When Personal Injuries Result in Death: Wrongful Death Cases

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In general, a wrongful death claim is one in which it is alleged that a person died as a result of another’s negligence. The deceased person’s surviving relatives, dependents or beneficiaries may bring suit against the responsible party or parties, seeking monetary damages for their losses. Each state has its own wrongful death laws and not every state follows the same guidelines, principles or rules. A personal injury attorney from The Orlow Firm in Flushing, New York, can advise you on whether you have a valid wrongful death claim and help you pursue that claim against the responsible party or parties.

Wrongful death laws vary from state to state

Some states have “true” wrongful death acts in which the deceased person’s survivors or next of kin are entitled to bring a cause of action for their damages resulting from their family member’s death. Other states have acts that are more properly called “survival actions.” In general, survival actions are brought on behalf of the deceased person for the deceased person’s pain, suffering and other damages resulting from the injuries that caused his or her death.

The individuals who are entitled to bring a wrongful death claim also depends on the jurisdiction. Generally, the primary beneficiaries of the person who has died (often the spouse and children) are able to bring a claim, and in some states the parents of the deceased person may be also designated as beneficiaries. In most states, if the deceased person did not leave behind a husband or wife, children or parents, there may be no one who may bring a wrongful death claim.

In many jurisdictions, it is not necessary that the defendant’s conduct be the sole cause of death. Even when the defendant’s negligence contributes only in part or in tandem with other circumstances to a person’s death, liability may still attach.

Wrongful death damages

  • Types of damages. When a defendant is found legally liable for the death of another, the types of damages that may be recovered can also vary greatly. For example, the plaintiffs in a wrongful death case may be able to recover the deceased person’s medical expenses; funeral and burial expenses; lost earnings; and lost benefits (such as pension benefits or medical and health insurance coverage). Additionally, in a few states, the plaintiffs may be able to recover damages for pain and suffering or mental anguish that they experienced as a result of the death as well as punitive damages.
  • Calculating damages. The method and manner of calculating damages in a wrongful death action can be complicated. This potential complexity is especially true when trying to calculate the monetary loss to which the plaintiffs are entitled. Monetary loss, sometimes called pecuniary loss, generally includes the survivor’s lost support, contributions and services of the deceased person. The computations for these damages are typically based on the deceased person’s life expectancy and work life expectancy as well as the life expectancies of the beneficiaries and, where necessary, the remaining period of minority of any beneficiaries.
  • Multiple beneficiaries. In cases where there is more than one beneficiary, the damages will be distributed among those beneficiaries. Most states allocate the damages among the beneficiaries in accordance with their losses. However, in some states the recovery is divided as spelled out in its wrongful death or intestacy laws.

Defenses to liability in wrongful death cases

In general, a defendant is entitled to raise any defenses in a wrongful death action that could have been raised in an action brought directly by the decedent, had he or she not died. Therefore, if the decedent was contributorily negligent in causing his or her own death, the defendant may assert that defense in the wrongful death action. Also, in most states, if the decedent had already recovered damages, such as in a case where the death was not immediate and the decedent was able to bring his own successful personal injury claim, the survivors may not then successfully bring a wrongful death action and recover for the same injury. There are limitations to this prohibition, and in some situations the survivors may still be entitled to bring a wrongful death action in their names.

Contact a personal injury lawyer

When a loved one dies, the complexities of a legal claim against the wrongdoer can be overwhelming. At this already stressful and emotion-laden time, the assistance of an experienced personal injury attorney at The Orlow Firm in Flushing, New York, who can guide surviving family members through the complex legal maze and help secure compensation for their devastating losses, can be invaluable.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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Your Legal Rights When a Loved One Dies

There is nothing more terrible or heartbreaking for a parent to experience than the loss of a child. This death becomes even more difficult to understand and make peace with if it happens as a consequence of someone else’s bad acts.

Take, for example, the case of Daniel Halliday, a nine-year-old from Kingman, Arizona. Daniel died after the car he was riding in was hit by a pickup truck driven by Tina Michelle Means. Blood tests revealed that Means had a .26 blood alcohol level at the time of the crash. A jury recently sentenced her to 30 years in prison for Daniel’s death and civil lawsuits are pending.

In situations such as this, loved ones may consider filing a wrongful death suit.

About New York Wrongful Death Claims

Wrongful death claims may be filed in any situation in which one person’s negligent acts cause the death of another. This includes motor vehicle accidents, workplace accidents and deaths attributed to dangerous products, for example. Wrongful death actions may be filed against a person, business, company or other organization. For example, if a person is killed by a driver who had too much to drink at the local watering hole, then the victim’s family could possibly bring a wrongful death claim against the driver as well as the bar that furnished the alcohol to the driver.

Parties can also file wrongful death actions against a local or state government agency if a government employee is responsible for the death. This includes situations in which a government worker is driving a city-owned vehicle and causes an accident that results in the death of another person.

Wrongful death actions are meant to help family members recover some of the unexpected expenses that may come with a loved one’s untimely death, like medical bills, funeral costs and attorney fees as well as other pecuniary losses (i.e. actual monetary losses). Examples of pecuniary losses include loss of future support, loss of future services and loss of parental guidance.

If the decedent is a child, pecuniary losses can be harder to determine, but generally include things such as the parent’s current and future loss of the child’s assistance and services.

In general, wrongful death claims are not meant to help families recover for their own non-pecuniary losses, sometimes referred to as non-economic damages, like pain and suffering, emotional distress and loss of companionship and consortium.

Filing a Wrongful Death Claim

In New York, only a personal representative of the deceased may bring a wrongful death claim. Usually this is the executor of the decedent’s estate, but if there is no executor or if the executor refuses to bring the claim on the behalf of the family, then the family can petition the court to name a personal representative for them.

A cause of action for wrongful death only can be maintained if the decedent would have been able to bring a legal claim for his or her losses against the responsible party had he or she lived. For example, if the decedent was killed in a car accident by a drunk driver, the decedent would have been able to sue the drunk driver for damages had he or she lived. But if the decedent was the drunk driver and died as a result of hitting another person’s car, then a wrongful death action generally could not be brought on behalf of the decedent because the decedent’s bad acts caused the accident.

A family does not lose the right to bring a wrongful death claim if the person responsible for their loved one’s death also dies, whether as a result of the same accident or due to another cause. In these cases, the family can file the wrongful death claim against the responsible person’s estate. If the wrongful death claim is successful, then the family will be paid out of the proceeds of the estate as a creditor.

Holding Wrongdoers Accountable

There is nothing that the law can do to bring back a loved one whose life has been senselessly taken by another person. The law, however, can be used to help hold the responsible party liable for their actions and to help ease some of the grieving family’s financial burden.

For more information on pursuing a wrongful death claim, contact an experienced attorney today. Under New York law, families generally only have two years from the date of death to file a wrongful death action.

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Cyber Bullying Laws: Can They Protect Our Children?

Bullying is nothing new; ever since schoolchildren have gathered on playgrounds, youngsters have been singled out by their peers. But, some things have changed, and the disturbing new trend of cyber bullying has turned social media outlets into a hotbed of abusive electronic communications that can sweep through the internet in moments, sometimes with deadly results.

Cyber bullying can take many different forms and occurs among children and teens in a wide range of age groups. For lawmakers, addressing this dangerous trend has proven a challenge. Yet, victims and their parents are not without recourse; swift action by those harmed by cyber bullying can not only stop the cyber bully, but can enforce a culture of zero-tolerance that will ultimately benefit all.

The Cyber Bully and its Victim

One might think that cyber bullying is something that occurs only in middle and high schools throughout the country. Shockingly, the harassment sometimes continues into young adulthood, as some college-age persons play the role of the playground bully.

In a recent high-profile case, 18-year-old student Tyler Clementi leapt to his death off the George Washington Bridge after fellow students secretly filmed and streamed online footage of him involved in a homosexual encounter.

Two undergraduates, Dharun Ravi and Molly Wei, were arrested and have been charged with invasion of privacy, although investigators are considering further charges linked to the fact that the footage captured Clementi engaged in a homosexual act; Cyber bullies who choose their victims based on sexual orientation, religion, race, etc. can be charged with a hate crime, potentially a much more serious charge than invasion of privacy.

The Ugly Methods of Cyber Bullying

The Clementi case is just one example of the gravely serious consequences of cyber bullying. Cyber bullying is broadly defined as when a child, preteen, or teen is tormented, threatened, harassed, humiliated, embarrassed, or otherwise targeted by another child, preteen or teen using the internet, interactive digital technologies, or mobile phones. Adult involvement usually opens the door to other issues, like cyber harassment or cyber stalking.

It can occur in a variety of mediums, including social networking websites like Facebook and Twitter, video-sharing sites such as YouTube, through instant messaging, or via text messaging on a cell phone. As young Americans have wholeheartedly embraced social media, the prevalence of cyber bullying is perhaps unsurprising: estimates of the number of youths who experience cyber bullying range anywhere from 10 percent to 40 percent or more.

New York and Federal Law on Cyber Bullying

With the level of concern over cyber bullying on the rise, many are wondering what local lawmakers are doing to combat the problem. In New York, there are no specific laws against cyber bullying or computer harassment. Yet, at a recent vigil held in honor of Tyler Clementi, Governor Paterson vowed to pass new anti-cyber bullying legislation. Bills seeking to curb cyber bullying have been introduced in the New York legislature before, but have failed to obtain enough approval to be signed into law.

While New York has not yet addressed the phenomenon, other states have. In Connecticut, it is a misdemeanor when a person acts “with intent to harass, annoy or alarm another person” to “communicate with a person…by computer network…in a manner likely to cause annoyance or alarm.” Federal lawmakers are also trying to take action; a bill currently under consideration in the U.S. House of Representative targets harsh words on the internet.

However, even without specific cyber bullying legislation, victims and parents in New York are not without options. Many traditional torts and criminal statutes can and have been used against cyber bullies.

Causes of action such as harassment, defamation, or even wrongful death may be available for use against the cyber bully, their parents, or a school or other responsible supervisor depending upon the facts of a particular incident. As in the Clementi case, prosecutors also may be able to charge for invasion of privacy or hate crimes. The best way to find out what causes of action may be available if your child has been a victim is to contact an attorney.

What You Should Do About Cyber Bullying

Adults have a critical role to play in stopping cyber bullies. Prevention is a powerful strategy, and teaching kids that cyber bullying is not acceptable is a prudent first step. But, when bullying has already occurred, stepping in is essential.

Victims and their parents should contact an experienced New York personal injury attorney. Bullying cases are difficult to successfully pursue unless the child has experienced serious physical or documented psychological trauma as a result of traditional or cyber bullying; in these cases, financial compensation may be in order. Perhaps more importantly, a knowledgeable attorney can help parents send a strong message of zero tolerance to bullies that can save other children from similar ordeals in the future.

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