Bloomberg Law
July 24, 2020, 8:00 AM

INSIGHT: New York Wrongful Death Law Needs to Prove ‘All Lives Matter’

Matthew Haicken
Matthew Haicken
Haicken Law PLLC

Intentionally misinterpreting “Black Lives Matter” to mean “ONLY Black Lives Matter,” conservatives have fought back with the seemingly innocuous “ALL lives matter.” Saying this obvious phrase is a way to appear egalitarian, while actually refusing to recognize what the Black Lives Matter movement is all about.

While many conservative politicians in New York proudly proclaim that “All lives matter,” most of them consistently cast a vote for the complete opposite proposition. Each year, they refuse to update New York’s wrongful death law, which was written to benefit white, male, landowners.

While no amount of money can compensate a family for the death of a loved one, it’s time for New York to hold wrongdoers and their insurers accountable for causing fatalities.

N.Y. Wrongful Death Law Unchanged Since 1847

The law has essentially not changed since its passage in 1847. In a wrongful death case, the surviving family can only receive compensation related to the following four categories:

  • Economic damages to financial dependents;
  • Loss of parental guidance;
  • Pre-impact terror;
  • Conscious pain and suffering of the decedent, from the moment of impact until the moment of death or brain death, whichever is the shorter time period.

New York does not recognize a claim for the emotional toll that a traumatic death can cause to a family. So, the instant death of a child or a retiree is worthless. Insurance companies are forced to compensate grieving families much more when the decedent was a high wage earner. When the decedent comes from the ranks of the working poor, the family doesn’t get much. Grief be damned.

Is the loss of a parent and spouse who is a construction worker less devastating than the loss of a parent and a spouse who is an investment banker?

Considerations in Pain and Suffering

The cases that insurance companies fear most are those where the decedent suffered through pre-impact terror as well as conscious pain and suffering. These macabre legal concepts are what separate which lives matter most.

Pre-impact terror is the period of time between when the now dead person realized there was a danger, up until the accident occurred. Think of falling down an elevator shaft, or realizing a crane is about to land on you.

New York law reserves the highest “awards” for cases where the decedent suffered a long, painful, agonizing death. Every second of suffering could mean hundreds of thousands of dollars more, so no stone can be left unturned in the investigation. It must be determined exactly how long the suffering lasted.

Throughout the course of the litigation, the surviving family members are forced to sit through ghoulish testimony often involving horrific scenes of their relative’s last moments. The case value skyrockets if there’s evidence of screaming, groaning, whimpering, etc. All lives really only matter in New York during the last moments when someone is for example, being crushed, electrocuted, burned, or choked to death.

If Republicans in New York really feel that all lives matter, they should consider changing the wrongful death law, so insurance companies have to compensate surviving family members for their emotional injuries as in 41 other states.

Take the case of Caleb Schwab, a 10-year old child who was decapitated on a water slide in Kansas in 2016. This case settled for $20 million. Assuming Caleb died instantly, that case would have been worthless in New York, unless the family was “lucky” to have evidence that Caleb appreciated the imminent danger for a few seconds before tragedy struck.

The counter argument to changing the law is that juries can’t be trusted to evaluate emotional damages. They can’t? We let jurors determine how much someone’s suffering was worth, even though they are now dead, but we can’t trust jurors to determine how much the actual living family members should get for their suffering?

We also let jurors determine how much a living person’s suffering is worth in every other type of injury case where the plaintiff doesn’t die. What’s it worth that the plaintiff will feel pain every time she walks for the rest of her life? What’s the value to a laborer who feels emasculated because he is no longer physically able to do basic household chores? How about a young single woman with a facial scar who feels she is suddenly less desirable?

If jurors can be trusted to make these determinations, there’s no reason they shouldn’t be able to evaluate the suffering of a family, even a poor one, when a loved one is lost.

If the insurance company feels the verdict is too high, they can always appeal. Our learned appellate judiciary regularly reduces awards they deem excessive and would undoubtedly do the same for death cases. If all lives really matter, the law must be changed.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Matthew Haicken is a personal injury trial lawyer in Manhattan.