If you have lost a family member or a loved one due to another person’s negligence, you might be wondering what you should do to compensate for the loss. You may have already come across the term “wrongful death,” or someone may have advised you to claim compensation for your loss. But legal matters could be the last thing on the mind of a person who has lost a family member recently.
A wrongful death claim will help you receive compensation for the damages you and your family lost due to the untimely demise of your loved one as well as provide peace of mind because you have funds to handle the aftermath of the untimely death of your family member. If you are planning to file a wrongful death lawsuit in New York, you have come to the right place. Cellino Law has a qualified and experienced Queens wrongful death lawyers to help answer all of your questions and concerns about a wrongful death case in NY.
The experienced team of Queens personal injury lawyers at Cellino Law has compiled a guide that helps answer some of the questions that you may have about a personal injury lawsuit. This guide will give you a good idea of what you should expect when filing a wrongful death lawsuit.
How Does the State of New York Define Wrongful Death?
The State of New York defines wrongful death when an individual dies as a result of negligent actions caused by another individual or entity. Common law negligence principles will be applied in a wrongful death case just like with other kinds of cases. The individual or party responsible for the death of your loved one is held liable if you can prove that the demise of your loved one was caused by failure to administer reasonable care to prevent the accident from occurring.
The Estates, Powers & Trusts Code of New York requires the plaintiff to prove 5 elements to establish a wrongful death case and claim necessary compensation for his/her loss:
- Wrongful or negligent actions of the defendant
- A cause of action that your loved one may pursue in court if the death didn’t occur
- Family members who are suffering losses as a result of the death of the victim
- Damages that could be reasonably recovered by the estate
The family of the deceased needs to prove that the defendant acted negligently to build a successful wrongful death case. The plaintiff needs to prove that:
- The defendant had a duty of care to act within a prudent degree of caution when performing the potentially dangerous actions to the victim
- The defendant had violated the duty of care
- The violation of the particular duty of care was responsible for the death of the victim
- The death of your loved one caused economic, non-economic, or both kinds of damages to his/her immediate family
Here are possible grounds for a successful wrongful death lawsuit:
- Intentional homicide and similar criminal activities
- Nursing home abuse and neglect
- Medical malpractice – medication errors, medical injury, misdiagnoses, and surgical errors
- Vehicle accident fatalities
- Illegal alcohol activities such as serving alcoholic beverages to a visibly intoxicated individual
- Engineering/construction malpractice
- Defective products like vehicles, electronics, and drugs
Please note that the NY Court of Appeal holds that the state doesn’t recognize lawsuits for wrongful death in instances where a fetus is destroyed or killed before birth. The law applies even if the death of the fetus is caused by the negligent actions of another person or entity.
Who Could File a Wrongful Death Claim in NY?
The representative of the estate belonging to the victim is allowed to file a wrongful death lawsuit in New York. A family member of the deceased cannot file a wrongful death case in New York, unlike most other states. But if the family member is also the representative of the estate of the victim, he or she is eligible to file the case.
Filing a personal injury lawsuit will help recover damages on behalf of the deceased’s heirs, beneficiaries, and devisees suffered – along with the damages for losses suffered by the deceased’s estate. The estate’s representative will be held liable by the court to hold the award in trust for the family members of the victim – to whom the award actually belongs.
What Are the Damages You Can Recover From a Wrongful Death Lawsuit?
A wrongful death lawsuit will compensate the deceased family members for any economic losses they have suffered due to the untimely demise of the loved one. Common damages awarded in a wrongful death lawsuit in Queens, NY, include:
- Medical bills
- Lost wages
- Funeral and burial costs
- Services provided by the deceased person such as childcare, emotional support, and moral training
- The loss of parental guidance and consortium the victim would have provided if not for the untimely death
All economic losses are calculated based on the age and life expectancy of the deceased and his/her beneficiaries. Determining the right amount of compensation for emotional support and parental guidance is one of the most difficult tasks of wrongful death. Most of the time, these damages will be claimed by the children of the deceased person – provided they are of legal age. But the process becomes more difficult when the surviving child is younger.
Please note that as of 2019, surviving family members of a wrongful death lawsuit are not eligible to claim for emotional trauma, suffering, pain, and loss of companionship. But one could recover damages for the conscious suffering and pain experienced due to the fear of the impending demise of the loved one before he or she passes away.
Are You Eligible to Receive Punitive Damages in a Wrongful Death Claim?
The court may or may not award punitive damages based on the circumstances surrounding the accident. If the defendant has engaged in dangerous and reckless behavior to cause the death of the victim, punitive damages will be awarded to the surviving family members of the deceased. In fact, punitive damages will punish the defendant and deter other people from such behaviors in the future.
Even though punitive damages are legal in New York, it’s rare for an individual to successfully claim such damages. They are not available for a majority of wrongful death lawsuits. If you believe that you have enough grounds for a wrongful death case in NY, you should consult with the professional wrongful death lawyers at Cellino Law to help find out how much compensation you are entitled to.
How Is Negligence Determined in a Wrongful Death Case in New York?
The plaintiff of a wrongful death lawsuit in New York should prove certain factors to become eligible for full compensation. Duty of care, breach of duty, direct causation, and damages are these factors.
Duty of Care
The plaintiff should prove that the defendant owed the victim a duty of care. The definition of duty of care may vary according to the facts surrounding your case. The defendant should avoid doing anything that could potentially harm the other individual. For example, in a wrongful death lawsuit where a motorist has struck a pedestrian, the plaintiff is in a position to argue that the responsible party owed the victim a duty of care to operate the vehicle as safely as possible. The judge will determine if the defendant owed the victim a duty of care.
The judge has to consider so many factors before making a decision – such as the public policy consequences of finding duty in similar lawsuits and how foreseeable the harm was. The judge should also consider the defendant’s moral blame, and how the defendant’s actions are related to the death of the victim.
Breach of Duty of Care
Once the duty of care is proven, the plaintiff should prove that the defendant breached this duty. In fact, the plaintiff should prove that the defendant was not paying attention to the road when the accident occurred. All prudent drivers should pay attention to the road when driving. Not paying attention means breaching the duty of care.
The plaintiff needs to further prove that the breach of duty resulted in the death of the victim. The plaintiff should prove that the defendant’s vehicle struck the victim and caused his/her death. If there was another car that struck the victim before the defendant’s car was involved in the accident, the court may not find the defendant to breach the duty of care.
In case the victim was seriously injured and the breach of duty of the defendant caused the accident that led to the death of the victim, the court may find the defendant responsible for causing harm. The issue of causation is quite complex to determine depending on the facts surrounding the accident.
The plaintiff also should prove that the victim actually suffered damages. When the breach of duty and causation exists in a wrongful death case, the damages are naturally proven because the victim was killed in the accident.
How to File a Claim for Wrongful Death in New York
The representative of the estate of the victim has the right to file a wrongful death case and seek compensation for the accident. But you need to file the lawsuit as soon as possible to avoid the time limit that restricts the pursuit of a wrongful death case in New York.
New York’s Statute of Limitations states that a wrongful death case should be filed within two years from the date of the death of the victim. Failure to do so means having your case dismissed by the court. You won’t be able to claim for compensation if this happens.
We encourage our clients to do the following:
First, you need to find out if you actually have a case. When the negligent actions of another individual have caused the death of your loved one, the representative of the deceased’s estate has grounds to file a case and seek compensation. You need to preserve any evidence that might help to prove your case. Get some compelling evidence that shows the recklessness of the defendant. Make a complaint with the identity of the defendant, key components of the case, and the amount of compensation you seek. File the complaint according to the rules of New York courts.
You may not be able to undertake all these steps when you have lost a loved one. That’s where an experienced wrongful death lawyer from Cellino Law can assist you. We will investigate if you have a case and let you know how the wrongful death claims process works. Our lawyers will make sure the relevant evidence is collected and preserved. We will file the complaint on your behalf and represent you during the trial.
Contact the Queens Wrongful Death Lawyers at Cellino Law Right Now!
At Cellino Law, we know how sad it is to lose a loved one. The upheavals that come from losing a loved one can be quite difficult to deal with and overwhelming. In fact, our experienced team of wrongful death lawyers has helped thousands of clients in the region to survive such upheavals in the past. Our legal team has been counseling clients throughout New York for many decades. In fact, we have recovered the maximum compensation available for these victims’ families. That is why you need to trust us with your wrongful death lawsuit in Queens.
If you think that you may have grounds for a wrongful death lawsuit you should immediately get in touch with our professional and experienced Queens personal injury firm. We will analyze all the circumstances that surround the death of the victim & make arrangements to collect and preserve the available evidence. Our experienced team of wrongful death lawyers will start pursuing all responsible parties to get you the compensation and justice that you and your family rightfully deserve.
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