WRONGFUL DEATH | CHILDREN AND INFANTS

We have noted that the awards in wrongful death cases in New York State involving the death of children or infants is almost invariably shockingly low to the average lay observer. This is because the permissible guidelines for determining the amount of such award, in New York, are generally restricted to “conscious pain and suffering” and “pecuniary loss”, the latter item of which, in the case of a child or infant, is understandably negligible.

In determining “pecuniary loss”, the jury can consider what the child or infant would have contributed to the support of the parents. Conjecture is not appropriate and consequently, proof of such an item is extremely difficult, if not impossible. It is usually to “conscious pain and suffering” that attorneys look to salvage some modicum of monetary compensation for the parents. In the event of an almost instant death then this, too, becomes a source of difficulty rather than of a just award.

If the defendant evinced conduct that was utterly indifferent to the safety of others, exhibited gross negligence or showed a conscious disregard for the life of others, then punitive damages might be applicable. In such instances, recoveries can be significantly higher.

If a parent was at the scene of the accident, in what is known in legal parlance as the “zone of danger”, then the parent may possibly be entitled to separate damages for “emotional trauma” inflicted by witnessing the accident.

Both “punitive damages” and a “zone of danger” claim are rarely available, but the experienced Personal Injury Attorney will be alert to any possible avenue to increase what might be, frankly, an otherwise inadequate recovery.

A federal judge awarded $1.6 million to a family as a result of their daughter’s death in an automobile accident.

The daughter was an infant and was killed when the car she was in, parked along a Kentucky parkway, was slammed by a U.S. owned vehicle driven by an American soldier.

The amount of damages awarded in this case would be virtually impossible to recover in a similar case in New York State, barring horrific pain and suffering by the infant, over an extended period of time, which was not indicated in the matter arising in Kentucky.

The reason: the factors the law permits to be considered. in determining recoveries in wrongful death cases in New York, virtually always result in what can legitimately be called “shockingly low” damage awards in infant cases (“infant” being defined here, not in the legal sense, but by the layman’s definition).

Every state has its own elements that may be applied in determining the amount of award in wrongful death cases.

Florida, for example, permits consideration of the family’s bereavement–the emotional impact on the surviving family members. Some other states do so as well. New York does not !! The Federal Government applies different standards depending on varying federal statues that apply to a particular situation. In the case noted above, the federal courts gained jurisdiction because an American Army vehicle and driver were involved, and particular statues applicable to this situation obviously permitted a recovery of this magnitude.

Experienced Personal Injury Attorneys will often cringe when faced with the burden of informing grieving relatives, who have recently lost a child, that insult to injury will be visited upon them in the form of a much lower than imagined monetary recovery–not that any amount in the world could ever adequately compensate them for their tragic loss. Most experienced, forthright personal injury attorneys will inform families, who seek to retain their firm, the “facts of life” regarding this egregious situation at the very first opportunity.

This article will be followed by a closer look at the elements involved in wrongful death cases as they affect the passing of an infant.

As Reported by the New York Times,

“For the second time in five weeks, a New York City police officer has been arrested on charges of killing a pedestrian while driving drunk, this time in the Bronx, officials said on Friday.

Drana Nikac, 67, was killed.

The scene, Kingsbridge Avenue at West 232nd Street in the Bronx. It was the second recent fatality with a police officer at the wheel.

About 6:30 a.m., the police said, Detective Kevin C. Spellman, 42, a 22-year veteran of the Police Department, was driving south on Kingsbridge Avenue in his government sedan when he struck the woman, identified by relatives as Drana Nikac, 67, as she crossed the avenue near West 232nd Street in Kingsbridge.

Drunk Driving Accidents in New York should not be tolerated, especially by those that are commissioned with the protection of the citizens of New York. This is not only just an incident of Police Misconduct in NYC, this is seemd to be a further sign of a culture that seems accepting of shirking the responsibility to its citizens.  If you have been a victim of police misconduct or a drunk driving accident in New York, make sure to stand up for your rights and make your voice heard.  As citizens we have the responsibility to keep our protectors in check.

“Wrongful Death” is the term used to describe the death of a person through a negligent act by another person.   It is different from terms you may have heard that are used in criminal law such as murder or manslaughter.   “Wrongful Death” does not involve criminal law–it is a term used in “civil law”–though a person responsible for a wrongful death may also, but not necessarily, be criminally responsible.   A negligent person — a person who causes the death of another through a careless or reckless act, may be responsible to pay money damages to the relatives or family of that deceased individual whether or not that person may also be criminally responsible.

For information particular to New York, please see our wrongful death law page.

Posted by New York Injury Lawyer Steve Orlow