By Mark T. Freeley, Esq. (Open Post)July 31, 2013 at 1:02pm
In the last twenty years, the most difficult and emotional conversations that I have had with clients have taken place when we were discussing the death of a loved one as a result of an accident. The loss of a spouse, parent or especially a child is something none of us even want to imagine as we cannot seem to fathom how we would ever be able to deal with such tragedy. Yet every week in the news we see tragic events unfolding all around us on Long Island. When we learn of a death caused by the fault of another, we naturally assume that the family of the deceased will be properly compensated for the loss of their loved one. One would think that cases involving the death of a loved one would have the greatest value of any case. Unfortunately, under the archaic New York State Wrongful Death Law (which only a very few states still have), this is not true.
New York State law limits the damages that can be sought in death cases. Surviving family members are not permitted to seek compensation for their emotional grief or loss; widows/widowers are not entitled to compensation for the loss of the marital relationship; mothers/fathers cannot even seek compensation for the emotional loss of their child. When I explain our law to clients that have lost someone, it is often difficult for them to believe or comprehend.
The only compensation that can be sought in a case involving death is for the financial loss of the person who died (decedent) or for the conscious pain and suffering they endured prior to their death. So, if the decedent was earning income for the benefit of the family, the loss of this income can be sought. Also, if the decedent was a parent of a child, the loss of the nurture, care and guidance of the parent to the child can also be sought.
If there is proof of conscious pain and suffering and the duration of same, compensation can be sought for that as well.
The toughest cases involve the death of a child or an elderly family member where there is no evidence of conscious pain and suffering. In these instances there is usually no economic loss that can be proven either, and as such the compensation that can be sought is very small ( unless the survivor was in the " zone of danger" and witnessed the death). It is impossible to imagine the loss of a child, and to then learn that our law does not permit compensation for the emotional loss of a child is inexplicable.
Each year the New York State Trial Lawyers Association speaks to our legislators about changing this senseless law, yet, it still remains with us. However, the more people that know about this law and understand how unjust it is, the better our chances are of getting it changed. Let's all make a commitment to contact our lawmakers in Albany letting them know that it's time for a change. You can send an e-mail to Assemblyman Steven Englebright by going to his website at www.assembly.state.ny.us/mem/Steve-Englebright, and you can send an e-mail directly to Senator John J. Flanagan at email@example.com.
Mark T. Freeley, Esq.