Damages for Wrongful Death in NY; What Damages are Recoverable?

Damages in a wrongful death case can be both substantial and complex in terms of the damages that are recoverable.  If you have lost a loved one – such as a parent or child – it’s important to retain experienced New York wrongful death lawyers who can not only help establish a case for liability, but who can also ensure that all types of covered damages are properly requested in a wrongful death trial or settlement.

Many types of damages – such as loss of companionship – are not easily measurable.  It is therefore our job to ensure that jurors understand exactly how the loss of a loved one will impact their family and their family’s struggle to continue without their loved one.

Other damages – such as loss of future income – can be highly speculative.  If a person suffers a wrongful death early in their career, there is not any specific amount of income that can be shown that the person would have earned.  Instead, we must retain economists and others who can show with what they earnings of the decdent likely would have been had they not died.

The following are general types of compensation that are often available in wrongful death cases:

  • Direct Damages: Medical bills, funeral costs, and similar expenses.
  • Pain and suffering incurred by the decedent prior to death.  In addition to physical pain, damages for psychological pain are also recoverable, such as the fear of imminent death.
  • Loss of Future Earnings and Benefits: What the person who died would have earned if he or she had lived and had continued working to a normal retirement age, as well as associated benefit entitlements.  .
  • Loss of Companionship:  The loss associated with the companionship that the decedent could have provided to spousal and family relationships, such as serving as a parent for minor children.
  • Punitive Damages: In certain cases in which the defendant’s conduct is found to be outrageous, punitive damages may be awarded, which are designed to punish the defendant for the outrageous conduct, and to deter others from acting similarly.

Calculating  Damages in a Wrongful Death Case

It’s critical to seek an experienced attorney in a wrongful death case who will know how to properly include and make a claim for all damages that are legally recoverable.  As noted above, some damages (like pain and suffering and lost wages) require a careful presentation to a jury so that they understand the full measure of the loss sustained.  Others, including experts such as economists who will be able to calculate lost wages with a professional degree of certainty, may also be required.

Financial Dependence

If the decedent was married, had minor children at the time of death, and contributed significantly to the household income, the decedent’s spouse and children likely were very dependent upon the decedent’s financial contributions.  Additionally, if the decedent supported others (such as aging parents), these people might also have a claim based upon their dependence upon the decedent for financial support.

Relationship with the Decedent

One aspect involved in a wrongful death lawsuit is loss of companionship.  A spouse who had a loving, close relationship with the decedent will normally be entitled to much more in damages than a spouse who was legally separated from a decedent at the time of death.  Similar other family relationships will also likely be considered.

Future Earnings

Future earnings are often proven based upon an economist or other expert in salaries and earnings.  While there will always be uncertainty in terms what a decedent may have earned, a professional can offer an opinion in terms of what an average person would have earned if the person was in the same position as a the decedent; making assumptions for expected increases in wages or salary as well as likely promotions.

To make these calculations the decedent must have already been employed in the field for which the earnings are anticipated.   As a result, if the decedent had not yet entered the field (such as if the decedent was in college and planning on being a doctor), the intended field of employment likely will not be used.

Calculations for lost wages can be difficult for many cases.  In some occupations, such as teaching in a local school district, the future income may be fairly easy to estimate, as wages and salaries are often set based upon the number of years of service.  Lost income for other occupations may be much more difficult to estimate.  For example, a young surgeon finishing a medical residency may be expected to have an astronomical increase in salary within a few years, which then may continue for several decades.

In determining lost earnings, we always want to take a look at the earnings potential that the decedent would have made if he or she would have lived.  We work with our experts to make sure that they have all the facts and information available upon which to base their opinion.

Comparative Fault

If the decedent or parties other than the defendant were partly at fault for the accident, a damage award may be reduced by the fault percentages attributable to the decedent or such other parties.

Determining the Present Value of Lost Earnings

Whenever future payments are calculated (such as future salary payments or retirement benefits), these payments are adjusted to present value by discounting such payment.  The more distant the payments are, the more that they will be discounted.

Distribution of Damages to Beneficiaries

As experienced New York wrongful death lawyers, we can advise how a settlement or award is likely to be distributed.  In general, damages for pain and suffering experienced by the decedent inure to the estate, and thus are distributed in accordance with the will of the decedent (if the decedent left a will) or in accordance with intestate distribution laws (if now will was left).

Other damages are likely to be specifically allocated by a jury award.  For instance, a jury may determine that a surviving spouse is due a certain amount for loss of companionship, while minor children are due a different amount.


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