New York’s two hundred-yearold wrongful death law

New York’s two hundred-yearold wrongful death law

By Mitchell J. Rich, Esq.

A bill is currently under consideration in the State legislature to update the law regarding wrongful death cases. For the last two hundred years, the law has been that the recovery by an Estate for wrongful death is limited to only financial loss and pain and suffering by the decedent with only a few very limited exceptions. As a result, wrongful death cases for children and retired people who passed away shortly after being injured were extremely limited despite the deep personal loss that effected the surviving family.

As an example, in a recent case, a retired gentleman in his 80’s was on a sidewalk and struck and killed by a vehicle which had lost control and mounted the sidewalk. This unfortunate man died immediately upon impact. He was the primary caregiver for his great- grandchildren while the rest of family were working. Since it was his family, not himself, who suffered the financial loss of having to hire someone to watch the children or leave a job, there was only a very limited claim for financial loss under the current law. Additionally, since that case involved an instantaneous death, there was no viable claim for pain and suffering. As a result, his family had very limited legal recourse against the owner and operator of the car that struck him.

As another example, a seven-year old child was a passenger in a car that was rear ended by a tractor trailer on a highway. This poor child was pronounced dead at the scene and there was no medical evidence that the child was aware of any pain prior to passing away. Again, this family suffered the ultimate loss but had an extremely limited legal recourse against the owner and operator of the tractor trailer.

We can all recognize that there is most likely no greater loss than the death of a child, but this outdated law refuses to accept that. This draconian provision of the law victimizes grief-ridden families a second time after an untimely loss. Our politicians talk about “family values” but allow the law to continue to fail to recognize the loss felt by families who lose children, parents or grandparents who die due to the actions or inactions of other people or companies.

For the last several years, a bill to correct this injustice was passed by the State Assembly but rejected by the State Senate. Due to the change in Senate leadership brought on by the 2018 election, this might be the year that this horrendous situation can be changed. Please urge your State representatives to support this much needed change in the law.