In New York, when a person dies due to another party’s wrongful actions, the law provides for two distinct types of legal claims: (1) a wrongful death claim and (2) a conscious pain and suffering claim, also known as a survivor’s or survivorship claim. These two claims each seek wholly different damages. Both the wrongful death and the conscious pain and suffering claims are brought by the administrator of the estate or executor of the Will, and for both claims you must prove that the death was caused by another party’s negligence, recklessness, or intentional wrongful act. But here is how they differ:
Wrongful Death Claim
The Statute of Limitations: It is usually (but not always!) two years from the date of death.
Damages: A wrongful death claim compensates the ECONOMIC loss of the close family members (surviving spouse, children, or other close relatives) due to the death. This claim seeks to compensate the survivors for the economic losses incurred as a result of the decedent’s death (e.g., loss of financial support the deceased would have provided to each family member but for his untimely death, the value of the household services the decedent would have provided to the family but for his/her death, funeral and burial expenses, and medical expenses incurred before death). While New York law does not allow for compensation for grief or emotional distress, it does permit recovery for the loss of “companionship, guidance, and care”, especially for young children, that the deceased would have provided. A wrongful death claim does not compensate for the pain and suffering of the deceased. Instead, that loss is recovered in a “survivorship” a/k/a “conscious pain and suffering” claim, discussed below.
Conscious Pain and Suffering Claim (Survivorship Claim)
The Statute of Limitations: it is usually (but not always) three years from the date of the injury.
Damages: Compensation for the pain and suffering the deceased experienced before his or her death. This claim is distinct from a wrongful death claim and is governed by New York’s EPTL § 11-3.2. The key elements of damages for conscious pain and suffering claim are:
- Decedent’s Experience of Pain and Suffering: The claim is based on the pain and suffering that the deceased consciously experienced from the time of the injury until their death. The claimant must provide evidence that the deceased was aware of the pain or injury.
- Duration and Severity of the Pain and Suffering: The duration and severity of the pain and suffering are critical factors in determining the amount of compensation. Even if the period was brief, if the pain and suffering were intense, the claim could be significant.
- “Pre-Impact Terror”: If the decedent was aware of impending doom or death because of the injury or accident before he lost consciousness, this is also claimable as conscious pain and suffering. For example, if the decedent had several seconds to realize the oncoming vehicle was going to hit him head on, those few seconds of “terror” are compensable.
Summary of Similarities/Differences Between the Two Claims
- Who Files Claim: Both claims are filed by the personal representative of the estate.
- What Must Be Proved for Liability: For both claims, you must prove the defendant(s) wrongfully (through negligence, intentional acts, or otherwise) caused the death.
- Statute of Limitations: For wrongful death claims, it is usually two years from the date of death, whereas for conscious pain and suffering claim, it is usually three years from the date of the injury.
- Damages: A wrongful death claim compensates the survivors for their individual economic losses, while a conscious pain and suffering claim compensates the estate as a whole for the decedent’s own suffering. For wrongful death claims, beneficiaries are the close family members themselves, while the estate as a whole benefits from conscious pain and suffering claims. The damages for the conscious pain and suffering claim go to the “estate” and are distributed to the family members pursuant to the Last Will and Testament of the decedent, just like any other asset of the decedent’s, or if there is no Will, then pursuant to the New York rules for intestate estate distribution.
Conclusion
Both wrongful death and conscious pain and suffering claims provide essential avenues for seeking justice and compensation following the tragic loss of a loved one. Understanding the differences between these claims is crucial for ensuring that all potential damages are adequately addressed and that the responsible parties are held accountable. In New York, consulting with a knowledgeable attorney can help navigate these complex legal waters and secure the appropriate compensation for the losses suffered.
Keep safe!
Mike Bersani
Email me at: bersani@mbk-law.com I’d love to hear from you!
Michaels Bersani Kalabanka P.C.
Syracuse NY Wrongful Death Lawyers
315-253-3293