How Does a Wrongful Death Lawsuit Work?
If you have lost a loved one, either as a result of an intentional act or due to someone else’s carelessness, you can file a wrongful death lawsuit against the party that caused the death. New York law allows the estate and loved ones to hold the responsible party liable for paying damages to compensate for the death. If you have lost a loved one due to the negligent or intentional acts of another person, it is important to know how these lawsuits work.
Contact Silberstein, Awad & Miklos, P.C. today to request a free consultation with an experienced NYC wrongful death attorney.
When Can You File a Wrongful Death Claim?
Wrongful death claims are appropriate any time the victim could have pursued a personal injury lawsuit had they survived the accident that resulted in their death. A few of the most common types of situations that result in a wrongful death claim include:
- Intentional death: Any time someone intentionally ends the life of another person, the loved ones of the deceased can file a wrongful death claim. In a very famous example, the families of Nicole Brown and Ronald Goldman sued O.J. Simpson after he was accused of killing those victims. The criminal trial Simpson went through was separate from the civil wrongful death claims.
- Medical malpractice: Due to the fact that patients are already experiencing health problems, and the very nature of medical care, medical malpractice results in some of the worst injuries and sometimes even death.
- Car accidents: Car accidents are one of the most common reasons wrongful death lawsuits arise.
Sadly, the above are just a few of the most common reasons wrongful death claims are filed in New York. Nearly any time someone else is killed as a result of someone else’s negligence, a wrongful death claim is appropriate. There are exceptions, however, such as when someone is killed on the job. In this instance, workers’ compensation is probably more appropriate, although it depends on the facts of the case.
What Must You Prove in a Wrongful Death Claim?
Just as the deceased would have to prove their claim if they had survived the accident, individuals filing a wrongful death claim must also prove their case. To do this, you must prove:
- The defendant owed the deceased a duty of care
- The defendant breached their duty, or acted negligently
- The breach of duty, or act of negligence, was the direct and proximate cause of the death
- The death resulted in damages the plaintiff is trying to recover
While the above elements of proof may seem straightforward, proving negligence always presents challenges. A New York wrongful death lawyer can help you prove the elements of your claim so you recover the fair settlement you deserve.
Who Can File a Wrongful Death Claim in New York?
In New York, the personal representative of the estate can file a wrongful death lawsuit. The personal representative is typically named in the estate plan of the deceased. If the deceased did not have an estate plan or name a personal representative, the court will appoint one. If damages are awarded, they are then distributed to first the surviving spouse and children, and then the parents of the deceased. If the deceased did not have a surviving spouse, children, or parents, the siblings of the deceased may be awarded damages.
Damages Available in a Wrongful Death Claim
Damages in wrongful death claims are intended to help the loved ones of the deceased recover the losses they incurred as a result of the death. However, New York also allows the personal representative to file a survival claim, which is a separate claim but is often filed in conjunction with a wrongful death lawsuit. Survival claims are meant to compensate the estate for any losses the deceased incurred between the time of the accident and the time of their death.
For example, if someone was in a car accident, they may suffer serious injuries and have to remain in the hospital for several weeks. If they eventually succumb to those injuries and pass away, a survival claim could seek damages for the losses incurred before they died. These damages could include their medical expenses, lost income, and pain and suffering. The damages would then go to the person’s estate.
A wrongful death claim, on the other hand, is meant to compensate loved ones for their losses. These damages often include funeral and burial expenses, loss of the deceased’s income for those financially dependent on the accident victim, and loss of consortium. Regardless of whether you are filing a survival claim, a wrongful death claim, or both, it is important to speak to a New York wrongful death lawyer that can advise on the full damages you and the estate deserve.
Statute of Limitations in Wrongful Death Claims
It is important to file a wrongful death claim as soon as possible. If necessary, the probate court’s appointment of a personal representative may take several months, and that will count as part of the statute of limitations. The statute of limitations is the time limit you have to file. In New York, that time limit is two years from the date of death. If you do not file your claim within that time, you will likely forfeit your legal right to claim any damages for you or the estate.
In addition to the amount of time it takes to appoint a personal representative, a lawyer will also conduct an investigation before filing the claim. This investigation is necessary to determine which party is liable for the death and to collect evidence that backs up the claim. To ensure you do not lose the damages you deserve, contact a New York wrongful death lawyer as soon as possible.
Get Legal Help Today
If you have lost a loved one due to the negligent or wrongful acts of another person, our New York wrongful death lawyers at Silberstein, Awad & Miklos, P.C. can help you claim the damages you deserve. Contact us today to schedule a free consultation with one of our knowledgeable attorneys.