I’ve been a practicing lawyer for almost 30 years in New York in the field of personal injury and medical malpractice. Most of the laws that govern my field are fine, although some could be arguably better.
Then, there is the law that governs wrongful death and pecuniary damage awards in New York . . . and there is simply no polite way to put it . . . it sucks. It is an unfair, inequitable law that discriminates and has literally punished thousands of families in New York State. Adding insult to injury, New York is one of the few states in the nation that has yet to update this antiquated law and create legislation that makes sense.
Yet, that law may be about to change. . . but I’m getting ahead of myself. Allow me to first provide you with the horror that is the current law, and then I’ll show you why you should be excited.
The current New York law as it applies to damages in a wrongful death lawsuit
When a family member dies in an accident in New York, there are two types of damages available: the common law cause of action for conscious pain and suffering, which is the same standard for any type of injury caused by negligence; and the second claim for wrongful death.
- PRONG #1 – Conscious pain and suffering pays compensatory damages to the deceased’s family for the pain and suffering endured by the deceased as a result of the accident in question. On its face, this prong seems fair, but if the person was hit by a truck and died instantly, the conscious pain and suffering claim is very limited, making potential damages from Prong #2 all the more important to a surviving family.
- PRONG #2 – Wrongful death. The New York State wrongful death statute (EPTL §5-4.3) allows the deceased’s family to be paid for “pecuniary injuries,” which translates to the deceased’s lost earnings/pension/social security benefits. It also allows for the loss of parental guidance, which literally means the statute puts a value on the advice and personal guidance the parent would have given their children had they remained alive. The parental guidance payout is rarely substantial.
Why today’s wrongful death law is horrible
The reason this law is antiquated and largely discriminatory is because it only awards a family when the breadwinner dies. So, if dad is a 45-year-old doctor earning $400,000 per year, and he dies in an accident, then the family will be potentially compensated to the tune of $8 million if we simplify the math. That seems fair, as if dad continued to work, the family would have gotten that money to live on, pay for college, take vacations, etc.
Now, what happens if a homemaker and mother of four young kids, dies in an accident? She has no earnings and therefore she has no lost income. Her family therefore gets zero. It doesn’t matter that she read bedtime stories to the kids every night, packed lunches, drove the kids to school and to the doctor, and maintained the house, freeing up her husband to be at the office. The law says her life is worthless. Doesn’t that make you feel so proud to be a New Yorker? Yay women’s rights!!!
How is a widowed and emotionally devastated husband and father going to find a way to raise his equally devastated kids, run his household and maintain a full time job, if the law says he can’t get compensated for the loss of his wife and mother of his children?
And it’s not just mom whose life is deemed worthless under the law, it’s also retired people, who no longer earn incomes . . . and kids . . . who haven’t yet entered the workforce.
Imagine that your daughter, who always made you proud and who you felt would someday set the word on fire and make real change, dies in an accident. Then, your lawyer tells you that her life was meaningless in the eyes of the law and the family will get bubkus. Do you have any idea how awful it is when, as the family lawyer, we have to deliver this news to the family? They sob uncontrollably and stare at you like you’re an idiot and never learned the law.
Fingers crossed, change may be coming
But New York may finally be ready to change things up. Last week, the State Senate and State Assembly Judiciary Committees passed a bill, nicknamed the “the grieving families act,” which recognizes that a spouse, child or parent can recover for THEIR anguish, comfort, and companionship when a loved one dies as a result of another person’s negligence, adding another element with substantially large value. That would benefit the families of the lost mother, child and retired.
We are not at the finish line yet, but we are close. The governor now has 10 days to sign or veto this legislation. If he signs the bill, it becomes law; and even if it is vetoed, the bill can still become law if two-thirds of the members of each house vote to override the Governor’s veto. (As a side note, I’d just like to thank Schoolhouse Rock, who provided educational music videos during 1970’s Saturday morning cartoons and, immediately following Scooby Doo, taught me the lesson of how a bill becomes a law, which I have never forgotten, in song called “I’m Just a Bill.”)
Why do I think this bill will pass now? Andrew Cuomo has signed a few bills over the last three years, which were a long time coming. Plus, now he is under a lot of pressure with the sexual harassment claims against him, and he could use some friends. Yes, sadly, that’s when things usually happen in the political arena. In addition, seeing how most states already allow these damages, it just seems like a no-brainer. Fingers crossed. 2020-21 was a mess – it’s time for good news.