Wrongful death is a statutory limitation on the categories of recovery in an actionable event that results in death.
In other words, had the victim of the occurrence survived and had an actionable claim for personal injuries, the same basis for an actionable claim will provide a right to recover under the wrongful death laws, in the event of death.
However, the categories of recovery are limited to fair and adequate compensation for any conscious pain and suffering sustained by the decedent, medical expenses, pecuniary loss (loss of financial support to surviving members who are distributees of the estate) and loss of intellectual, moral guidance, physical training, and assistant to surviving children, as well as funeral and burial lot expenses.
The wrongful death law does not allow recovery for the death itself, nor does it permit recovery for anguish and sorrow suffered by surviving family members as a result of the death.
There have been proposals to change the New York State wrongful death laws to permit recovery for anguish and sorrow. One of the significant reasons for this attempt to change the law is fact that in the event of the wrongful death (with limited or no conscious suffering) of victims who are either children or the elderly (persons who are often not providing any financial support to survivors), the law as it is provides very little room for recovery for what really are extremely significant losses.
In the event that the decedent died without a will, an application must be made to the court to have an administrator appointed to the estate. After the administrator is appointed, the lawsuit can be brought in the name of the administrator on behalf of the estate.
In sum, as long as there would have been a cause of action had the victim survived, the same cause of action (basis for a law suit) exists in the event of death. However, the categories of recovery are limited by the New York State wrongful death laws.
The loss of a spouse, parent or loved one, is the biggest loss one can suffer, a loss that no amount of compensation can replace. The responsibility of representing an estate where a family has sustained the most significant loss one can sustain, is a significant responsibility that is not taken lightly our firm, and we will work hard to obtain the maximum recovery permitted under the law.