New York State has one of the most antiquated wrongful death statutes in the nation. A bill currently pending before the legislature in Albany would fix the disparities and unjust outcomes the law has fostered in wrongful death cases for decades.
It’s high time for that change to happen. Here’s why.
An Unjust Law
A wrongful death lawsuit seeks compensation for the death of a spouse or family member resulting from someone’s wrongful actions. Its premise is that a death causes compensable harm to those the deceased leaves behind, and that that harm is distinct from any damages suffered by the deceased up to the moment of death.
Most states have statutes on the books that define the types of harm remedied by a wrongful death action. In the majority of those states, the laws recognize that liable parties should pay for both the economic and non-economic damages families suffer when their loved ones die in preventable accidents.
That makes intuitive sense. After all, economic and non-economic damages are available in virtually every other type of personal injury lawsuit. There’s no obvious reason to treat wrongful death cases differently.
But that, unfortunately, is exactly what New York’s current wrongful death statute does. Enacted in 1847 and still largely unchanged, the law limits plaintiffs in New York wrongful death actions to seeking only compensation for “pecuniary injuries resulting from the decedent’s death”.
In other words, a New York wrongful death action can recover only economic damages. No damages for family members’ emotional suffering. No damages for their loss of consortium or companionship. Plaintiffs in a New York wrongful death case can only recover the value of the income or financial support they can prove the deceased would have provided, plus any medical expenses related to treating the injury that led to death, and funeral expenses.
By treating the loss of a loved one in a preventable accident or incident as a purely monetary injury, New York’s wrongful death law leads to a host of disconcerting and often downright discriminatory results.
- It perpetuates socio-economic, racial, and gender-based income disparities by assigning more value to the life of a high-earning (often white, male) individual than to that of a person who made a modest living or (as in the case of a stay-at-home parent) no income at all.
- It effectively places little-to-no value on the life of a child, because grieving parents will often struggle to prove that their child would have provided them with financial support in the distant future. (Judges have tried to address this obvious injustice by allowing juries to presume the value of a child’s future earnings, but those half-measures only paper over the problem.)
- It has the absurd effect of putting New York families at an economic disadvantage relative to families in neighboring states when they lose loved ones in a mass casualty event like a plane crash.
- It can mean that the at-fault party benefits financially if the victim dies, because an injured victim can seek non-economic damages, whereas a wrongful death plaintiff cannot.
These are not merely theoretical problems. For decades, New York’s wrongful death statute has resulted in real-life inequalities in the compensation of grieving families. To this day, in courtrooms across the state, poor families and families who lose children or stay-at-home parents receive less compensation in wrongful death actions than families who lose a high-earning loved one. The law values men more than women and children, white people more than persons of color, and Southampton families more than Buffalo families.
Overdue for a Change, Again
You might understandably wonder: Who would ever enact such an obviously unfair law? Believe it or not, however, when the state passed it 174 years ago, New York’s wrongful death statute stood out as a model of enlightened, socially progressive legislation.
The United States, New York included, inherited most of its legal and judicial traditions from England, where the law traces its origins at least as far back as the adoption of the Magna Carta by King John in 1215. For centuries, English law simply did not recognize any such thing as a wrongful death action. Injured people could seek compensation through a rudimentary justice system, but if their loved ones died of injuries in accidents caused by others, they were out-of-luck.
That changed when England, in the throes of the Industrial Revolution, adopted its first-ever wrongful death statute, the Fatal Accidents Act of 1846 (also known as Lord Campbell’s Act, after its chief sponsor, Lord John Campbell). For the first time, English law allowed the wife, husband, or child of a deceased person to seek compensation for “such damages as [are] proportioned to the loss resulting from such death.” English courts interpreted the statute as allowing only economic damages, but for grieving English families, that was better than nothing.
Around the same time, state legislatures in the United States also began to recognize the arbitrary injustice of closing the courthouse doors to grieving families. As in England, rapid industrialization and the growing impact of railroads (and deaths of workers and others on them) helped to spur legal change.
States took varying approaches to wrongful death lawsuits. Some initially limited their laws to allow claims arising from railroad deaths. New York, in contrast, took a more direct route to reform. In 1847, the state legislature enacted the wrongful death statute that remains on the books today, modeling it on Lord Campbell’s Act. It was the first comprehensive wrongful death statute in the nation, and it represented a massive step forward for ordinary New Yorkers’ legal rights.
Soon, other states followed New York’s lead. Today, thanks in no small part to the example our forward-thinking legislators set, all states allow some form of wrongful death action.
As detailed above, however, that original law now shows its advanced age. New York now lags far behind its peer states in protecting the rights of grieving spouses, children, and parents. It’s time, once again, for Empire State legislatures to change longstanding law for the better.
In Support of the Proposed Grieving Families Act
That change can happen, if the New York State Senate and State Assembly pass the Grieving Families Act (2021-2022 legislative session bill S00074/A6770). Sponsored by Senator Brad Hoylman and Assemblywoman Helene Weinstein, the Grieving Families Act aims to bring New York’s wrongful death statute into the 21st century, principally by updating the types of damages grieving families can recover for the death of a loved one. A version of the bill has been introduced in the New York legislature several times over the past decade, but it finally appears to have enough support to move forward in the current legislative session.
The Grieving Families Act proposes to amend New York’s existing wrongful death statute to make three new categories of damages recoverable in a wrongful death case, in addition to the pecuniary damages the statute already authorizes:
- Damages for grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish;
- Damages for loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death; and
- Damages for loss of nurture, guidance, counsel, advice, training, and education resulting from the decedent’s death.
By expanding the scope of damages grieving families can obtain in a wrongful death suit, the Act would go a long way in alleviating the disparities discussed above, and would align New York with other states in recognizing that death inflicts more than just economic harm. Compensation for a wrongful death in New York would no longer be tied uniquely to the deceased’s expected income, but could also take into account the full human impact of the loss.
The Act would also amend other provisions of the existing statute that have exacerbated its worst impacts. One amendment would extend the statute of limitations for wrongful death actions from two years to three years and 6 months, which would give families much-needed additional time to investigate their loved one’s death before taking action.
Another amendment would expand the universe of family members entitled to pursue a wrongful death action to include a broader range of individuals who have close relationships with the decedent (such as grandparents, domestic partners, and step-parents), to account for evolving conceptions of family in today’s society.
These are common-sense reforms. They would put an end to a miscarriage of justice that occurs far too often in New York courts. They would also eliminate the need for judges and juries to find creative, but often legally and factually strained, ways to work around the current unjust law to reach a fair result for a family mourning the loss of a treasured parent, spouse, or child.
We wholeheartedly support the passage of the Grieving Families Act, and encourage our readers to contact their New York state representatives to urge them to support it, too.
In Response to the Bill’s Opponents
You would hope that such a sensible law would pass the legislature with unanimous support. Unfortunately, as we have seen in the past, opposition can stall even the most overdue and worthy pieces of legislation. The Grieving Families Act may face similar resistance, but it shouldn’t.
One common objection to any law that proposes to expand the rights of injured parties to sue for damages is that insurance rates will rise, and that the law will thereby do more economic harm than good to New Yorkers as a whole. Those dire predictions, however, never seem to come to pass, and they won’t with the Grieving Families Act either.
Most states already allow for the types of wrongful death damages that the Grieving Families Act would permit. Insurance rates do not crush businesses and individuals in those states, and there’s no reason to think they’ll have any different effect in New York. The existing national insurance market for wrongful death liability insurance is more than able to accommodate a change in New York law.
Additionally, focusing on the perceived costs of the Grieving Families Act ignores that those costs already exist. Instead of being spread around through the mechanism of insurance, however, they’re disproportionately (and unfairly) borne by families unlucky enough to lose a loved one who happened to earn little or no income at the time of death. The Grieving Families Act, in other words, would not so much impose new costs on New Yorkers as it would distribute the existing costs of wrongful deaths more evenly and equitably.
Another common complaint about a law that expands personal injury victims’ rights is that it will only serve to make lawyers rich. That, too, is a myth bearing little resemblance to reality. A market also exists for legal services, and lawyers (like everyone else) must do their jobs efficiently and cost-effectively to stay in business.
Some law firms might do marginally better if the law allows wrongful death plaintiffs to recover damages that actually represent the harm deaths cause. However, to suggest that amending New York’s unjust wrongful death law constitutes a sop to the legal profession ignores that wrongful death cases represent only a small portion of the work most personal injury law firms do. The Grieving Families Act’s greatest financial benefit would flow to the people who matter—grieving families—not to their attorneys.
Ultimately, the Grieving Families Act should gain passage in the legislature because it’s the right thing to do. In the year 2021, it makes no sense for New York to continue to treat deaths as purely economic injuries. That’s a callous, retrograde notion that does not comport with any contemporary understanding of human worth and dignity. A poor family does not grieve the loss of a loved one any less than a rich family. A woman’s or child’s death is no less tragic than a man’s. It’s that simple.
A New York Wrongful Death Lawyer Can Help You Learn more
Has your family recently suffered the loss of a spouse, parent, or child in an accident or incident that was probably someone else’s fault? If so, then under New York law you may already have the right to receive significant financial compensation, and if the Grieving Families Act passes, that potential compensation may increase.
The guidance of a skilled, knowledgeable wrongful death attorney who stays abreast of changes in New York law can serve as an invaluable asset in your case.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.