Bronx Wrongful Death Attorney
When you lose a loved one due to the actions of another, you need financial compensation to replace their lost economic contributions. Your loved one also might have provided household services you need to replace. Of course, you lost the love and affection they provided you.
And most importantly, you need justice. You need to feel that the person or business that caused your loved one’s death paid for their actions. You need them to compensate you for your losses and your relative’s suffering.
The mechanism attorneys use to meet all these needs is a wrongful death lawsuit. A Bronx wrongful death attorney from the Law Offices of Ivan M. Diamond fights for you and your loved one. To discuss your loved one’s accident and who might have caused it, contact our Bronx personal injury lawyers for a free case evaluation.
What Is a Wrongful Death?
“Wrongful death” roughly equals “preventable death.” The term usually covers any death that happened due to the actions of others. Action or inaction by a person or business that caused a fatal injury might create legal liability for wrongful death.
Under common law, a person’s legal claims would die with them. This unfairness led to a contradictory situation where someone could get sued for causing an injury but not a death. Anyone who knew the law knew that the best way to escape civil liability was to ensure the victim died.
To remedy this injustice, states like New York passed laws creating wrongful death claims. Under this claim, the victim’s estate or survivors (depending on the state) had a claim for wrongful death against the person or business responsible for the victim’s death.
Causes of Wrongful Death
Unintentional deaths happen often. Between 5,000 and 6,000 New Yorkers die every year from unintentional injuries. These statistics give a rate of about 34 unintentional injury deaths per 100,000 New York residents.
Across the U.S., about 200,000 people die from unintentional injuries every year.
The most common causes of unintentional death include:
- Poisonings, including unintentional drug overdoses
- Motor vehicle accidents
- Slip and fall accidents
These six causes account for over 90 percent of accidental deaths.
A wrongful death can also happen at the hands of other people. Fights, nursing home negligence, child neglect, and medical malpractice can cause avoidable fatal injuries. Even murder can support a wrongful death claim.
Parties Liable for Wrongful Deaths
As you read through the examples of causes of preventable deaths, you may have thought about the parties that could be held responsible for them.
People bear responsibility for their acts and omissions. Whether the actions were intentional, like a bar fight that got out of hand, or negligent, like a distracted driving accident, liability usually falls on the person who caused the harm.
Thus, a negligent driver who runs a red light and crashes into a motorcyclist bears liability for the motorcyclist’s death.
But sometimes, a party might bear liability for another’s actions. A dog owner bears liability for injuries caused by dog attacks. Parents might be liable for harm caused by their children.
And most importantly, businesses can bear responsibility for the actions of their employees. If an employee kills someone in the course and scope of their employment, the employee will usually not face liability. Instead, the employer may be held liable for the resulting death.
For example, a defective product could reach the marketplace and kill the product’s users. An amusement park could skimp on maintenance, and the resulting accident could cause multiple deaths. A pedestrian could get crushed by an unsecured load on a semi-truck that breaks loose.
All of these deaths resulted from an employee’s error. But rather than suing the employee, the victim’s family will likely go after the employer using a legal principle called vicarious liability. In this case, the employer is vicariously liable for the employee’s actions.
Proving a Wrongful Death Claim
Any action that could trigger a personal injury claim can also cause a wrongful death claim if the victim dies. You can think of the wrongful death statute as carrying forward a personal injury claim that would have otherwise expired with the victim’s death.
As a result, New York’s wrongful death statute requires you to have a legal theory that explains why you blame the other party for your loved one’s loss.
Some examples of personal injury claims that could become wrongful death claims include:
Most wrongful death claims fall under negligence. Negligence happens when someone breaches a duty of care owed to the deceased person.
Some claims where you might allege negligence include:
- Car accidents
- Truck accidents
- Motorcycle accidents
- Pedestrian accidents
- Bicycle accidents
- Medical malpractice
- Nursing home negligenced
- Slip and fall accidents
- Premises liability
If all of these types of accidents, you must prove four elements to win your wrongful death case:
- Duty of care to the deceased person
- Breach of the duty of care
- A causal link between the breach and the damages
The most common example of negligence happens in a traffic accident. All drivers have a legal duty to drive with reasonable care. When drivers violate traffic laws or customs, they violate that duty.
When that violation causes a collision, you can sue for the resulting damages. Under New York’s wrongful death laws, those damages include the losses resulting from your loved one’s death in a traffic accident.
Intentional acts that result in a fatality can also support a wrongful death lawsuit. Intentional acts that cause deaths can also trigger criminal charges.
But a wrongful death claim differs from homicide charges in a few ways:
- The government brings homicide charges, but the deceased person’s executor brings a wrongful death lawsuit
- Homicide charges can result in imprisonment, while wrongful death lawsuits can result in monetary damages
- To win a homicide case, prosecutors must prove their case beyond a reasonable doubt
- To win a wrongful death lawsuit, a wrongful death attorney only needs to persuade a jury by a preponderance of the evidence
The last point is important. “Beyond a reasonable doubt” means that a jury must be reasonably certain that the criminal defendant committed the homicide for a conviction. “A preponderance of the evidence” means that a jury only needs to believe it is more likely than not that the civil defendant caused the death.
If you want to think of it in terms of percentages, a jury must be 100 percent certain for a criminal conviction but only 51 percent certain for a civil verdict. This difference explains why some high-profile deaths resulted in a criminal acquittal in a murder trial but a damage award in a later wrongful death lawsuit.
Criminal acts that can provide the basis for a wrongful death lawsuit include:
- Vehicular homicide
- Terrorist acts
To win a wrongful death lawsuit resulting from a criminal act, you need to prove that the at-fault party intended to cause harmful contact with the deceased person. The intent for a wrongful death case does not require the intent to cause the death. Instead, you only need to prove their intent to perform the action that resulted in death.
Thus, if the other party got upset at your loved one and threw a rock at them, it does not matter if they meant to scare them, injure them, or kill them. Proving they meant to throw the rock at the victim will probably be enough.
In negligence, you must show the negligent party knew or should have known their actions breached their duty of care. For intentional acts, you must prove the other party’s intentions.
Strict liability means that you do not need to prove the other party’s knowledge or intent. This means you only need to prove the existence of the harm and a causal link between the harm and your loved one’s death.
The most important type of case that uses strict liability is product liability. When your loved one was killed by a dangerously defective product, your wrongful death attorney will need to prove the product contained a defect and that the defect caused the death.
Products can have three types of defects:
- Design defects render the product unsafe for all uses
- Manufacturing defects render an otherwise safe product dangerous as it was made
- Warning defects fail to warn of dangers or explain how to use a product safely
Some examples of defective products that can cause death include:
- Toxic substances like asbestos
- Tires that suffer tread separation
- Automobile airbag inflators that explode
- Dangerous drugs
- Defective medical devices
All of these dangerous products have killed New York residents and have been the subject of wrongful death lawsuits.
Who Files a Lawsuit for Wrongful Death?
Under New York law, the deceased person’s personal representative, also called an executor, files a wrongful death lawsuit. The deceased person’s will names the personal representative; a probate judge can also appoint them.
The personal representative acts on behalf of the estate and the survivors. They hire a wrongful death lawyer. They also make the decisions that affect the course of the lawsuit, including whether to settle the case.
At the end of the case, the survivors divide the settlement or damage award. New York’s legislature recently amended its wrongful death laws, but New York’s governor has not yet signed it.
If the governor signs the bill, the survivors eligible for a share of wrongful death proceeds will include:
- Spouse or domestic partner
- Other close family members
The amendment expands the relatives who are entitled to receive a share of the damages but still requires that they have a family or domestic relationship with the deceased person. In other words, friends without a domestic or familial relationship cannot claim a share of the damages.
The probate court decides how the compensation from a wrongful death case gets distributed. Under New York law, the court first reimburses relatives and the estate for any amounts they paid for medical care and funeral expenses. The remaining amount gets divided among the family members based on the losses they suffered due to the death.
Damages Recoverable for a Wrongful Death
New York law currently allows a wrongful death lawyer to seek only pecuniary damages. These damages account for only the monetary losses suffered due to the victim’s death.
Examples of pecuniary damages include:
- Medical expenses
- Funeral and burial expenses
- Lost income
- Cost of replacement household services
But the same amendment discussed previously will also expand the damages a wrongful death attorney can seek in a case. After the governor signs the amendment, the personal representative can seek both pecuniary and emotional damages in a lawsuit.
The amendment to the statute provides a list of the damages available after the amendment goes into effect:
- Reasonable funeral expenses incurred by the family
- Reasonable medical care expenses for the injury that caused the death
- Loss of services, support, and assistance
- Diminishment of inheritance
- Grief or anguish caused by the death
- Loss of love, society, companionship, comfort, protection, and consortium
- Loss of education, training, guidance, counsel, nurture, and advice
These categories of damages allowed in Bronx wrongful death cases cover many of the financial and emotional losses you might experience after losing a loved one. With the amendment, a wrongful death attorney can present to a jury both financial records and your testimony about your relationship to get a fair and just damage award.
Hiring a Bronx Wrongful Death Lawyer
A wrongful death lawyer provides important legal advice during an emotional time. To win a wrongful death case, you need to prove that those responsible for your loved one’s death bear legal liability for the resulting damages. An experienced attorney knows the law and how to gather the evidence you need to prove your case.
To discuss your loved one’s death and the legal rights you have to pursue compensation from those who caused it, contact the Law Offices of Ivan M. Diamond at (718) 588-2000 for a free consultation with a Bronx wrongful death lawyer.
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The Law Offices of Ivan M. Diamond888 Grand Concourse #1L Bronx, NY 10451 Phone: (718) 588-2000 Ivan M. Diamond is available for home and hospital visits, as well as weekend and evening appointments.
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