The same kinds of accidents that our attorneys handle day in and day out as personal injury lawyers are sometimes fatal. When a loved one is killed in an accident, you may be able to file a wrongful death claim instead.
These cases work a lot like personal injury cases, where the party being sued does not have to have done anything on purpose. The fact that they caused a deadly accident often leaves us enough evidence to hold them liable, getting you and your family damages for the loss. However, these cases and damages are often more complex than you might assume.
For help with your claim, call our wrongful death attorneys at The Carrion Law Firm at (718) 841-0083 today.
Basics of a Wrongful Death Lawsuit
When a loved one is hurt in an accident, they would normally file a personal injury case. If they die, you can pick up their case and file it instead. However, you can also file a lawsuit for your own harms.
This technically leads to two lawsuits you file together:
- A survival action to recover damages the victim could have sued for if they survived the accident
- Your wrongful death lawsuit to recover your own losses.
Elements of a Wrongful Death Case
As mentioned, the legal claim itself is essentially the same as a personal injury case: you have to prove that the defendant caused the accident and is responsible for the effects. This usually means proving negligence, though you can also sue for murder or manslaughter.
In a negligence case, there are four elements:
- The defendant owed the victim a legal duty
- The defendant breached that duty
- The breach actually caused the accident – i.e., it would not have happened without the defendant’s breach
- The victim died from the accident.
Here are three unfortunately common examples:
- If a loved one was killed in a car accident, we would point to the defendant’s driving violations, drunk driving, and other mistakes behind the wheel that caused the crash.
- If a loved one was killed in a building fire, we would show the landlord’s noncompliance with smoke detector requirements, alarm systems, fire door rules, and fire escape requirements caused that death, or that the person who started the fire was responsible.
- If a loved one was killed by a medical mistake, we would show the doctor’s care fell below the standard of care you should reasonably expect from a doctor with the required medical training and experience.
The duty in question is not always a clear-cut legal rule like a traffic law but often comes down to what is reasonable in a given situation.
Damages Available in a Wrongful Death Case
When you sue for wrongful death, there are different damages available in each of the two claims.
In a survival action, you claim damages the victim would have been able to recover if they had lived. This means getting compensation for their pre-death lost wages, medical expenses, and pain and suffering. This is really the only pain and suffering you can get in a wrongful death case, as you will see in a moment.
In the wrongful death case, you can claim the pecuniary damages your family suffers. “Pecuniary damages” essentially means economic damages – lost wages and support, medical care costs, reasonable funeral/burial expenses, and other financial losses. You cannot get pain and suffering, mental anguish, or emotional distress damages for your family, meaning that damages for your grief and lost companionship are also unavailable.
Even though damages are limited, there are vital damages you and your family may need going forward, such as the cost of burial and funeral services, end-of-life medical care, and ongoing lost earnings for a lost parent or spouse.
Suing for Deadly Car Accidents
One of the most common ways people are killed is in car accidents. These claims are often allowed to proceed straight to court despite insurance rules that might block other lawsuits.
Because of the no-fault rules in New York, you cannot sue for a crash unless there were “serious injuries.” Death or loss of a fetus always counts as a “serious injury,” allowing you to sue for a loved one’s death.
However, insurance also provides higher payouts for deadly accidents in many cases. For example, state minimum insurance usually covers $25,000 per person for injuries, but it covers up to $50,000 per person for death.
The deceased driver’s policy should also have some coverage to help the family after a deadly accident.
Suing for Murder and Manslaughter
Our wrongful death attorneys can help if a loved one was murdered or if they were killed during the commission of another crime. Often, these cases go to criminal court, where the victim might be put behind bars for a long time. However, this does not help the grieving family in the same concrete way that a wrongful death lawsuit can.
When you sue your loved one’s killer, you can get compensation to help your family moving forward. This focuses on the victim and their family, not just punishment.
Suing for Deadly Workplace Accidents
Lawsuits for work accidents are limited. You cannot sue your employer for a work accident in most cases, and the family of a worker killed on the job cannot sue the employer either. There are some exceptions, such as lawsuits based on certain safety rule violations, and our lawyers can help you bring those cases.
Otherwise, claims are often better against a negligent third party. This could allow you to sue a driver who caused a deadly accident or the manufacturer of dangerous or deadly machinery. Let our attorneys examine the case and determine the proper parties to sue.
Determining Fault in a Wrongful Death Case
As mentioned, wrongful death cases are based on a breach of duty that caused the victim’s death. To hold a person or a company responsible for the death, you need to prove that they did something wrong by breaching a legal duty.
Wrongful Acts
This breach is often referred to as a “wrongful act,” and it can come out of a car accident, a building collapse, a defective product injury, medical malpractice, or even someone hitting their head in a slip and fall. Most wrongful death claims are based on accidents, where someone’s carelessness, inattention, or even recklessness caused the accident.
Who Pays?
When you sue a defendant, they are often liable in personal capacity, but they might have insurance to cover the damages. This is common in car accidents, where auto insurance should pay, and accidents on someone else’s property, where homeowners or business liability insurance should pay.
When companies cause accidents through their employees, the company can be held liable in the worker’s place. Think, for example, of holding a trucking company or an airline responsible for an accident its workers caused or holding a manufacturer liable instead of the assembly line workers who made the defective product.
Partial Fault
When multiple parties are at fault, the court can assign a percentage of the blame to each at-fault party. They would then pay that percentage of the total damages. This can allow you to hold multiple drivers, individuals, or companies responsible for contributing to the accident.
Under New York law, you can still sue if the victim was partially at fault. This may reduce damages by the victim’s share of fault, but it does not stop lawsuits altogether.
What to Do After a Loved One Was Killed in an Accident in the Bronx
The immediate aftermath of a loved one’s deadly accident is a time for grieving. While it is certainly helpful to have a lawyer on your case as soon as you can to help collect evidence and track expenses, you should focus on your family first.
Otherwise, save any medical bills, financial records, receipts, and bills related to the accident, the funeral, etc. Our lawyers will need these later, but we can also collect additional evidence and records.
If you can, take pictures of the scene where the accident happened. Many accident scenes are cleared quickly, so we may be able to obtain images from other records, reports, or security footage instead.
If you can call us in the days following the accident, we can guide you through the entire process of what happens next, when the case is filed, what records and evidence you will need, and how to go about getting a personal representative appointed to carry out your lawsuits. We offer free case reviews, so there is no need to hesitate in calling us and learning more about what your next steps should be.
Wrongful Death FAQs in the Bronx
The following are some frequently asked questions regarding wrongful death claims under New York law:
What is the Statute of Limitations
Families have 2 years from the date of death to file a wrongful death claim. If your loved one lingered in the hospital for a while or even passed away years later because of the injuries sustained in their initial accident, we still count from the date of death, not the date of injury, for wrongful death claims.
However, the survival action usually gets 3 years from the date of the accident. Remember, this is technically a separate injury lawsuit filed after their death, so it counts from the date of injury under a different rule.
Who Files a Wrongful Death Claim?
Both the wrongful death and survival claims are filed by the victim’s personal representative. This person is often known as the executor, and they are responsible for the victim’s estate and legal affairs after their death.
The personal representative will be named in the victim’s will, if they had one. Otherwise, the probate court appoints a personal representative when you file to distribute their estate.
Typically, the personal representative is a family member or a trusted friend or attorney.
Who Gets Damages in a Wrongful Death Suit?
There are complex rules for how to distribute the damages in a wrongful death case, but rest assured that the damages usually go to the spouse and children. If the victim had no children or spouse, then the damages go to their parents.
The court can determine who gets what share of the damages depending on what expenses they paid for (e.g., medical care, funeral costs) and what share of the damages they suffered.
Our lawyers can help you determine the distribution in more complex cases.
Do I Have a Case?
As mentioned, a wrongful death case usually consists of a breach of some legal duty that causes the victim’s death. Our wrongful death attorneys can help you investigate the case and determine whether someone is responsible.
If we can find a person or company responsible for the death, we can begin building a case against them right away.
How Long Does a Wrongful Death Case Take?
When a loved one dies, it can often take months or years for the case to resolve completely. Wrongful death cases require cooperation from the probate court, where the personal representative is assigned and empowered to bring the case in the first place. Then our lawyers need to negotiate with the defense for a potential settlement.
If the case settles, it may take only a few months; if we need to take the case to trial, it could take a few years to finally get before a court and get decided by a jury.
How Much is My Case Worth?
Our attorneys cannot put a value on your case without examining the facts. Accounting for the financial damages requires us to look into the victim’s lost wages, including things like future lost promotions. Once we examine all of the damages your family faced, we can give you a better idea of the potential value of your case.
Can You Sue for Murder?
Wrongful death cases are often based on accidental deaths, but we can also file a civil case for murder, separate from any criminal cases.
Call Our Wrongful Death Lawyers in the Bronx Today
If your loved one was killed in an accident, call The Carrion Law Firm for a free case evaluation at (718) 841-0083 today.
