Bill S2540-2011

Provides for the types of damages that may be awarded to the persons for whose benefit an action for wrongful death is brought

Provides for the types of damages that may be awarded to the persons for whose benefit an action for wrongful death is brought i.e. grief and anguish; loss of love, society, protection, comfort, companionship and consortium; reasonable funeral expenses; reasonable expenses for medical care, treatment etc. prior to death; pecuniary injuries due to loss of services, support, inheritance; and loss of nurture, guidance or education.






TITLE OF BILL: An act to amend the estates, powers and trusts law, in relation to payment and distribution of damages in wrongful death actions

PURPOSE: This bill would permit the families of wrongful death victims to recover compensation for their emotional anguish.

SUMMARY OF PROVISIONS: The bill amends EPTL section 5-4.3, the wrongful death statute, to permit recovery of damages for emotional loss when a tortfeasor is found liable for causing a death. Current law allows recovery of pecuniary loss only, thus making it impossible for spouses, children, parents, and siblings to receive any compensation for their non-economic loss.

JUSTIFICATION: Families who suffer the loss of a loved one must endure a second blow, when they discover the civil justice system is unable to compensate them for their emotional loss. A wrongful death statute that is nearly 150 years old, and sadly out of step with our sister states, prohibits the grief-stricken family from recovering damages for their emotional suffering from the wrong doer.

The current law, which awards compensation for pecuniary loss only, impacts most harshly on children, seniors, women and minorities, who often have no income or significantly less income, and are traditionally undervalued in our society. For many years, the courts have struggled to overcome the current law's narrow and inhumane language, which measures the worth of loved family members solely by their value as wage earners. The law, in essence, says that the attributes of our family members that we most value--emotional support, love, companionship, advice and guidance--count for nothing.

At least 41 other states compensate family members for emotional loss. This bill will not only better address and more fully right the wrong to the family of the deceased, it will-also deter the negligent, reckless, sometimes criminal behavior that leads to needless deaths. It is ironic and contrary to public policy that currently a wrongdoer may take advantage of the law that makes it cheaper to kill someone than to seriously injure them. This bill would correct this harsh anomaly of the current wrongful death law.

LEGISLATIVE HISTORY: S.2391/A.2872 (2009-10); S.1266/A.6420 (2007-08); S.54/A.5856 (2005-06); S.2994/A.6637 (2003-04); S.793/A.7789 (2001-02) S.5487/A.8013 (1999); S.585-A/A.4553-A (1997); S.2133/A.3224 (1995); S.8558/A.11792 (1994)



Immediately and shall apply to all trials commenced on or after said date.


STATE OF NEW YORK ________________________________________________________________________ 2540 2011-2012 Regular Sessions IN SENATE January 25, 2011 ___________
Introduced by Sen. DeFRANCISCO -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the estates, powers and trusts law, in relation to payment and distribution of damages in wrongful death actions THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (a) of section 5-4.3 of the estates, powers and trusts law, as amended by chapter 100 of the laws of 1982, is amended to read as follows: (a) The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the [pecuniary] injuries resulting from the decedent's death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, [the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper elements of damage] FAIR COMPENSATION FOR THE FOLLOWING DAMAGES MAY BE RECOVERED: (I) REASONABLE FUNERAL EXPENSES OF THE DECEDENT PAID BY THE DISTRIBUTEES, OR FOR THE PAYMENT OF WHICH ANY DISTRIBUTEE IS RESPONSIBLE; (II) REASONABLE EXPENSES FOR MEDICAL CARE INCIDENT TO THE INJURY CAUSING DEATH, INCLUDING BUT NOT LIMITED TO DOCTORS, NURSING, ATTENDANT CARE, TREATMENT, HOSPITALIZATION OF THE DECEDENT, AND MEDI- CINES; (III) GRIEF OR ANGUISH CAUSED BY THE DECEDENT'S DEATH, AND FOR ANY DISORDER CAUSED BY SUCH GRIEF OR ANGUISH; (IV) LOSS OF LOVE, SOCIE- TY, PROTECTION, COMFORT, COMPANIONSHIP, AND CONSORTIUM RESULTING FROM THE DECEDENT'S DEATH; (V) PECUNIARY INJURIES, INCLUDING LOSS OF SERVICES, SUPPORT, ASSISTANCE, AND LOSS OR DIMINISHMENT OF INHERITANCE, RESULTING FROM THE DECEDENT'S DEATH; AND (VI) LOSS OF NURTURE, GUIDANCE, COUNSEL, ADVICE, TRAINING, AND EDUCATION RESULTING FROM THE DECEDENT'S
DEATH. Interest upon the principal sum recovered by the plaintiff from the date of the decedent's death shall be added to and be a part of the total sum awarded. S 2. This act shall take effect immediately and shall apply to all trials commenced on or after such date.


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