When a person is killed by the negligent acts or behavior of another party, the New York Estates, Powers and Trust Laws allow the representative of his or her estate to file a wrongful death claim against the party or parties responsible. The general rule is that if the victim had grounds for a personal injury claim had they lived, his or her survivors are justified in filing a wrongful death suit.

Examples of such fatal accident claims include:

  • Medical malpractice
  • Motor vehicle accidents
  • Workplace fatalities
  • Impaired driving accidents
  • Construction site fatalities

Who can file a claim                                                                                       

According to New York statute, the following individuals may file a wrongful death lawsuit:

  • A spouse of the decedent,
  • A child of the decedent,
  • A parent of the decedent, and
  • The personal representative for the estate of the decedent.

Relatives such as siblings and cousins are not automatically entitled to file a suit, but they may if they have been named as the personal representative of the victim’s estate, and there is no surviving spouse, child, or parent.

Required elements of the wrongful death claim

For their claim to be successful, plaintiffs are required to prove the existence of certain elements, such as:

  • The defendant had a legal obligation. There is an implicit legal obligation to avoid high-risk and potentially dangerous actions. For example, manufacturers have a duty to create a safe product and drivers must avoid getting behind the wheel while impaired.
  • There was a breach of that obligation. If the defendant could have avoided the tragedy by being more careful, then they are considered to be negligent.
  • The breach was a direct cause of the victim’s death. If the defendant’s actions directly caused the person’s death, then they can be sued.
  • The survivors suffered damages as a result. These include both economic and noneconomic damages such as medical bills, funeral costs, lost financial support, loss of companionship, and loss of parental guidance.

When it comes to damages in a wrongful death action, only two types are recoverable: economic loss and any pain and suffering the deceased experienced. New York law does not allow survivors to claim compensation for their own emotional distress, except under one circumstance known as the ‘zone of danger’ exception. This applies if the family member actually witnessed the fatal accident, placing them in the zone of danger and potentially entitling them to a legal recovery for emotional distress.

Hire an attorney

The onus is on the plaintiff to prove each of the above elements, but their claim can be strengthened by obtaining the services of an experienced New York wrongful death attorney, who can help gather the necessary evidence and present it in a way that supports and fortifies the family’s case.

In the majority of cases, the statute of limitations for a wrongful death lawsuit in New York is two years. Failure to file before this date can result in survivors losing the right to compensation, so it is important to engage an attorney as soon as possible, so that the claim can be handled in a timely manner. The law office of Jayson Lutzky, P.C. handles accident and person injury cases related to wrongful death. If you are considering filing a wrongful death claim, then you should speak with Mr. Lutzky. Call 718-514-6619 to schedule an in-person appointment and visit www.MyNewYorkCityLawyer.com to learn more about Mr. Lutzky’s services and for directions to his Bronx office.