Rochester, NY Wrongful Death Lawyer

You likely have many questions if you have recently lost someone you loved due to the negligence of another person or party. Many people are likely telling you about filing a wrongful death lawsuit, but if you’re like most people who have just lost someone they loved, you’re probably not even thinking about these types of things.

However, this is something that you should closely think about because the monetary compensation can greatly help both you and your family to financially recover after your loved one’s death. While this may not be a priority receiving compensation can help to bring you peace of mind. If you’re located in New York and you’re interested in filing a claim after a loved one passes, then you should talk to a professional Rochester, NY wrongful death lawyer. They would be able to answer your questions and help you determine if you have a case.

Call Cellino Law today at (888) 888-8888 to schedule a free consultation with one of our Rochester, NY personal injury lawyers.

What is Defined as Wrongful Death in New York?

The New York state laws indicate that wrongful death is when a person dies due to the negligence of another person or party. There are particular “common law” negligence principles that are used in other types of cases, that are also relevant to wrongful death cases. Basically, once a person or entity is found guilty of negligence due to their failure to act on reasonable care, they will be responsible and held liable for the death of the other party.

There are 5 aspects which make up wrongful death claims according to the New York Estate, Powers and Trust Code:

  1. Death
  2. The defendant was found guilty of wrongful actions
  3. The course of action would have likely been pursued in court by the deceased if they were still alive
  4. Losses were incurred due to the death
  5. There are damages that the estate can recover

In order to have a wrongful death case, the loved ones or family of the person that died, need to show that the other party involved in the accident is guilty of being negligent. They would need to prove the following:

  • The at-fault person actually had a duty of care to the deceased
  • This duty of care was violated
  • Due to the violation of the duty of care, death occurred
  • The family and loved ones of the deceased person have suffered or will suffer economic and non-economic damages due to this death.

To put this into perspective, we will look at a couple of potential grounds for wrongful death:

  • Homicide or other criminal activity
  • Neglect or abuse within a nursing home
  • Car accident resulting in death
  • Medical malpractice, for example, death caused due to errors with medication, surgical mistakes, misdiagnosis, etc.
  • Providing alcohol to an already intoxicated person
  • Malpractice in construction or engineering
  • Defective products that cause death such as automobiles, electronics, etc.

Now, one particular difference to take note of is that the Court of Appeals in New York doesn’t allow for wrongful death cases where an unborn baby or fetus was killed. This particular difference holds for the death of the fetus that was due to wrongful acts or negligence.

Who Can File a Wrongful Death Claim in New York?

The person who is the personal representative of the deceased person’s estate in New York is the person who can file the wrongful death claim. This is quite different from many other states since New York doesn’t allow just any family to file these types of claims unless they are also the personal representative of the deceased’s estate.

Now, once the wrongful death case has been filed, the losses and damages suffered by the heirs, beneficiaries, or devisees can be pursued, in addition to the losses suffered by the estate. In the event that compensation is given, the representative of the deceased’s estate will be given the compensation in trust on behalf of the family members.

What Damages Can Be Recovered From Wrongful Death Claims?

Rochester Wrongful Death Lawyer Infographic

Wrongful death suits exist so that the family of the deceased is given compensation for the various losses that they go through or will have to go through due to the wrongful death of their family member. The common damages that are given in Rochester, New York are:

Economic Damages

  • Hospital and other medical expenses
  • Costs for the funeral as well as cremation or burial
  • Future income that was lost due to the family member dying
  • Reductions of inheritance

Non-Economic Damages

  • The pain and loss of parental guidance if the deceased family member lived until their natural life expectancy age.
  • Typical services that the deceased provided to the family such as emotional support, childcare, home care, etc.

These economic losses will be determined by the typical life expectancy of the deceased and their age at death. It is quite difficult to determine compensation for non-economic damages such as the loss of emotional support, parental figure, etc. There are particular cases where the children of the deceased can claim these damages once they are at the legal age that they can do so. However, these damages are more severe on children that are below the adult/legal age.

There have been a few changes and from 2019, the loved ones of the deceased cannot attempt to get compensation due to emotional distress, pain and suffering, etc. With that said, family members and loved ones can attempt to get damages due to conscious suffering and pain before the person died due to fear of death occurring.

Punitive Damages

It is possible to receive punitive damages in addition to the economic and non-economic damages, depending on the circumstances of the particular case. In most cases, punitive damages are given in the event that the defendant was particularly reckless and engaged in extremely dangerous behavior that resulted in the death of the victim. These punitive damages exist as a punishment and to prevent other people from engaging in these types of dangerous ways.

Contact Cellino Law today to start your wrongful death claim.

Punitive damages are completely legal in New York, however, they are hardly ever successfully claimed. So, this type of damage is not possible to claim for most wrongful death cases. With that said, if you believe that your particular case should be awarded punitive damages, then you definitely need to talk to a wrongful death lawyer so you can find out if it is possible.

Determination of Negligence for Wrongful Death

There are many factors that will have to be proved in order for compensation to be given. Some of these are direct causation, the duty of care and breach of it, actual damages, etc.

What is Duty of Care?

It is essential that it is proved that the defendant actually owed the victim or deceased person a duty of care. This duty of care will change according to the particular case, however, it basically means that the person has a duty to ensure the safety of the other party. It also means that they have the duty to avoid dangerous actions if they could have harmed other persons.

To make this a bit clearer, we will look at a case where a driver of an automobile, hits a pedestrian. It could be argued that the driver owed a duty of care to the pedestrian by carefully and safely driving their car, like any other typical and wise person. Based on this argument, the judge will have to agree or disagree on whether the defendant actually did owe this duty of care or not.

There are many factors that the judge will have to consider such as the current public policy on similar cases, the damages occurred, moral issues, how easily the damages were foreseeable by the defendant, the relation between the actions of the defendant and the death of the victim, etc.

Duty of Care Breaches

After a duty of care is determined, then it will need to be proven that it was breached by the defendant. Based on the example given previously, then it may be shown that the defendant wasn’t paying enough attention while driving which caused them to hit the pedestrian. This is seen as a breach because paying attention while driving is definitely something that any other reasonable or wise driver would do.


It would then need to be proved that this breach of duty caused the victim to be hurt/killed. So, based on the example above, it would need to be shown that the defendant’s vehicle is the vehicle that actually hit the victim and they were not hit by anything else or anyone else’s vehicle. So, if in this particular case, the victim was hit first by another person’s car before the defendant’s vehicle was involved, then they would very likely not be found to be in breach of their duty of care as they did not directly hurt the victim.

If in this particular case, if the victim was already gravely hurt and then the defendant’s car hit them and actually caused them to die, then they will be likely found liable for their death. As you can see, causation is complex and depends heavily on the particular case and situation.


In addition to determining causation and breach of duty, it also has to be proved that damages occurred to the victim. In a wrongful death case where there is both causation and breach of duty, then the damages would be obvious, i.e. the death of the victim.

How to File a Claim For Wrongful Death

Once you are the personal representative of the deceased, then you are fully within your rights to file a wrongful death claim to get compensation. It is critical that you file this claim asap since there is a time limit for you to do so according to New York’s statute of limitations.

A Rochester wrongful eath lawyer filing a claim for a client.

You have up to 2 years from the day that the victim died in order to file a wrongful death claim. If you file your claim after this period, then the chances are high that it would be dismissed and you wouldn’t get any compensation.

How We Help Our Clients

The first thing you should do is determine whether you have a case or not. In the event that the death of your loved one was caused due to the negligence of another person or party, then the victim’s estate does have the right to file a wrongful death claim.

Next, make sure that you get the necessary evidence and carefully preserve it. This will help ensure you don’t get any motions that prove to be problematic for your case. It is essential that you have good evidence which clearly shows that the death of your loved one was caused by the recklessness or negligence of the other party.

Create a claim that clearly shows who the defendant is, the main aspects of your case, and the compensation that you want. Then file your case according to the rules of the New York Court.

Completing the above steps are challenging, especially after you’ve gone through the death of someone you love. As a result, it is best to hire a professional wrongful death attorney who can thoroughly investigate your case and assist you with understanding how the process works. They will also make sure to protect all of your rights as well as gather and preserve the necessary evidence. They can even file the complaint for you and represent you in court as well as settlement negotiations.

Call Our Rochester Wrongful Death Lawyers Today

We truly understand how stressful and traumatizing it is to experience the accidental and wrongful death of someone you love. Our lawyers are extremely experienced and have helped numerous clients to get the compensation they require. We have been very active in Rochester and have counseled many clients there for decades which results in getting the most compensation possible.

So, once you believe that you have a wrongful death case, then be sure to give us a call so that we can provide you with a free consultation. We are a personal injury firm in Rochester, NY and will thoroughly examine your case and the evidence. We will do our utmost to push your case forward so that you get the compensation and justice you rightfully deserve.



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