Many people would be surprised to learn that in New York, family members are not entitled to monetary damages for the emotional loss they experience when a family member is killed through wrongful death. Instead, their damages are limited to the economic damages directly stemming from the decedent’s death, as well as any conscious pain and suffering or fear of impending death suffered by the decedent.
- Economic Damages: You need to show the actual monetary value that must be replaced by the loss of the loved one. For example, imagine a businessman with an annual income of $300,000 is negligently killed – his family is entitled to the replacement value of his income. The exact amount would be up to an expert economist hired by the plaintiff. The calculation would take into account the number of expected years of earning capacity remaining in his career. But consider that if this man’s wife, who was primarily a housewife, passed away, the damages would likely be far less. This is because the cost to replace her services as a stay-at-home parent would likely be less than his salary.
In the case of a parent who is killed, the plaintiff must prove the special guidance that the parent was providing to his or her child, which must now be replaced. For example, if the parent was regularly involved in tutoring the child, or teaching the child how to play golf, the defendant may be required to pay for the child to continue receiving private tutoring and/or golfing lessons.
- Conscious Pain and Suffering/Fear of Impending Death: These damages are awarded not for the death itself, but for the pain and suffering the deceased had to endure before dying. These damages can be difficult to prove, but are often shown through eyewitness testimony as to the injured person’s complaints or screams of pain or high dosages of pain medication needed to help ease the deceased’s suffering prior to their death.
In a hospital, an injured person can endure weeks or even months of pain and suffering before passing, and the family may be entitled to significant compensation.
Damages are also available for the decedent’s fear of impending death. The fear and apprehension of the certainty of death is compensable, even if the person is only aware of their fate for a brief time before dying. An example of this is someone who is falling to their death, or drowning. In this situation, they are fully aware that death is imminent, but they are forced to await their undeniable fate.
*This is not true for cases involving carbon monoxide poisoning. With this type of death, a person simply drifts off to sleep, never to wake up. There is typically no pain or awareness of impending death, and therefore this type of passing may make it very difficult for a family to receive substantial compensation.
If a loved one has suffered a death that you believe could have or should have been avoided, consult with an experienced attorney to find out what you and the family might be entitled to in way of damages for your terrible loss.