New York’s Wrongful Death Law Is Wrongful

stonecherib.jpgOk, imagine this: A speeding car strikes and instantly kills your 3-year-old child as you watch helplessly from a nearby lawn in Seneca County. Turns out the speeding driver was drunk. Your 3-year-old had wandered up to the road as you were distracted by your 2-year-old who was throwing a tantrum. Sure, in hindsight you should have kept a better eye on him, but there is no way a sober driver driving at the speed limit would not have been able to brake in time and avoid running over your son.

Your world is turned upside down, your heart is literally broken, you are devastated. When the shock and horror subside, and the grief that will engulf you forever takes hold, you go to a Central New York wrongful death lawyer. You want justice. You want compensation. You want to make the driver pay. What does he tell you?

If your New York lawyer is both honest and brave, he will tell you the sad truth; your case is worth almost nothing. That’s right, almost nothing. Why? Because New York State’s wrongful death law does not allow compensation for the emotional grief of surviving family members. It allows compensation only for “economic” loss, that is, the loss of economic support the dead victim would have provided, had he not died, to his surviving family members (as well as some incidental expenses such as medical bills, funeral bills). And since your 3-year-old did not support anyone, there is no “value” to your claim.

The facts I described above are very similar to a real case I recently handled. I had the sad duty of telling my clients, the grieving parents of a dead three-year-old, that New York State law did not allow them compensation for their grief. As a father of five myself, that was hard news to break to those poor parents.

Now let’s change the facts. Let’s say that, instead of killing your child, the drunk driver had merely maimed him — caused him to lose a leg. Now what? Now you can sue that driver for big bucks — you are allowed to claim compensation on behalf of your child for a lifetime of suffering and diminished enjoyment of life. Your case is worth millions.

So the drunk driver is much better off if he kills your three-year-old than if he merely maims him. Make sense?

Of course not. All fair-minded people who have examined New York’s wrongful death statute consider it an abomination, one of the most unjust laws on the books.

So why doesn’t New York change it? The answer is simple: The insurance and corporate lobby won’t let them. The New York Insurance Association has been particularly forceful, and has lobbied colossally against any changes in the law that would grant “non-economic”(emotional suffering) damages for the wrongful death of a child.

Nevertheless, since 1995, every year some brave New York legislators have tried to change this unjust law. There is such a Bill recently pending in the New York State Assembly, sponsored by Assemblyman Helene E. Weinstein (Democrat, 41st Assembly District, Brooklyn). The Bill, if made law, would amend New York’s Wrongful Death Statute to harmonize it with the majority of other states’ wrongful death laws by allowing compensation for the “grief and anguish” of surviving family members. The Bill eloquently notes that under the current, harsh law, “families who suffer the loss of a loved one must endure a second blow, when they discover the civil justice system is unable to compensate them for their emotional loss” and that it sadly “prohibits the grief-stricken family from recovering damages for their emotional suffering from the wrongdoer.”

Could this be the year that such a Bill becomes law? Let’s hope so. I would rather not have to try to explain to any more grieving New York parents that under New York law their child, and their grief, is worth nothing!

To learn more about wrongful death cases in New York, go to our main website, practice areas, wrongful death.

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