Do you have a loved one who has passed away as the result of negligence, recklessness, or intentional or wrongful actions? You may have a personal injury claim against the person or the entity that caused the death and can be held legally liable.
At Cellino Law our Tonawanda wrongful death lawyers will provide you with the following services to help you claim compensation for the loss of a loved one:
- Investigate the case
- Determine liability
- Calculate compensation
- File a wrongful death personal injury claim
- Negotiate a settlement
- Represent you in court
Contact our personal injury attorneys today for a free consultation to find out whether you have grounds for a wrongful death suit, who can be held liable, and the amount of compensation that you can claim.
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How is Wrongful Death Defined in New York?
A wrongful death claim is a civil action that is taken against a person or entity whose negligence, recklessness, or wrongful actions caused the death of another person. An entity is defined as any legally recognized institution such as a business, organization, group, or agency. In some cases, a legal entity can be held responsible or liable for the death of a loved one.
There are four elements that need to be proven to meet the requirements for a wrongful death suit:
- The death was caused by the wrongful actions of a person or entity
- The claim arises from a personal injury claim that could have been pursued by the deceased if they had survived
- The deceased must be survived by a person/s who have suffered a loss as a result of their death
- The estate of the deceased must prove damages were suffered and are recoverable
Types of wrongful death suits may include accidental death, malpractice, product liability, and police misconduct.
Who is Qualified to File A Wrongful Death Claim in New York?
The state of New York does not allow the surviving family of the deceased to file a wrongful death claim. Only a representative of the estate of the deceased can file a wrongful death claim. A representative can claim on behalf of a spouse, dependents, parents or other beneficiaries as part of or in addition to damages or losses that were incurred by the estate of the deceased.
The court holds that the representative of the estate is claiming in the interest of the heirs or beneficiaries of the deceased and will place damages that are awarded in trust for the surviving family.
What Types of Damages are Recoverable?
Damages are the financial or other losses that the surviving family has suffered and depend largely on the evidence that is provided in court. Damages for a wrongful death claim may include the following:
- Cost of a funeral, memorial service, cremation, and/or burial of the deceased.
- Medical expenses that were incurred by the deceased from the accident or illness that resulted in their death before they passed away. This can include nursing homes or other costs related to the care of a patient before they passed away.
- Loss of income, wages, and/or benefits that occurred between the final injury or illness and the time of death of the deceased.
- Value that can be attributed to services and support that were provided to the surviving family members by the deceased before death.
- Value that can be attributed to the care, nurturing, and guidance that the deceased would have provided to his or her surviving children.
- Loss of inheritance by the surviving children of the deceased.
- Pain and suffering that was consciously experienced by the deceased as a result of the injury or illness that caused the death.
The state of New York also allows for 9% interest of the total claim that is awarded to form part of the wrongful death claim. Interest is calculated from the date of passing of the deceased and not from the date of the injury or illness that caused the death.
Can Surviving Family File For Punitive Damages In New York?
Punitive damages are only awarded by a court in cases where the actions of the defendant are found to be grossly negligent or outrageously reckless and wrongful in causing a death. These damages are designed as an additional punishment for the defendant in the hopes that it will deter them from ever acting in the same way again. The damages also compensate the estate and therefore the surviving family of the deceased.
Although the representative of the estate may file for punitive damages as part of a wrongful death claim, these damages are rarely awarded by a court.
How Is Negligence Determined In A Wrongful Death Claim In New York?
Wrongful death claims fall under the umbrella of personal injury law. In order to prove liability in a personal injury case, the liable party must be found to have been negligent. Personal injury law uses the following 5 elements to prove negligence in Tonawanda, New York:
- Duty of care where the liable party had a responsibility to provide protection to the injured party to prevent harm.
- Breach of duty of care shows how the liable party was in breach of the duty of care.
- Cause in Fact where it must be shown that the liable party is the responsible party. The court uses this to determine the choices made by the defendant and whether their actions or behavior caused the injury.
- Causation where the breach of duty of care can be shown to have caused the injury, damages or death. In New York, the causation must play a substantial role or be the greatest contributing factor to causing the injury.
- Damages where the actual losses of the injured party need to be established. In New York wrongful death claims, these damages refer more to losses incurred by the deceased and his or her estate.
File Your Claim With Our Tonawanda Wrongful Death Lawyers
Only a representative of the estate can approach the court to file a wrongful death claim in New York. Although it isn’t legally required to have legal representation in order to file the claim, it is highly recommended to hire a lawyer to provide assistance with filing the claim.
The death of a loved one is devastating and is even more so when it has been caused by the wrongful actions of another party. The state of New York provides surviving families a means of compensation for their losses through a personal injury claim that is brought by the estate of the deceased party.
Contact Cellino law today to find out more about the law regarding wrongful death claims in the state of New York and for a free consultation to assess your wrongful death case.