losing their loved one. However, survivors can try to recover damages for what is known as conscious pain and suffering.
Punitive damages sometimes are not available for cases that involve wrongful death. However, a seasoned attorney at our firm can tell you if your case might qualify.
Can Your Receive Punitive Damages From a Wrongful Death Claim?
Surviving family members can file for punitive damages depending on the cause of death. If the deceased lost his or her life because of another person’s recklessness, then punitive damages can be awarded to punish the defendant and also to discourage a similar act in the future.
How Is Negligence Proved in a Wrongful Death Case?
After filing a wrongful death lawsuit, the plaintiff is required to prove that an act of negligence caused the death of the deceased. Moreover, with the help of a lawyer, the plaintiff is also required to prove that the following four elements:
Duty of Care
The plaintiff’s lawyer is required to show the responsible party had a duty of care. What this means is that the defendant was supposed to keep the other person safe. Another way of putting it is the defendant should have avoided doing something that could cause harm to the victim. Drivers have a duty to protect others on the road by obeying traffic laws, and doctors have a duty to provide patients with a certain standard of care.
Breach Of Duty
Whether the untimely death was a result of reckless driving or some other kind of negligence, the plaintiff must prove to the jury that the defendant’s actions violated their duty of care owed to the deceased. The court will consider various factors to determine whether the accused failed in their duty of care or not. These can include the defendant’s actions at the time of the accident and the police report.
Causation usually involves proving that the decedent’s harm was a result of a breach of duty. The plaintiff must prove that the deceased could have survived or would be alive if the defendant had not breached the duty of care.
Besides proving a breach in the duty of care, the plaintiff also has to prove that the deceased did suffer damages. In a wrongful death case, damages are usually presumed because of obvious reasons such as the injured individual was killed. However, you also need to understand that there must be a breach of duty for damages to be presumed.
How Do You Start a Wrongful Death Claim in Irondequoit, NY
A wrongful death claim can be filed by the deceased personal representative with the help of a wrongful death lawyer. The representative plays the role of the executor and his responsibility is to protect the interest of the real parties. In this case, real parties can be an immediate family member, spouse, distant family members, or parents of the deceased.
Furthermore, the plaintiff is also required to collect personal paperwork such as health records, and other documents that can be used to file the wrongful death lawsuit. The plaintiff is given a deadline of two years to file for a wrongful death lawsuit with the help of a legal representative.
Contact an Irondequoit Wrongful Death Lawyer to File Your Claim
Wrongful death cases are never easy to deal with. That is why you should seek legal assistance from an experienced lawyer who can help you build a strong case against the accused. Contact our personal injury lawyers today and we will review your case before giving legal advice on what to do.
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