Grieving Families Call on New York State

In a study conducted by New York Life, more than 2/3 of teaches reported that they either “always” or usually saw withdrawal, difficulty concentrating, absenteeism, and a decrease in academic performance in students who have lost either a parent or a sibling.[1]  When the children themselves were surveyed, many said support from family and friends waned within three months of losing their parent, but it took them more than six years to move forward.[2]

People who are in bereavement suffer many difficult symptoms, and they have to deal with these symptoms while engaging with a legal system that is unequipped to provide resources to them or their children after their losses.  In seeking to pass The Grieving Families Act, advocates are trying to reform the inadequacies of New York’s current wrongful death law.

Understanding New York’s Wrongful Death Law

In its current form, New York’s wrongful death law is a statutory act that allows a deceased person’s personal representative to bring an action for wrongful death if he pleads and proves (1) that a human being died; (2) that a wrongful act by or the neglect of the defendant caused the decedent’s death; (3) there are distributees who both survived the decedent and suffered a pecuniary loss by reason of his death; and (4) a personal representative of the decedent must be appointed.[3]  In plain English, this allows the estate of a person who was killed by another person’s wrongful act to maintain an action for wrongful death against the bad actor as long as the deceased person would have been able to maintain an action against the bad actor had the decedent not passed away.

New York’s wrongful death currently limits the available damages to compensatory damages awarded to distributees for the pecuniary loss that they suffered due to the decedent’s passing.[4]  This would allow for damages to compensate the distributee for his loss of support by the decedent and other injuries that can be measured in money, but it prohibits awarding damages for things like grief, loss of society, affection, conjugal fellowship, and loss of consortium.[5]  New York’s wrongful death law further prohibits awards of damage for the pain and suffering of the decedent.[6]

Currently, New York joins Alabama on the lonely list of states that limit recovery in wrongful death actions to economic damages.[7]  Alabama is still more restrictive than New York, for Alabama’s wrongful death statute only awards punitive damages.[8]  In Alabama, damages for wrongful death actions are not intended to compensate for the life taken nor do they consider the pecuniary loss to the claimants or their mental suffering.[9]

New York law also limits the people eligible to bring a claim for wrongful death.  Currently, only a child, parent, spouse, or the personal representative of the decedent’s estate can bring a wrongful death action.[10]

There is currently a nationwide trend towards the legislative expansion of wrongful death statutes across the United States.[11]

The Grieving Families Act: Proposed Reforms

The Grieving Families Act (the “Act”) is a piece of reform legislation intended to overhaul New York’s wrongful death system.[12]  The Act would expand both the damages that a wrongful death claimant can recover to include damages for non-economic considerations such as grief, anguish, loss of love, society, protection, comfort, companionship, and consortium.[13]  It would also expand the class of people who may seek to bring a wrongful death claim by allowing a decedent’s extended family members—such as siblings, grandparents, or cousins—to bring a claim.[14]

Ultimately, the Act recognizes that the current New York law effectively measures the value of a human life in terms of its economic production without any concern for the grief and emotional loss of the deceased person’s loved ones.[15]  The bill’s proponents further argue that it is unjust for lower-income people, many of whom are people of color, to receive substantially less in wrongful death actions by measuring the value of the claim only by the pecuniary loss infliected.

The Act has passed the New York legislature three times.  New York Governor Kathy Hochul vetoed the Act in 2022 and then vetoed a revised bill in 2023.[16]  It is expected that Governor Hochul will veto the 2024 version of the bill as well.[17]

Proponents of the Act argue that the current wrongful death statute results in discriminatory results for low-income people and those who have non-traditional family structures by providing financial relief based only on the decedent’s income/earnings.[18]  They go on to argue that the changes proposed by the Act allow non-financial contributions to be considered when assessing the value of the decedent’s life and the grief of the survivors, which would be significant for low-income households, retirees, and children who cannot contribute to the home financially.[19]

New York’s business leaders have opposed the Act based on studies from the New York Civil Justice Institute and the Empire State Chapter of Associated Builders and Contractors finding that the change would (1) increase the cost of medical professional liability insurance by 40%, (2) increase automotive insurance premiums by a total of $2.2 billion, and (3) would result in a 12% increase in annual premiums across the board.[20]  They argue this would be especially disastrous in a state like New York, where tax rates are comparatively higher than other states.

Governor Hochul, whose veto has killed two prior versions of the bill, has acknowledged that the legislation is well-intentioned, but she is unlikely to sign the third iteration of it.  Governor Hochul has expressed a willingness to compromise on a bill that would help family members who are harmed by the death of family members, but her concerns appear to be based on maintaining a sense of legal certainty as to who the proper beneficiaries would be in a wrongful death claim.[21]  Governor Hochul is also opposed to the bill on the grounds that it would increase insurance premiums and because it is vague In Its terminology, which could result in bedrock principles of the law being upended.[22]

The Human Cost of Injustice: Stories from Grieving Families

The current wrongful death law excludes people like Mr. Kurt Kiess.[23]  Mr. Kiess’s son passed away in an automotive crash where a drunk driver crashed into the Uber his son was taking.  Mr. Kiess’s son was not married, nor did he have children, and Mr. Kiess did not suffer a financial loss due to the death of his son.  Without suffering a financial loss, Mr. Kiess cannot bring a wrongful death claim on behalf of his deceased son beyond a claim for his son’s conscious pain and suffering before he died.

Ms. Shawnee Benton-Gibson is another person who has been affected by the inadequacies of the current New York law.[24]  Ms. Benton-Gibson’s daughter—Ms. Shamony Makeba Gibson—was a thirty-year-old woman who died in October 2019 after giving birth to her son two weeks earlier.  Her ability to file a wrongful death lawsuit on behalf of her daughter was frustrated by the pandemic.  Ms. Benton-Gibson believes that her daughter’s death was preventable, and now her daughter left two children behind.

Mr. Leszek Wiszowaty is another person left underserved by the current state of the law.[25]  Mr. Wiszowaty lost his eighteen-year-old son Matthew at Rockaway Beach in August of 2021.  Mr. Wiszowaty is suing the City of New York and its Department of Parks & Rec for failing to adequately staff lifeguards in the dangerously turbulent waters of Rockaway Beach.

Legal and Social Implications of Reform

The Act, now in its third iteration, poses several issues of legal significance.  The most recent version of the Act has a provision that would apply it retroactively to any cause of action accruing since July 1, 2018.[26]  Such a measure of is of dubious constitutionality, for it is undoubtedly prejudicial to defendants and their insurance carriers because the policies issued by the insurers to the defendants were formulated based on the law as it existed at the time.[27]  This means both (1) that the defendant is likely underinsured for the current risk and (2) the agreed upon premiums, which were based on the law as it existed at the time, are likely to be inadequate to cover the risk.[28]

Enacting this law to apply retroactively would expand the number of claimants and increase the recoverable damage, thereby increasing the risk exponentially.[29]  Governor Hochul has indicated that she would be amenable to signing a bill without the retroactivity provision.

But there is another issue: the bill contains a lot of vague language and procedures that need to be defined.[30]  The current bill states that a “close family member” could be eligible for compensation without defining the term “close family member.”[31]  This could result in a large group of people vying for estate damages, even if they have only a distant emotional connection to the deceased person.  Such a scenario would frustrate the entire purpose of expanding the statute and increase the time-consuming and costly discovery necessary to identify claimants.[32]  Further, the bill is silent on who is obligated to identify and notify potential claimants and does not identify how competing claims would be adjudicated.[33]

How to Get Involved in Advocacy

The Grieving Families Coalition is a New York-based advocacy group whose mission statement says they are “committed to ensuring that when loved ones are lost in senseless and tragic accidents, the state recognizes the emotional suffering of those who loved them most.”[34]  The Grieving Families Coalition is seeking help in fulfilling its mission of passing the Act by directly emailing Governor Hochul in an effort to persuade her.  If you would like to learn more about the Grieving Families Coalition then you can find their website linked here.

Conclusion

Lawyers—especially those litigating wrongful death cases and other personal injury cases—have a responsibility to advocate for public safety and for equality in the eyes of the law.  Citizens are not equal under New York’s wrongful death statute as it is currently written because the only damage awards available to them are entirely contingent upon the decedent’s financial status.  Sadly, that economic tether disproportionately harms people of color as well.

At Dansker & Aspromonte, our attorneys believe that all of our clients are entitled to equal treatment under the law.  That and the pursuit of justice on their behalf animates everything our attorneys do.  If one of your loved ones has been killed by another person’s negligent behavior then call us at (516) 206-6723 or by contacting us at our webpage, which is linked here.

[1]  Childhood grief: a pervasive problem, New York Life, https://www.newyorklife.com/assets/foundation/docs/pdfs/childhood-grief.pdf.

[2]  Childhood grief: a pervasive problem, New York Life, https://www.newyorklife.com/assets/foundation/docs/pdfs/childhood-grief.pdf.

[3]  Action by Personal Representative for Wrongful Act, Neglect, or Default Causing Death of Decedent N.Y. EPTL § 5-4.1 (2024); Chamberlain v. City of White Plains, 986 F.Supp.2d 363 (S.D.N.Y. 2013).

[4]  Abruzzo v. City of New York, 233 A.D.2d 278 (1996); Gonzalez v. New York City Housing Authority, 77 N.Y.2d 663 (1991).

[5]  Gonzalez v. New York City Housing Authority, 77 N.Y.2d 663 (1991).

[6]  Tenczar v. Milligan, 365 N.Y.S.2d 272 (1975).

[7]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[8]   Bonner v. Williams, 370 F.2d 301 (5th Cir. 1966).

[9]   Bonner v. Williams, 370 F.2d 301 (5th Cir. 1966).

[10]  Action by Personal Representative for Wrongful Act, Neglect, or Default Causing Death of Decedent N.Y. EPTL § 5-4.1 (2024).

[11]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[12]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[13]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[14]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[15]  https://hopefornyfamilies.com/#:~:text=The%20Grieving%20Families%20Coalition%20is,those%20who%20loved%20them%20most.

[16]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[17]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[18]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[19]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[20]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[21]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[22]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[23]  Lewis, Rebecca, “Amended again, Grieving Families Act set to pass and seek Hochul’s approval,” City & State New York (June 4, 2024), https://www.cityandstateny.com/policy/2024/06/amended-again-grieving-families-act-set-pass-and-seek-hochuls-approval/397114/.

[24]  Blau, Reuven, “Grieving Families Act Supporters Hope Third Time’s the Charm for Beleaguered Bill,” The City (June 3, 2024), https://www.thecity.nyc/2024/06/03/grieving-families-act-third-time-vetoed-bill/.

[25]  Blau, Reuven, “Grieving Families Act Supporters Hope Third Time’s the Charm for Beleaguered Bill,” The City (June 3, 2024), https://www.thecity.nyc/2024/06/03/grieving-families-act-third-time-vetoed-bill/.

[26]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[27]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[28]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[29]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[30]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[31]  Id.

[32]  Midgley & Potenza, The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery, Best Lawyers (May 20, 2024), https://www.bestlawyers.com/article/new-york-wrongful-death-recovery-expansion/5859.

[33]  Id.

[34]  Hope for NY Families (accessed 9/11/2024), https://hopefornyfamilies.com/#:~:text=The%20Grieving%20Families%20Coalition%20is,those%20who%20loved%20them%20most.