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Last week I received a call from a current client regarding the unexpected death of his brother who was involved in a terrible car accident. My client’s brother was 41 years old, married, and had 3 children. The entire family seemed to be in a state of shock and my client was calling to ask if there was anything I might be able to do to help.

It’s important to understand that there are limits to what can be recovered in a personal injury lawsuit when a close family member has died in an accident. The specifics of the accident are not important to the point I am making here – this is not a question of who is at fault, or how the accident happened. It is a matter of properly understanding what it means to bring a lawsuit for ‘wrongful death’ and what types of damages can be recovered.

Simply stated, money damages in a wrongful death lawsuit under New York law are limited to pecuniary loss with respect to the injuries suffered by the victim; there is no remedy for the sadness and despair that a family member feels when someone close to them dies.

I think the reason people sometimes get confused is because they hear that a lawsuit allows a plaintiff to recover damages for pain and suffering. Pain and suffered can be included as damages in a personal injury lawsuit but this only covers or refers to the pain and suffering directly experienced by the accident victim. In the case of an accident, pain and suffering would only be included in a damage award if the victim had any awareness of the injury prior to death. 

Think of it this way, a wrongful death case belongs to the dependents and can be brought by them to recover pecuniary loss resulting from the death of a close family member. A claim for pain and suffering belongs to the deceased him/herself, to the extent he or she suffered before dying.

In New York, the pecuniary loss that may be recovered in a wrongful death lawsuit is defined as the economic detriment that occurs as a direct result of a person’s death.  These pecuniary losses can include:

  • the medical costs that the deceased victim incurred as a result of the injury prior to death
  • funeral and burial costs
  • loss of the deceased person’s expected future income
  • value of the services that the deceased would have provided

In order to hold a negligent party liable in a wrongful death claim, the estate of the deceased must bring a lawsuit within two years.  Most commonly, the spouse and the children of the deceased are the individuals are within the class of dependents that may recover money.

Sadly, as I had to explain to my client, no matter how much pain and loss the family was experiencing, that pain and loss would not be considered part of what could be recovered as damages in a wrongful death lawsuit. Understanding there are limits to what can be recovered in any personal injury lawsuit, and that a court of law can never undo the damage that has been done by the negligence of a third party, it has nonetheless been my experience that the interests of justice can be well served in the recovery that the law does provide for, limited though it is to the form of damages for pecuniary loss.


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