A National Injury Law Firm


Unique Challenges of Wrongful Death Lawsuits

Certainly the saddest types of cases we handle here at BUTTAFUOCO AND ASSOCIATES involve the death of a loved one. There is nothing in our practice more challenging or emotionally draining than being called upon to represent a grieving family when they have recently lost a beloved member of the family. We have, over the years, handled many such cases but it is still a heavy burden to bear. Even though we are highly trained professionals, we are still very much compassionate human beings and it is always difficult to try to not be emotionally affected by these tragic events. Whether the deceased (the legal term is “decedent”) is a father or a mother, a “breadwinner” of the family, or a child or an aged parent, these cases represent unique challenges to any lawyer handling what is commonly known as “WRONGFUL DEATH” lawsuits. Each case is unique because each person is unique.

These cases are largely the creature of statute. This means that there are strict statutory laws governing how these cases are handled, how they are evaluated and what each surviving family member receives. TWO separate courts are always involved in these cases instead of simply one…the Surrogate’s Court and the Supreme Court. The Surrogate’s Court is necessary to grant to surviving family members the legal authority to bring the case and then it supervises how the proceeds are paid out at the conclusion of the case. The Supreme Court is where the case is heard and litigated. These cases are truly not like regular “garden variety” personal injury cases. Often, there is certainly an injury involved but many times there is no pain or suffering and death is instantaneous or suffered while in a medicated or unconscious state. This makes the case even more challenging.

These matters are also more difficult to prove than a regular case. In a death case the decedent is not around to provide testimony as to what happened so the case has to be pieced together from external sources of evidence. There is, at least, a reduced burden of proof in these cases under what is called the “Noseworthy doctrine.”

In addition to all of this, the value of such a case is unlike what the average person might expect. One might easily think that these cases, because of the serious nature of the injury (one that results in death!) is actually the largest possible of all “injury” cases because the injury and the result is so devastatingly final. Surprisingly, that is not the case. NY and NJ have very odd (unfair, I believe) laws regarding wrongful death lawsuits. These laws only value the life of the person based on their financial contribution to their surviving family members. This is known as “pecuniary loss.” This law, which goes back to before the Civil War (to about 1840) does not take into account modern sensibilities about the true value of each person’s life. Yet, this law is still on the books. This makes the life of a non earning person unfairly minimized. A child’s life or an old person’s life is given very little value under these laws. This is very hard to explain to a family.

In a day and age where it is paramount to know that lives truly matter it seems that our own state laws in both NY and NJ do not reflect this morality. This is quite sad because the families left devastated by accidents or malpractice which result in death often have little or no legal remedy. Sometimes we cannot even accept a case because the cost of bringing the case exceeds the value of the expected proceeds. That is a terrible situation. It is also not the law in most other states. We handle such cases in all states and the result is drastically different state by state for similar cases.

“Pain and suffering” is allowed to be claimed but it is usually for a limited amount of time. Lawyers in NY and NJ are therefore forced to use creative means to “boost” the value of the case by proving things like “pre impact terror” or intense pain and suffering for very short amounts of time in a heroic effort to get justice to families who are otherwise deprived of it due to these harsh valuation laws. Our trial lawyer groups have lobbied (so far unsuccessfully) to change these laws but they are, sadly, still the law in these states.

I hope you or your family never have to experience one of the events that lead to these types of cases but if you do know that the lawyers at BUTTAFUOCO AND ASSOCIATES are here to help you in the time of crisis and grief.


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