A guy I’ll call Joe, a construction worker, rolls into my Auburn, New York office in a wheel chair with his three kids, wife and mother in tow. He has come to consult with one of the Central and Syracuse New York personal injury lawyers of Michaels & Smolak. Let’s say Joe fell from 100 feet up when a scaffold collapsed, and landed on his feet. Let’s say an xray view of his knees and ankles show bones that look like granulated sugar. Let’s say he will never be able to walk, much less work, again. Let’s further assume he is only 43 and was supporting not only his wife and 3 kids, but his mother, who lived with them. Who can sue the negligent contractor responsible for the scaffold collapse? Of course Joe can sue, but can any of his family members, too?
When you think about it, all these family members were “injured” when Joe was injured. Joe’s wife now has to care for him. And she’s got to take out the trash herself, mow the lawn, and shovel the snow. Also, her husband is in so much pain he hardly even thinks about sex, so she is deprived of his conjugal love. Can she sue for these losses?
And what about Joe’s three kids? Their dad used to play with them, hold them, and bounce them on his knee. He used to bring home a nice wage and would buy them nice things, and was saving up for college for them. All that is gone. Can they sue?
And what about Joe’s mom? Joe can’t support her at all anymore. Now she has to go live in a State-funded nursing home. Can she sue?
The answers? yes, no and no. Wife can sue, kids can’t, mom can’t. Why? New York personal injury law inherited its main principles from English common law. Traditionally, a matrimonial couple was considered “one person”. The law recognizes that when one is hurt, both are hurt. So the law allows both the injured spouse and the “uninjured” one to sue. The suit by the “uninjured” spouse is called a “derivative” claim, or a “loss of consortium” claim.
But the law does not recognize a “derivative” claim for the kids or mom.
But even though Joe’s kids and mom can’t sue, when you think about it, Joe can, in a way, sue for them. After all, if he recovers his lost wages in Court, he will have the money he needs to continue supporting them as he did before. If the jury does what’s right for Joe, they have also done what’s right for his family.
But even so, New York personal injury law fails to compensate some of those family members’ losses. Under our law, no one can ask the jury to compensate the children’s loss of a knee to bounce on, or of a dad who can run around and throw footballs at them. Joe can ask for compensation for his own heart break in not being able to provide these things to his kids, but the kids’ own emotional loss will forever remain uncompensated under our law.
Just like human beings, laws are not perfect. Maybe that’s because imperfect humans make them. Still, New York personal injury law is pretty good. And every day this Central New York personal injury lawyer is proud to harness the power of that law to help his clients get the compensation they deserve.
Email me at: email@example.com I’d love to hear from you!
Michael G. Bersani, Esq.
Central NY Personal Injury Lawyer Michaels & Smolak, P.C.