Pre-Death Terror Claims Can Be Worth A Lot In New York Wrongful Death Cases

New York, unlike many other States, does not allow the family of a wrongful death victim to recover for emotional grief. All they can really recover is “economic loss” (medical and funeral bills, loss of financial support, etc.) and compensation for the decedent’s “conscious pain and suffering”. In many cases, however, the death is so quick there is no real “pain and suffering”, only a short period of fear or anxiety about the impending death.

No matter how short, however, any New York personal injury lawyer worth his or her salt won’t underestimate the value of pre-death terror compensation. In terms of dollar-per-second of suffering, no claim is worth more. Why? Because the jury wants to do something for the family and, if the death came on quickly, there is often no other way to compensate the family.

For example, let’s say your loved one was hit head on my a negligent truck driver who crossed over into her lane. The force of the collision instantly killed her. The jury thus won’t be able to give you – the family – anything for her “pain and suffering” after the collision. But it is pretty obvious that, at least for a few seconds before impact, your loved one “saw death coming” and was probably very fearful of what was about to transpire. In New York, those few seconds of anguish are compensable as “pre-impact terror”. Most juries will make those few seconds of anguish very expensive for the negligent truck driver’s insurance.

This is true not only for collision cases, but for any wrongful death case in which the victim had some moments to fear death. When there is no other pain and suffering provable, juries tend to be very generous with this kind of claim. They want to give the family something. Since the law does not allow for much else in New York, this is a good way for them to do it.

For example, in Lee v New York Hosp Queens, 35 Misc.3d 1225 (Queens Co. 2012) a medical malpractice victim suffocated and choked to death during intubation while fully conscious over the course of 12 minutes. The jury awarded the family $5,000,000 for that 12 minutes! (Note: the Court later lowered it to $3,750,000).

In Rivera v. City of New York (80 AD3d 595 [2nd Dept 2011] ) an asthmatic 10-year-old decedent died from a tension pneumothorax as a result of four hours of several intubations performed without administering pain medication or paralytics. The jury’s verdict awarding his family $3,500,000 was upheld on appeal.

In Hackert v First Alert, Inc.,006 WL 2335230 (NDNY 2006) two family members died in a house fire, one suffering for 3 minutes, the other for 6 minutes, before dying of smoke inhalation and severe burns. Their body positions indicated they had tried to escape. The jury awarded the families $3 million each (although the appellate court reduced the amounts to $1 million for one, and $2 million for the other).

In Maracallo v. Bd of Education, 2 Misc.3d 703 (Bronx Co. Sup Ct 2003) a 14-year old drown in a wave pool. The jury awarded her family $6,000,000 for six minutes of conscious pain and suffering (drowning), which was reduced by the trial court to $2,000,000.

Fellow New York wrongful death case lawyers: Never underestimate the compensation value of pre-death terror!

Keep safe!

Mike Bersani
Email me at: I’d love to hear from you!

Michael G. Bersani, Esq. Syracuse & Central NY Wrongful Death Lawyers
Michaels Bersani Kalabanka


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