How To Get Compensation For Wrongful Death After A Drowning Accident

Drowning Accidents and Wrongful Death Damages

Standing in Wrongful Death Claims

In New York State, only the executor of the decedent’s estate has standing to file a wrongful death lawsuit. The executor is the person, or party, who has been nominated to initiate probate, manage estate assets, and distribute inheritances. Executors are often nominated in a last will and testament, but they may be appointed by a surrogate’s court if no will and testament was executed.

Potential Wrongful Death Damages in New York

Wrongful death claims are typically filed in a New York Supreme Court.

If a court finds the defendant liable for your loved one’s death, it may award compensation in the form of damages. In a legal context, “damages” simply refers to compensation for certain types of loss. Wrongful death claims are usually eligible for the following types of damages:

1. Economic damages: Economic damages compensate existing and anticipated financial loss. Your economic damages could include repayment of your loved one’s medical expenses or replacement for the income they would have earned had they survived.

2. Noneconomic damages: Noneconomic damages compensate less-tangible forms of loss. In New York, pain and suffering damages can only be awarded for the deceased person’s conscious distress. However, surviving spouses, children, and parents may be entitled to receive compensation for the loss of certain household services.

3. Punitive damages: Economic and noneconomic damages are termed “compensatory damages” because they compensate for loss. Punitive damages, in contrast, are levied only as punishment and may be awarded only if the defendant was unusually or especially negligent.

New York does not limit damages in most wrongful death claims. However, no matter how much compensation may be paid, damages are distributed following a specific legal formula. This formula is determined by law, and it privileges certain close relatives at the expense of more distant family members.

The Distribution of Damages in Wrongful Death Claims

Although the executor is typically required to initiate proceedings, any compensation obtained from a wrongful death lawsuit will be returned to the decedent’s estate and distributed among their natural heirs. Distribution of damages is determined by N.Y. Est. Powers & Trusts Law § 4-1.1 and N.Y. Est. Powers & Trusts Law § 5-4.5. Under these laws, the allocation of compensation will follow state rules on intestacy, which means that surviving spouses, children, and other close surviving relatives will usually take precedence.

Obtaining Damages After a Fatal Drowning Accident

You can only receive wrongful death damages if your loved one’s executor files a claim in a New York Supreme Court. To obtain compensation, the executor must prove that the defendant:

1. Acted negligently;
2. Caused your loved one’s death;
3. Is liable for damages to a surviving spouse, child, or other legal heirs; and
4. The deceased person’s relatives suffered financial harm as a result of the accident.

Meeting state standards can be challenging and almost always requires some preparation.

You cannot control the distribution of damages in a wrongful death claim, but you could bolster your family’s chances of success by:

1. Reporting the death to law enforcement;
2. Documenting your correspondence with the property manager or other interested parties;
3. Preserving any evidence you have from the accident site;
4. Opening a probate claim so that an executor can be authorized or appointed; and
5. Contacting an experienced wrongful death lawyer as soon as possible.

In wrongful death claims, time is always of the essence. If you wait too long, the statute of limitations could lapse. Don’t delay: call Jed Dietrich, Esq., today at 716-839-3939 to schedule your free consultation.