Wrongful Death Attorney New York

Personal Injury

A wrongful death occurs when the victim dies due to the fault, negligence or wrongdoing of another person or entity. Such deaths lead to what is known as a wrongful death lawsuit, which is filed by the family of the victim. The lawsuit may seek monetary compensation for damages such as lost wages and benefits of the deceased, lost future income, medical and funeral expenses, etc.

wrongful death lawyerA wrongful death lawsuit is a civil action, which means it is processed through the civil court system. In a criminal murder case, the at-fault party is found “guilty” and punished with prison time or sentenced to death. In such a civil case, the at-fault party is held liable and ordered to pay monetary damages determined by the court or jury to the survivors of the deceased victim.

A wrongful death claim in New York may be regarded as a personal injury claim in which the decedent is no longer available to represent his or her own interests in court. Instead, the surviving members of the decedent’s family bring the claim to court and seek compensation for damages from the person, entity or corporation responsible for the wrongful death.

How Families are Affected

The death of a loved one is without doubt one of the most traumatic experiences that human beings undergo. If a loved one died suddenly due to someone else’s negligence or wrongdoing, family members are left devastated. The trauma they experience in such cases will definitely be more than if it had been a natural death for the victim. Families suffer not just emotionally, but also financially. For example, if the decedent was the primary or sole wage earner for the family, it is very likely that family members are left without a source of regular income or even medical, dental or other benefits.

Often, in wrongful death cases, family members are also looking for answers. The questions they ask can range from – What happened and why did my loved one die? How did this death occur and could it have been prevented? Who was at fault? How can I ensure that this never happens again to another person?

The experienced New York personal injury lawyers at the Law Offices of Kenneth A. Wilhelm can help you find the answers to such questions and assist you during this time of grief and turmoil. We understand the importance of protecting your loved one’s memory and dignity. We also understand that a wrongful death lawsuit is not going to bring your loved one back. But we can help you regain your financial footing as well as secure a sense of justice for you by holding the negligent parties and/or wrongdoers accountable. We have been able to recover for families and estates even in cases where there were no witnesses for our clients and where there was evidence that the deceased victim may have been at fault or partly at fault. In one of our cases we recovered $600,000 for the survivors of a man on a bicycle who passed a red light and there were three witnesses against us and our client tested positive for marijuana in his system.

Elements of a Wrongful Death Case

New York Estates, Powers, and Trusts Law Part 4 requires plaintiffs to prove five elements in order to establish a claim for wrongful death. Plaintiffs in wrongful death cases must prove that:

  • A death has occurred.
  • The death was caused by wrongful conduct on the part of the defendant.
  • It gave rise to a cause of action the deceased could have pursued in court if his or her death had not occurred.
  • The decedent is survived by one or more persons (family members or dependents) who have suffered a loss as the result of the death
  • The plaintiffs are entitled to damages.

New York’s Estate Powers and Trust Law (EPTL), Article 5, Part 4, EPTL 213-217, is New York’s wrongful death statute. This law provides that the personal representative of the decedent’s estate has the right to sue for damages. The court determines damages in a wrongful death lawsuit for an amount it deems just. In addition to compensatory damages, the court may also award punitive damages, which are meant to punish the defendant in egregious (outrageous) cases.

Difference Between Wrongful Death and Murder

Wrongful death lawsuits have a different burden of proof than criminal cases. In a criminal murder case, the prosecution bears the burden of proof. In a wrongful death case, the plaintiff’s attorney must prove the elements of the case. In a murder case, the prosecution must prove guilt “beyond a reasonable doubt” in order to obtain a conviction. In a wrongful death case, the plaintiff must prove that the defendant is responsible for the death by a “preponderance of the evidence,” which means that there is at least a 51 percent probability that the defendant’s actions caused the victim’s death.

Wrongful death lawsuits and murder cases are also different because the “levels of intent” may be different. For example, in a wrongful death case, the defendant may have just been careless or negligent as opposed to murder where the defendant intentionally killed the victim. Murder always involves a certain degree of criminal intent.

Who Can File a Wrongful Death Claim?

A wrongful death claim must be filed by a representative on behalf of the decedent’s survivors or those who may suffer losses as a result of the victim’s death. The representative is typically the executor or administrator of the deceased person’s estate. Parties that may be eligible to file a wrongful death claim include:

Immediate family members: Immediate members of the decedent’s family including the spouse, children, brothers and sisters, adopted children and parents of unmarried children qualify to file a wrongful death claim.

Partners: Domestic or life partners are also eligible to file a wrongful death claim under New York State law. This includes a “putative spouse,” a person who had a good faith belief that he or she was married to the victim.

Distant family members: Depending on the circumstances of the case, more distant family members such as grandparents may be able to bring wrongful death lawsuits.

Financial dependents: All those who suffer financially as the result of the decedent’s death can bring a wrongful death action for lost care or support, even if they may not be blood relatives or related by marriage to the victim.

Defendants in a Wrongful Death Lawsuit

Wrongful death lawsuits can be brought against a variety of parties depending on the facts and circumstances of the case. Here are some examples of who may be a defendant in a New York wrongful death case:

  • The driver and car owner at fault for a car accident.
  • The employer of a driver who may have caused a fatal car accident.
  • A governmental agency responsible for designing or maintaining a defective roadway.
  • The property owner or governmental agency charged with maintaining defective property that caused a fatal slip-and-fall or trip-and-fall accident.
  • The manufacturer of a defective vehicle or faulty product that caused the victim’s death.
  • A surgeon whose negligence caused the death of the patient during surgery.
  • A doctor’s misdiagnosis, which caused the patient’s health condition to deteriorate and his or her eventual death.
  • A general contractor or sub-contractor who allowed safety violations at a worksite, which led to a fatal accident.
  • An employer who allowed a dangerous condition to exist in a workplace.

Some Examples of Wrongful Death Cases

Compensation in Wrongful Death Cases

There are a number of factors that determine damages in a wrongful death lawsuit:

Work life expectancy: This estimates the projected lost earnings capacity. Work life expectancy is defined as the number of years of earnings the decedent was expected to have before natural death or retirement.

Medical expenses: This includes all medical expenses incurred by the victim’s family after the incident that led to his or her wrongful death. This may include emergency room costs, cost of hospitalization, surgeries, etc.

Funeral costs: This includes all expenses relating to the decedent’s funeral and burial or cremation.

Lost earnings: This represents the decedent’s earning capacity for the period of the work life expectancy. In other words, we calculate what the decedent’s lifetime earnings would have been but for the wrongful death. If the decedent had an employment history, these projections could be based on past earnings, past earnings growth and anticipated promotions. If a decedent was an infant or the survivor of deceased parents, the courts require projections in terms of probabilities.

Lost household services: Every individual contributes certain services to the family that are not compensated. A good example of such a service is household work done by the decedent such as cleaning, cooking, caring for children or yard work. Household work or household services are assigned a value in wrongful death claims.

Pain and suffering: Pain and suffering in wrongful death claims refers to the pain and suffering undergone by the deceased prior to his or her death.

Other noneconomic damages: Compensation in wrongful death claims can also include loss of companionship, comfort, affection, society, solace, moral support, guidance, protection, advice and training. For example, substantial awards are common for children who have lost a parent or both parents, or a guardian.

Wrongful Death Verdicts and Settlements

Here are some of the verdicts and settlements that have been obtained for clients of the Law Offices of Kenneth A. Wilhelm:

  • $3,900,000 in a medical malpractice case where a hospital failed to monitor a patient’s vital signs while she was under anesthesia for a nose operation. The hospital also provided the wrong anesthesia to the patient, which resulted in her untimely death on the operating table.
  • $1,400,000 settlement in a medical malpractice case where a woman died during childbirth.
  • $1,100,000 for the family of a man killed in a Long Island car accident.
  • $900,000 for the estate of a man who was fatally injured after falling five floors in a scaffolding accident.
  • $682,000 for a pedestrian who was hit and killed by a FedEx truck while crossing against a red light.
  • $650,000 for the family of a man who went in to a medical facility for a routine procedure, but died due to a medical error. We were able to recover this amount for the client’s family members although there was little or no proof of money loss for his family because the client had not reported any earned income prior to his death.
  • $600,000 for the family of a man who died in a bicycle accident after he rode his bike through a red light at an intersection. We made this recovery despite the fact that the deceased bicyclist was found to have had marijuana in his system.

Compensation for Victims

If you have lost a loved one as a result of someone else’s negligence or wrongdoing, the experienced New York wrongful death lawyer with the Law Offices of Kenneth A. Wilhelm can help you better understand your legal rights and options. Please contact us TOLL FREE 24 hours a day, 7 days a week at 1-800-WORK-4-YOU (1-800-967-5496). WE CAN EVEN COME TO YOU. There is no attorneys’ fee unless we recover money for you. We can also help with personal injury cases in New Jersey, Connecticut, Pennsylvania, or Florida. If you have been seriously injured in any of the 50 U.S. states, please call us and we will try to help you with your case.

Other TOLL FREE phone numbers for us are:

1-800-RADIO-LAW, 1-888-WYPADEK, OR 1-800-LAS-LEYES

Please visit us at: www.WORK4YOULAW.com