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Halperin, Halperin & Weiskopf, PLLC

212-935-2600

New York Wrongful Death Attorney

When the life of a loved one has been suddenly extinguished, it can be natural to ask questions—and to have concerns. Unfortunately, each year, more than 100,000 Americans die as a result of medical negligence, with hundreds of thousands of additional lives lost due to drunk or drugged driving, assault, and other actions that can form the basis of a wrongful death lawsuit.

If your loved one’s life was lost because of another person’s negligent or reckless behavior, it’s important for you to quickly take all necessary steps to preserve your legal claim. Learn more about your rights under New York’s laws and how a wrongful death attorney at Halperin, Halperin & Weiskopf, PLLC. can fight for them.

What Constitutes Wrongful Death in New York?

Generally, a wrongful death lawsuit may be brought in any situation in which the deceased person could have if they had lived, filed a personal injury lawsuit. And in some cases, what began as a personal injury lawsuit may later be converted to a wrongful death lawsuit after the plaintiff succumbs to their injuries. Because a loved one’s death naturally has far more of an impact on the surviving family members than a temporary or personal disability, wrongful death cases often involve larger sums of money and a wider scope of categories for which damages may be awarded.

What Categories of Cases Does a Wrongful Death Attorney Handle?

Here at H=Halperin, Halperin & Weiskopf, we handle a broad range of wrongful death cases, including:

Though many of our wrongful death cases fall into one of the above categories, this isn’t an exhaustive list; if you feel your relative was killed as a result of someone else’s negligence, talk to one of our attorneys to thoroughly explore your options.

Who Can Sue for Wrongful Death?

Though a wrongful death action can be maintained even after the victim’s death, not everyone has the capacity (known as “standing”) to sue. The only family members permitted to recover damages in a wrongful death claim under New York law include the deceased person’s spouse, children, other legal dependents, and, in some cases, the deceased person’s parents or siblings. The wrongful death claim is generally brought on behalf of the decedent’s estate, with the executor or administrator of the estate as the named plaintiff.

For example, if an unmarried 21-year-old college student dies during a medical procedure, his or her parents may sue the physician for wrongful death. However, if the same 21-year-old college student is married or has a child at the time of their death, the decedent’s parents can’t sue; the wrongful death lawsuit instead belongs only to the surviving spouse or child. If the 21-year-old student has no surviving parents, spouse, or children, the lawsuit may be maintained by the next closest relative, usually a sibling.

What Must the Plaintiff Prove?

To prevail in a wrongful death claim, the plaintiff must prove, by a preponderance of the evidence, the following four elements:

  • The defendant owed the deceased a legal obligation or duty of care (such as the duty to perform a medical procedure with proper care, to operate their automobile safely on public roads, or to correct hazards on their property);
  • The defendant breached this duty of care (using the “what would a reasonable person do?” or “what would a reasonable medical professional do?” analysis);
  • This breach resulted in the decedent’s death; and
  • The decedent’s death resulted in some tangible damages like lost wages, medical bills, and pain and suffering.

It’s necessary to prove each of these elements; even if you have an ironclad case as to two or three of the elements, without the fourth, you can’t recover damages. For instance, even if you establish that the defendant’s negligence directly caused your loved one’s death unless you can show that you’ve suffered damages from this loss, there is no basis for recovery.

What Damages Can Be Recovered?

Two main categories of financial damages can be awarded in a wrongful death lawsuit: economic and non-economic damages. As the name implies, economic damages are those that can be easily identified and quantified, like funeral expenses, medical bills, and property damage. Other economic damages that may be a bit more difficult to quantify include lost wages and loss of support, which can involve assessing the decedent’s likely lifetime earnings, the cost associated with delegating or hiring out the tasks the decedent was responsible for doing, and the value of pension, health insurance, or other fringe benefits.

Non-economic damages, on the other hand, can encompass valid but intangible losses like the decedent’s pain and suffering, loss of consortium, and emotional distress. Pain and suffering damages don’t need to be based on economic loss, and forensic medical experts can identify and quantify the degree of pain the decedent experienced before his or her death. For example, the surviving family members of someone who was killed on impact in a car crash may not be eligible to recover as much in pain and suffering damages as the surviving family members of someone who died of cancer after a physician’s misdiagnosis.

Damages for emotional distress can be trickier to navigate. New York state law doesn’t generally allow plaintiffs to recover damages for the emotional distress of losing a loved one. However, there is one exception, often deemed the “zone of danger” exception. If a family member was in the “zone of danger” around the accident and actually witnessed or experienced the accident, they could be entitled to emotional distress damages. One tragically frequent example is that of a parent who witnesses their child dart into the road to be struck by a speeding driver.

Our wrongful death attorneys are experienced in calculating these damages to ensure that you don’t accept a settlement offer that doesn’t fairly compensate you for your loss.

What Should You Know About the Wrongful Death Statute of Limitations?

All states, including New York, have strict statutes of limitations that can cause a lawsuit to expire. Absent one of the exceptions outlined below, a lawsuit that is filed outside the prescribed limitations period must be dismissed, even if it otherwise makes a valid claim. In New York, a wrongful death lawsuit must be filed within two years of the decedent’s death.

As with just about every legal rule, there are some exceptions. Generally, the statute of limitations begins running as soon as the decedent passes away. However, there are some situations in which the decedent’s surviving family members might have no reason to suspect that their loved one’s death was the result of negligence (and therefore, aren’t aware that they can or should sue). The statute of limitations will only begin to run when the surviving family member learned (or should have learned) that their loved one’s death was an untimely one due to negligence.

This statute of limitations does not mean you need to have an ironclad case before you file—your complaint needs to allege only that the defendant breached a legal duty owed to your loved one, causing your loved one’s death in the process, and that this death led to financial damages. Further facts supporting your claims can be gathered during the formal discovery process.

Could Comparative Negligence Jeopardize a Wrongful Death Claim?

Under New York law, liability is proportionally allocated to everyone who shares blame for an accident. This means that if your loved one’s negligence contributed to their death, any damages awarded to the estate may be reduced by the percentage your loved one was deemed at fault. One common example involves auto accidents—what could be a $1 million recovery if the at-fault driver was 100 percent at fault may be reduced to $750,000 if a jury finds that your loved one was 25 percent responsible (by, for example, being on their phone, failing to yield, or having drugs or alcohol in their system). And if the decedent is found to be more than 50 percent at fault for the accident that led to their death, no recovery is available.

But absent a 50 percent finding of fault, even if comparative negligence does become an issue in your case, it should only affect damages—not liability. An experienced wrongful death attorney can help gather and prepare the evidence you’ll need to fight back against allegations of comparative negligence and secure a fair judgment or settlement.

Why Choose Halperin, Halperin & Weiskopf, PLLC. For Your Wrongful Death Claim?

An experienced wrongful death attorney at Halperin, Halperin & Weiskopf has handled multiple wrongful death cases and is well-versed on the ins and outs of New York’s unique wrongful death laws. We’ll help you gather the materials you need to make the strongest possible claim, and our attorneys are certain to handle your case with the care and diligence it deserves. Our results speak for themselves.

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