NYCLA Tort Law and Civil Rights & Liberty Committees Support The Grieving Families Act

The Grieving Families Act (Senate Bill S6636, Assembly Bill A6698) was recently passed by the New York State Senate.  A prior version of the bill passed the legislature with overwhelming bipartisan majorities last year but was vetoed by the Governor.  If enacted, the bill would modernize New York’s antiquated wrongful death law, which, as it now stands, imposes arbitrary and inequitable limitations on recoverable damages in cases arising from deaths.  The New York County Lawyers Association’s Tort Law Committee and Civil Rights & Liberties Committee support its passage.

The damages that can be recovered in wrongful death actions under New York law are governed by statute.  EPTL 5-4.3(a) provides as follows: “The damages awarded to the plaintiff may be such sum as the jury… 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.”  “Pecuniary loss” includes lost wages and loss of guidance to children but excludes things like the grief of survivors or the loss of society and affection of the decedent.  This framework sharply limits the damages recoverable when the decedent was a child, elderly, or unmarried; in these kinds of cases, while the loss of a loved one may be deeply felt, the financial damages are apt to be limited.  The pecuniary loss framework traces to an 1846 British law, Lord Campbell’s Act, under which “Loss meant only money loss, and money loss from the death of a child meant only his lost wages. All else was imaginary. The only reality was the King’s shilling.” Wycko v. Gnodtke, 361 Mich. 331, 337 (1960).  

Under the current law, families are often dependent on claims for conscious pain and suffering, as opposed to wrongful death, to obtain meaningful recoveries – and, that failing, may face the prospect of limited damages.  Take, for example, a case in which a retired grandparent is hit by a car and dies instantly.  His or her family would likely face the prospect of receiving no meaningful compensation, despite their anguish and grief at the loss of a loved one.  With very limited exceptions, wrongful death damages may only be collected by statutory distributees of the decedent.  For instance, if a person dies and leaves a spouse and children, his or her parents and siblings would be generally unable to recover because they would not be distributees of the estate.  By the same token, unmarried domestic partners would not be able to recover anything at all, as they are not distributees.

The Grieving Families Act, if enacted, would modify the EPTL in three significant ways.  First, it would replace the current statutory language restricting recovery to pecuniary loss with a broader list of components of damages.  These would include, among other things, “grief or anguish caused by the decedent’s death,” “loss of love, society, protection, comfort, companionship, and consortium,” and “loss of nurture, guidance, counsel, advice, training, and education.”  Second, it would broaden the category of who can recover such damages by replacing the current language largely restricting recovery to distributees.  It would allow recovery by “close family members,” which would include spouses, domestic partners, children (including foster and stepchildren), grandchildren, and siblings.  Third, it extends the statute of limitations for wrongful death claims from two years to three and one-half years. 

The world looked very different in 1846, when the pecuniary loss framework originated, than it does today.  Our society no longer only values wage earners and landowners to the exclusion of others.  As the Bill’s explanation of purpose states, the current 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.”  The true value of a person’s life transcends the financial benefits they provide to their closest distributees and our law should reflect as much.   

As the Bill’s justification statement notes, our law is “unfortunately out of step with nearly every other state because the New York’s laws prohibit grief-stricken families from recovering damages for their emotional suffering from the death of their loved one.” The time for New York to modernize its wrongful statute is long overdue.

The NYCLA Tort Law and Civil Rights & Liberties Committees support the passage of the bill.

This statement was approved for publication by the NYCLA Officers and NYCLA’s Tort Law and Civil Rights & Liberties Committees. This statement has not been approved by the NYCLA Board of Directors and does not necessarily represent the views of the Board.