Losing a loved one because of someone else’s wrongful conduct is an unimaginable tragedy. New York law allows eligible survivors to seek monetary compensation for their losses. However, these cases are complex, so it’s critical to work with a wrongful death attorney.
The Syracuse wrongful death lawyers at Carden Dotzler Hammond, PLLC advocate for families who have lost someone due to another party’s negligent or intentional actions. Here we take a look at how to file a wrongful death lawsuit and what you need to know about these cases.
What is Wrongful Death?
A wrongful death is any loss of human life resulting from another party’s negligent acts or omissions. These cases exist where a victim died because someone else either intentionally harmed them or failed to take reasonable measures to prevent their death.
Wrongful death is like an extension of personal injury law that applies if the victim dies from their injuries. In New York, deaths from car accidents are common examples. If the accident resulted from drunk driving, for instance, the driver might be liable for the victim’s death.
Steps to File a Wrongful Death Claim in New York
Seeking wrongful death compensation is a challenging process, made all the more difficult because of the sudden grief and financial impact of losing a loved one. Working with a skilled Syracuse wrongful death attorney, you can file and pursue a strong claim as follows:
Step 1: Appoint a personal representative of estate
New York law only allows the personal representative of the decedent’s estate to file a wrongful death claim. Here is how to appoint that person:
- Determine whether there is a will: If so, then there should be a named executor. If not, then a close family member like a child, parent, or spouse can serve as the estate administrator.
- Petition the probate court: Either the executor or administrator must file a petition with the probate court. They should have certain supporting documents like the victim’s death certificate and the last will and testament. Ask a Syracuse wrongful death lawyer for more information.
- Receive formal appointment: The probate court will issue either letters testamentary (if there is a will) or letters of administration (if there is not). This step is critical because it officially names the personal representative and grants them authority to act on behalf of the decedent’s estate.
These steps are important to take care of first because there will be other estate duties, besides filing a wrongful death lawsuit, that the personal representative must handle.
Step 2: Collect the evidence
Next, the personal representative should start gathering evidence that proves how the death occurred and why it points to negligence. The plaintiff in a wrongful death lawsuit has the burden of proof. Work with your attorney to develop compelling evidence, such as:
- Police or accident reports
- Physical evidence, like car accident debris
- Photos and videos
- Eyewitness statements
You will also need evidence related to the damages portion of your claim. This may include the victim’s final medical bills, their funeral expenses, and more. It’s the plaintiff’s duty to prove the nature and amount of their losses in a wrongful death lawsuit.
Later, after a lawsuit is filed, your lawyer can use discovery to obtain more evidence. For example, if your loved one died in a distracted driving accident, you can use discovery to access the at-fault driver’s phone records. These may indicate illegal use of the phone while driving.
Step 3: File and serve the lawsuit
Let a Syracuse wrongful death lawyer draft and file your lawsuit in accordance with applicable New York civil procedure rules. Your attorney will then serve it on all named defendants and manage additional pleadings, filings, and related matters.
Step 4: Consult expert witnesses
Expert witnesses are individuals with highly specialized or technical knowledge that can testify concerning complex subjects. They can testify to various elements of your wrongful death claim, such as how the fatal accident occurred and why it indicates negligence.
Your lawyer will advise as to whether your case can benefit from expert witness testimony. Our firm has a reliable network of experts in Syracuse and elsewhere who can testify concerning an array of matters.
Step 5: Settlement or trial
There is a good chance your case will settle out of court, saving you and your family considerable time and heartache. We negotiate on behalf of our clients, typically through mediation, to reach an out-of-court resolution if possible.
However, we are not afraid to take your case to trial if necessary. We will review the final settlement offer from the insurance companies and then advise as to whether we recommend accepting it or trying your case.
Possible Compensation in a Syracuse Wrongful Death Matter
Every wrongful death lawsuit is unique in terms of the nature and amount of available compensation, known as damages. In most cases, plaintiffs can seek money to cover:
- Funeral and burial expenses
- The deceased’s medical and healthcare expenses
- Lost wages and income
- Lost inheritance
- The deceased’s pain and suffering
- Loss of support and services
- Loss of parental nurturing, guidance, and education
- Loss of companionship
Order of Compensation for a Wrongful Death Claim
Any compensation that you and your family win or settle by way of your wrongful death lawsuit will get distributed as follows:
- If the deceased has a surviving spouse and surviving children, they recover compensation
- If the deceased has a surviving spouse but no surviving children, the spouse recovers compensation
- If the deceased has surviving children but no surviving spouse, the children collect the compensation
- If there is no surviving spouse and no surviving children, the deceased’s parents recover compensation
- If there is no surviving spouse and no surviving children or parents, the deceased’s living siblings collect compensation
- If no surviving spouse, children, parents, or siblings exist, the deceased’s grandparents may collect compensation
Compassionate Legal Service When Your Family Needs it Most
We understand the emotional difficulties of losing your loved one, which is why you need professional, compassionate legal counsel. But you should not delay, because in most cases a plaintiff only has two years from the date of the deceased victim’s death to file a lawsuit.
To get started with your claim or to learn more about Syracuse wrongful death matters, contact CDH Law and schedule your initial consultation.