Question: What kinds of deaths are most often the subject of wrongful death claims?
Answer: Motor vehicle accidents, medical malpractice, hospital mistakes, consumer product failures, almost any activity of life where responsible action is required.
Question: What law authorizes wrongful death actions in New York State?
Answer:A cause of action for wrongful death in New York State is authorized by the New York State Estates, Powers and Trusts Law, sections 5-4.1 through 5-4.6.
Question: Who can bring suit for wrongful death?
Answer: The "personal representative", duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death.
Question: What is a personal representative?
Answer: A personal representative is a person who has been given authority by the court to administer the estate of a decedent.
Question: Who are "surviving distributees"?
Answer: New York State Estates, Powers and Trusts Law, section 1-2.5 defines distributee as a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution: typically a spouse and children; if neither survives the decedent, then the parents of the decedent, if no spouse, children, or parents, then brothers and sisters.
Question: Is there a time limitation for the initiation of a wrongful death case?
Answer: Sections 5-4.1(1) provides "Such an action must be commenced within two years after the decedent's death".
Comment: Different states have different laws regarding time limitations to bring a suit for wrongful death. Even New York State has circumstances under which the time limitation may differ from two years, for example, ยง5-4.1(2) states "whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative shall have at least one year from the termination of the criminal action... in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining."
Question: What damages are recoverable in a wrongful death action?
Answer: Fair and just compensation for the pecuniary injuries resulting from the decedent's death for the monetary loss suffered by the persons for whose benefit the action is brought. In addition to future earnings lost, other recoverable damages can include the reasonable expenses of medical aid, nursing and attention as a result of the injury causing death and the reasonable funeral expenses of the decedent paid or owed by the distributees.
Question:What is a survival action?
A survival action is a cause of action (legal right to sue) based upon personal injuries sustained by a plaintiff which survives the plaintiff's death. This is completely distinct from a cause of action for wrongful death under the statute, and is customarily brought at the same time as a wrongful death action.
The type of damages that can be recovered in a survival action are different, too. The plaintiff in a survival action may recover damages for the decedent's pain and suffering between the time of initial injury and his or her death. The recovery for conscious pain and suffering is awarded to the decedent's estate, which differs from wrongful death loss of earnings ("pecuniary" damages) which are paid to the surviving distributees of the decedent, for their own present and future loss of support from the decedent.
In short, a wrongful death lawsuit is typically initiated by the immediate family of an individual who dies because of the negligence or wrongful conduct of another person.
Money damages can include loss of future earnings, medical bills, funeral expense, and conscious pain and suffering.
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