If you or someone you know has been killed due to the negligence of another, you need to immediately consult a wrongful death lawyer in New York, NY. Wrongful death under Estates, Powers, and Trusts Law (EPTL) § 5-4.1 is the death of a person due to the wrongful act, neglect or default of another. Examples of wrongful death are deaths due to car accidents, workplace accidents, and medical malpractice, to name a few. There are statutory time limitations to file an action based on wrongful death. Once this period has passed, you cannot file a claim anymore. For this reason, immediate consultation with a wrongful death lawyer in New York, NY should be undertaken upon the death of the injured person.
What to prove in a wrongful death lawsuit
Wrongful death compensates the surviving legal heirs for the economic losses they suffered due to the death of the decedent. A wrongful death claim, in order to be successful, must prove: (a) the defendant had a duty; (b) the defendant breached that duty; (c) the defendant’s breach caused the death of the decedent; and (d) the legal heirs of the decedent suffered economic loss due to decedent’s death. For example, in a car accident where a drunk driver struck a crossing pedestrian, the defendant, a drunk driver, had a legal duty not to drink and drive. Defendant breached that duty by drinking and driving. This breach caused the death of the pedestrian crossing the street. As a result of the pedestrian’s death, his spouse and minor children incurred medical expenses, funeral expenses, the loss of support of their husband and father for the remaining years of his life.
In a workplace accident, for example, a painter was required to paint the high ceiling of a building lobby. In performing his task, the painter needed a sturdy ladder. The ladder provided by the employer was defective, and the worker fell while painting the ceiling, resulting to the painter’s death. In this case, the employer had a duty to provide safe equipment for his employees. The employer breached this duty when he provided the painter with a defective ladder. This breach led to the painter’s death. The painter’s family members suffered economic losses due to the painter’s death. All these elements of wrongful death must be proven in trial in order to be compensated for damages.
Most wrongful death cases, however, are settled by the insurance companies to avoid further legal expenses and higher awards of jury verdicts.
Two aspects of wrongful death
The cause of action of wrongful death only compensates the family for the economic loss suffered. However, it does not compensate the decedent in case he experienced conscious pain and suffering prior to death.
Suppose in the example of the drunk driver car accident above, the pedestrian did not die. He could have then filed a case for negligence against the drunk driver and testified as to the pain and suffering he experienced, aside from the medical costs incurred, which would have been the basis of his damages. Since wrongful death does not compensate this pain and suffering experienced by the decedent but only the economic loss suffered by the decedent’s family, New York courts have allowed a related cause of action in cases of wrongful death: conscious pain and suffering.
Going back to the same example of the drunk driver car accident above, suppose that the pedestrian did not die on impact, but was heard screaming in pain upon impact of the car, was brought to the hospital (where the nearest hospital was an hour away), and only after staying in the hospital for six hours did the pedestrian die. In this case, aside from the economic losses of the family, the decedent also experienced pain and suffering prior to death. The wrongful accident lawyer in New York, NY would then file two causes of action against the drunk driver: conscious pain and suffering and wrongful death. The conscious pain and suffering action is akin to a personal injury claim.
Statutory period of limitations
Under EPTL § 5-4.1, the period to file a claim for wrongful death is two years from decedent’s death. Any claim filed beyond this period will not be entertained by the court. A claim for conscious pain and suffering, since it is akin to a personal injury claim, can be filed within 3 years from date of accident. However, if the case is against the municipality, town, or district, a notice of claim must be filed within 90 days from the time a personal representative is appointed in the estate. In all cases of wrongful death, the case must be filed by the estate’s personal representative, and not just any family member. For this reason, an estate must first be opened for the appointment of a representative (executor or administrator) in order to file a wrongful death action or a notice of claim.
Suppose in the car accident example above, the driver was not drunk. Instead, the pedestrian was hit because there was no traffic light nor ample lighting in the area. The town knew that there was a need of a traffic light and lighting in the pedestrian crossing because there were twenty previous cases of accidents in the same exact area in the past three (3) months. Yet, the town did nothing about it. Your wrongful death lawyer in New York, NY would then file a notice of claim with the municipality within 90 days from appointment of the estate’s personal representative. The notice of claim must be filed by a court-appointed executor or administrator and not just any family member. For this reason, prior to filing the claim with the municipality, the wrongful death lawyer in New York, NY should first file a petition for probate or issuance of letters of administration in order for a personal representative of the estate to be appointed, even for the sole purpose of filing a wrongful death case.
Finding an attorney near you
Wrongful death and conscious pain and suffering cases are generally negligence and personal injury cases. Some lawyers accept these cases on contingency based on the success of the case – which means the lawyer will get a portion of the recovered amount. Initial consultations are almost always free. For this reason, there should be no barrier in litigating wrongful death claims.
If you have suffered the loss of a loved one due to the negligence of another, you need to immediately consult a wrongful death lawyer in New York, NY. The wrongful death lawyer will guide you through the process and represent you zealously in order to ensure you get the right compensation for the losses you have suffered. He will tell you whether the settlement offer should be accepted or not. In case you need assistance, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.