People who have lost loved ones due to the negligence of others are often surprised to learn that New York wrongful death law does not permit recovery for their grief. Damages for wrongful death are limited to two basic elements; economic damages to those dependent upon the deceased person, and the claim for the pain and suffering of the victim, which survives the death. In proper cases there may also be damages available to surviving children for loss of parental guidance, and damages to those in the “zone of danger" of an accident; for example if a family member is in a car accident, death of a close relative in the car may permit a claim on behalf of the survivor for emotional damage, even if the survivor is not physically injured.
Under the law of New York, a wrongful death case must be brought by the personal representative of the deceased person, who must be appointed by the Surrogate's Court. This is usually a spouse, or other relative of the deceased person. The personal representative is responsible to prosecute the case, and at the end of the case, to present the wrongful death settlement to the court for approval. In the approval process:
- The court allocates the proceeds between pain and suffering damages and the wrongful death settlement itself.
- The pain and suffering portion of the proceeds may be divided in accordance with the deceased person’s Will, or if there is no Will, as set by law.
- The proceeds of the wrongful death settlement are divided by the Court in accordance with the support, financial and otherwise, that the deceased person gave his or her survivors.
- A surviving spouse and small children who were dependent on the deceased person for financial support will get a larger share than adult children who were financially independent.
- A wrongful death settlement in the case of a high earner in the prime of life, will generally be much larger than for a very young or very old victim, or someone who was disabled.
The statute of limitations for wrongful death in New York is two years from the date of death, in almost all cases.