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Slip and Fall Injury Lawyers in New York
Wrongful death involves legal actions that are brought by the surviving family members and/or dependents for damages that are caused in situations in which a person’s death the result of the unlawful conduct of another individual.
Wrongful death cases may arise from construction accidents; death during a supervised activity; medical malpractice; police misconduct; product liability cases involving defective, dangerous products, including occupational exposure to hazardous substances or conditions; and vehicular—automobile, train, truck, or airplane—accidents.
Deaths may also include murder and other criminal behavior and many wrongful death trials follow criminal trials in which similar evidence is used but with a lesser standard of proof.
An individual who is deemed liable for a wrongful death may or may not be convicted of a crime that is associated with that death. One example involves criminal cases of an alleged murder in which the defendant was found not guilty of murder when the prosecution was unable to establish the defendant’s guilt beyond a reasonable doubt.
That same defendant may be found liable for the alleged wrongful death during the civil trial should plaintiffs prove the defendant was responsible by a preponderance evidence.
Who May File a Wrongful Death Lawsuit?
The personal representative of the deceased, who is typically appointed by Surrogate’s Court, may bring a wrongful death action. The representative must prove that the defendant acted negligently and that the negligence caused the deceased person’s death. The representative must also show that there is a surviving spouse, child/children, or other beneficiaries or dependents and that the survivor(s) have suffered financial damage due to the wrongful death.
Two elements of damage that may be recovered in a wrongful death action are economic loss and the deceased’s conscious pain and suffering Survivors may not recover for their pain and suffering, including, for instance, grief.
The Estates Economic Recovery
The estate’s economic recovery includes a variety of items such as the reasonable value of earnings lost between the time of the injury to the time of the death, the cost of medical and/or nursing care prior to the death, funeral expenses, and the cost of support and services.
If the surviving spouse remarries, any potential reward is not reduced. Children of the deceased may recover for loss of parental nurturing, parental guidance, and parental education.
Parker Waichman LLP has extensive experience and success in representing clients in wrongful death cases and continues to offer free legal consultations to individuals with questions about filing a wrongful death lawsuit.
When Does a Wrongful Death Occur?
Each state has its own civil wrongful death statute. This is a set of statutes that establishes each state’s procedures for bringing wrongful death actions. Damage awards from wrongful death actions belong to the estate and may be passed to different parties in accordance with the decedent’s will.
Pecuniary, known as financial, injuries are the main measure of damages in a wrongful death action. Courts interpret such injuries to include loss of support and services, lost of the prospect of an inheritance, medical expenses, and funeral expenses.
Laws generally provide that the damages awarded for a wrongful death will be fair and just compensation for the pecuniary injuries as a result of the decedent’s death. Should distributees of the lawsuit be paid and were responsible for the decedent’s funeral or medical care, they may also recover expenses for those events. Damage awards also include interest from the date of the decedent’s death.
Because the measure of damages is actual pecuniary loss, the decedent’s age, character, condition, earning capacity, life expectancy, health, and intelligence are considered. Also, the distributees’ circumstances are reviewed. Generally, the main consideration involves the decedent’s circumstances at the time of his or her death.
In situations in which the deceased was an adult wage earner with dependents, the major parts of the recovery involve loss of income and loss of parental guidance, as an example. The jury may consider the deceased’s earnings at the time of death, the decedent’s last known earnings, if the decedent was unemployed, and the decedent’s potential future earnings.
While the jury determines the size of the damage award after hearing the evidence, the jury’s determination is not always the final decision. Award size may be adjusted up or down by the court. If the decedent routinely misspent his income, this may decrease the family’s recovery. If the decedent was a poor earner, but that decedent was young, had career potential, and supported a number of children, the award may be greater.
In fact, a jury may award lost earnings even if the decedent was unemployed if he or she had worked in the past and evidence was shown of average earnings when employed. If the plaintiff does not present evidence of the decedent’s average earnings, the court may set aside the jury’s damage award, ordering a new trial.
Home Maker Decendents
Plaintiffs may present expert testimony that establishes the value of the decedent to his or her family. This type of testimony had not previously been admissible when a housewife died; however, that rule has changed.
Today, if the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve income loss; however, increased spending to continue the services she or he provided, or would have provided, had he or she lived will be considered in the award.
Jurors may not understand the monetary value of a housewife’s services; therefore, experts may have to be brought in to assist the jury with this evaluation.
Punitive damages may be awarded in general negligence lawsuits involving serious or malicious wrongdoing. Punitive damages punish the alleged wrongdoer and deter others from behaving in the same manner. Typically, a plaintiff may not recover punitive damages in a wrongful death action; however, statues in some states do allow for this.
In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have typically held punitive damages allowable.
Distributees may be able to recover damages for personal injury to the decedent and are known as “survival actions.” The personal injury action survives the person who suffered the injury and the decedent’s personal representative may bring this type of an action along with the wrongful death action to benefit the decedent’s estate.
In a survival action for a decedent’s conscious pain and suffering, the jury may ask questions to determine the damage amount, including the degree of consciousness; pain severity; and, fear of impending death, as well as the duration of this suffering.
Filing a Wrongful Death Lawsuit
Parker Waichman has years of experience representing clients in wrongful death lawsuits. If you or someone you know is interested in filing a wrongful death lawsuit, please contact one of our experienced wrongful death lawyers today. Our firm offers free, no-obligation case evaluations.
For more information, call 1-800-YOURLAWYER (1-800-968-7529).