New york city wrongful death and survivorship lawyers
In accident claims and cases, the types and kinds of fatalities and serious injuries involved are limitless. Aside from liability issues and determining fault, the serious injuries suffered are very real, painful and often permanent. Permanent, disabling injuries not only change the life of those injured – but their families as well.
Though many serious injuries and the resultant pain and disabilities are obvious, observable and visible, many are less apparent – though no less painful, disabling and permanent. The nature, duration, extent and possible permanency of the injuries suffered must be thoroughly evaluated and established for any claim or law suit. In many states, for certain claims and suits, injury categories have been established by law. New York also has similar laws for certain types of accidents.
Like most states, New York has laws defining the severity of injuries in various types of claims and cases. In New York, like other states, when someone is injured in an accident involving a motor vehicle, there are certain “no-fault” statutes which apply; most notably, to define what is a “serious injury.” Also, if someone is injured at work, their ability to recovery for injuries, generally, is limited to workers’ compensation benefits. Though an injured employee cannot directly sue an employer, there are instances where a “third-party” claim or suit might be brought against other persons or entities possibly at fault for the accident. Under New York law, the nature, duration, extent and possible permanency of an employee’s injuries must meet the New York Workers’ Compensation Law definition of “grave injury.”
There are other examples where New York law may affect or limit the ability of any injured claimant to sue and/or recover for their injuries. That is why it is critical to consult with an attorney as soon as possible.
So what is a serious or grave injury? Though not exhaustive, examples of serious injury categories include motor vehicle accident cases and those involving workplace (often construction site) accidents.
Motor Vehicle (No-Fault)
Article 51 of the Insurance Law provides that a plaintiff in a personal injury action arising out of negligence in the use or operation of a motor vehicle must establish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered “serious injury.”
Insurance Law § 5104(a), (b). Serious injury is defined as personal injury which results in one of the following:
- Significant disfigurement
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of a body organ or member
- Significant limitation of use of a body function or system
- Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. Insurance Law §5102(d).
New York Labor Law (construction site accidents)
Under New York Workers’ Compensation Law Section 11 “grave injury” means one or more of the following:
- permanent and total loss of use or amputation of an arm, leg, hand or foot
- loss of multiple fingers
- loss of multiple toes
- paraplegia or quadriplegia
- total and permanent blindness
- total and permanent deafness
- loss of nose
- loss of ear
- permanent and severe facial disfigurement
- loss of an index finger
- an acquired injury to the brain caused by an external physical force resulting in permanent total disability
Fatalities (Wrongful Death & Survivorship)
Traumatic injuries of any kind can result in death, whether instantaneously, shortly after an accident or gradually, over days, weeks or even years. Certain types of injuries, such as traumatic brain injuries, head & face trauma, spinal cord injuries, internal injuries and burns and smoke inhalation often are fatal. Whether from the blunt-force trauma associated with motor vehicle accidents, other impacts and falls or from burns and smoke inhalation caused by fires, fatal injuries are devastating to one’s family, relatives and friends.
To bring a claim or suit for a loved one’s death, there are certain time limitations – or statutes of limitations – within which a lawsuit must be filed or the claimants will be forever time-barred from filing suit.
In New York law, fatalities caused by the negligence, carelessness and recklessness of others, may be compensable should fault be established. In any action brought in New York to recover damages for a person’s death, there are two separate causes of action: specifically, survivorship and wrongful death. A survivorship cause of action is where an estate seeks recovery for a decedent’s conscious pain and suffering prior to death. A wrongful death cause of action, conversely, belongs to those distributees of a decedent’s estate who have suffered pecuniary (economic) loss occasioned by the death.
Statute of Limitations
The applicable statute of limitations will differ depending on the cause of action asserted. The New York statute of limitations for a survivorship cause of action is three (3) years from the date of accident or one (1) year from the date of death, whichever is longer. However, in accordance with Section 5-4.2 of New York’s Estates, Powers and Trusts Law [EPTL], the statute of limitations for a wrongful death claim is two (2) years from the date of death. Though certain exceptions may apply, it’s always best to seek a legal consultation as soon as practicable following an accident.
In New Jersey, the applicable statute of limitations for both survivorship and wrongful death claims & suits is two (2) years.
A survivorship action is brought by a decedent’s estate to compensate for the decedent’s own pain and suffering prior to death. In order for an estate to prevail in a survivorship claim for a decedent’s conscious pain and suffering, there must be evidence that the decedent exhibited “cognitive awareness” prior to death. Said another way, the estate must prove that the decedent was conscious and aware at some level for a period of time after the accident and endured pain and suffering before dying.
The elements considered by a jury to award compensation for a decedent’s conscious pain and suffering include the time interval between injury and death, degree of consciousness, likely severity of pain, likely suffering experienced and the apprehension of one’s own impending death. New York courts also have recognized a decedent’s “pre-impact terror” as an element of conscious pain and suffering.
A separate cause of action for wrongful death is where decedent’s survivors may seek compensation for economic losses, both incurred and anticipated in the future. In New York, the elements of a wrongful death claim or suit, generally, include: (a) a death, (b) caused by the wrongful conduct of another, (c) giving rise to a cause of action the deceased could have pursued if the death had not occurred, (d) the survival of one or more persons who have suffered loss as a result of the death and (e) damages.
Unlike a survivorship claim, only distributees, as defined in New York’s EPTL 4-1.1, can share in the proceeds of a wrongful death action. Because of this distinction, the claimants in the survivorship claim may differ from those in the wrongful death claim.
The damages awarded in New York wrongful death actions are recoverable by a decedent’s distributees to compensate them for their own economic loss occasioned by the death of a loved one; and, consequently, are not considered part of the deceased individual’s estate to be distributed either via intestate distribution or the terms of a will. EPTL Section 5-4.3 limits an award of damages in a wrongful death action to “fair and just” compensation for the pecuniary injuries resulting from decedent’s death. The recoverable damages may include loss of support, voluntary assistance and a possible inheritance, as well as medical expenses incident to the decedent’s death and decedent’s funeral expenses.
In order to establish a right to a wrongful death recovery, claimants need only show a reasonable expectation of support from the decedent. Once that burden is met, the calculation of the amount of damages is left to the jury. Claimants need not need prove that they were receiving any actual support at the time of decedent’s death.
To establish “fair and just” compensation for a claimant’s economic loss, a New York jury would be asked to consider a number of factors , including the decedent’s: age, health and life expectancy at the time of death; work habits and present position; future earning capacity and potential for career advancement; and, the number, age and life expectancy of decedent’s distributees.
Again, the claimed damages are limited to economic losses. However, in addition to future lost wages & earnings and actual expenses incurred, the loss of future support and services which might otherwise have been performed by the decedent also might be recoverable.
Importantly, if the distributees are minor children, the economic damages claimed (to age 21) also may include loss of parental support, including a parent’s nurture, intellectual, moral and physical training and guidance.
Fatal Accident Attorneys Serving The Bronx and Other Areas
The team at The Mandel Law Firm has a proven record of success in taking on the big hospitals, the national trucking companies, the insurance industry and anyone who stands in the way of justice for our clients and their families. If you need an attorney with the strength and passion to go to the mat for you in a wrongful death claim or lawsuit, contact us today.
Your initial consultation will be absolutely free. If we take your case, there will be no up-front legal fees for you to pay. You need answers. You need an attorney who will listen and help you fight for justice for the families of drowning victims, electrocuted construction workers and other victims of accident or negligence. Call us toll-free today at (888) 2 WIN NOW (888-294-6669) or locally at (646) 779-1441. We can help.