September 12, 2022 | Reading Time: 4 min If someone passes away or is killed due to the negligence or misconduct of another, their surviving family members may sue for wrongful death. These lawsuits seek compensation from the negligent party for the survivors’ losses which can include lost wages, pain and suffering, and funeral expenses.
So, what is a wrongful death lawsuit and what exactly is involved in the process?
Who Can Sue For A Wrongful Death
According to New York State Law, a wrongful death lawsuit can be filed within two years of death by the deceased’s children, parents, or spouse who are named as representatives of their estate.
Actions for any personal injuries, pain and suffering, or expenses that were incurred prior the decedent’s death are also brought forth in a wrongful death suit by the personal representative. The damage awards will then belong to the estate, and any money recovered is distributed in accordance with the person’s will or if no will pursuant to New York State law.
Damages in Wrongful Death
Damages in a wrongful death case will typically fall into two categories, which are generally defined by two distinct time periods.
The first permits the recovery of damages experienced by the deceased from the moment the negligent act occurred until the descendant’s death. These damages may include:
- Medical expenses
- The deceased’s pain and suffering
- The deceased’s lost wages
- Funeral and burial expenses
The second category covers the losses experienced by next of kin after the deceased’s death. These damages are meant to compensate the family of the descendant for their financial losses including:
- Financial support the deceased would have contributed to the family
- The value of support and services that the deceased would have contributed to the family
- The value of parental nurturing, care, or guidance to surviving children
In New York State, the surviving family members are not allowed to recover their own damages for pain and suffering, mental anguish, or loss of companionship.
Proving Negligence In A Wrongful Death Suit
To successfully bring forth a wrongful death suit and collect damages, the deceased’s personal representative must prove the following:
- A death has occurred
- The defendant engaged in negligent, reckless or intentional conduct that caused the death
- The surviving family suffered economic and emotional damages as a direct result of the death
- The appointment of said personal representative for the decedent’s estate
- The amount of damages resulting from the death
What Evidence Is Used In A Wrongful Death Claim?
The particular evidence that will be used can vary from case to case, but the most common types of evidence are:
- A certified copy of the death certificate or autopsy report
- Eyewitness testimonies
- Police reports
- Video or photographic evidence of any injuries sustained before death
- Admissions or statements from the defendant
- Medical records
- Expert testimonies as they relate to scientific and medical issues in the case
Why Hire A Wrongful Death Lawyer?
Losing a loved one is an extremely painful and stressful experience. Many times, the family of the deceased will look to the help of a competent wrongful death lawyer to handle their wrongful death lawsuit. An experienced wrongful death attorney will be able to handle all of the moving parts included in filing a wrongful death lawsuit with the negligent party, or parties, while the family of the deceased focus on healing.
As with most lawsuits, very few wrongful death cases will result in a trial before a jury. Instead, a wrongful death lawyer will negotiate with the defendant’s insurance company to ensure that a fair and reasonable settlement is reached. Oftentimes, a skilled lawyer will be able to negotiate a better settlement than if the decedent’s family were to try and negotiate their own settlement.
If a loved one has passed away after an accident or injury caused by the negligence and misconduct of another, you may be entitled to bring legal action against those involved. The team of compassionate and skilled attorneys at Cellino Law are here to help. Although a lawsuit cannot bring back your loved one, our team will fight to ensure that your family receives fair and just compensation for your losses. Call us any time at 888-888-8888 for a free and confidential consultation with one of our legal experts.
Content checked by the personal injury attorney Ross Cellino. As a family man and a trial attorney, I pride myself on winning cases and serving the community. With over 35 years of experience, I understand the function of a jury, how juries arrive at conclusions, and the role that the jury plays in administering justice. I know how to win cases. You can find us in Manhattan, Buffalo, Melville, Rochester, Brooklyn, The Bronx, Queens and other locations throughout New York.