In New York, the individuals who may recover damages in a wrongful death claim are set forth in the New York Estates, Powers & Trusts Law 5-4.1 et seq. (commonly referred to as the “Wrongful Death Statute(s)”) which also lists specific requirements a party must follow in order to successfully prosecute a claim.  For example, a duly appointed representative of the decedent’s distributees may bring the wrongful death claim on their behalf against the tortfeasor who committed the conduct which caused the decedent’s death.

Those who may recover in a wrongful death action are the person’s intestacy distributees (there is one exception, however, where if a decedent dies and is survived by a spouse, the decedent’s parents may also recover for financial losses incurred as a result of the decedent’s death).

The representative can assert a claim for past medical expenses, future lost earnings, loss of parental guidance (for minors) and loss of household services.  The representative can also assert a claim for pain and suffering, which permits the distributees to recover for the time the decedent consciously suffered as a result of the accident.

Conscious pain and suffering is a term of art in the legal field as it requires some sort of proof that the decedent was aware of what was happening and experiencing pain, pre-injury terror/fear (meaning the individual “saw it coming” to be rather colloquial), or either spoke or moaned (which is often regarded as an indication of awareness of the situation).

A recently handed-down decision in the Appellate Division (First Department) notably modified a Supreme Court decision to affirmatively award a wrongful death plaintiff conscious pain and suffering damages.  Sanchez v. City of New York is a good example of what conscious pain and suffering entails and what kind of proof should be offered to sustain a claim:

In Sanchez, the mother of the 28 year old decedent asserted a claim on behalf of the distributees when, 10 months after the decedent was struck by a sanitation truck, she passed away from her injuries.  After she was struck, the driver noticed that she was breathing and had her eyes open.  The responding officer described the decedent as “semi-conscious” in that she physically opened her eyes when the officer arrived on the scene (it was also noted in another officer’s report that she was conscious and alert).  An EMT reported that the decedent was “in and out of consciousness” and moaned while being tended to.  The plaintiff also presented expert evidence which purported to show the decedent was aware of the situation and experiencing both pain and suffering for a period of 10 minutes.  The jury returned a verdict finding the defendant 30% at fault and the decedent 70% at fault, awarding $150,000 for future lost earnings, $325,000 for loss of parental guidance and $150,000 for loss of household services.  The jury did not award any pain and suffering to the decedent’s representative.

The case was appealed on multiple grounds, including the jury’s failure to award the plaintiff for decedent’s conscious pain & suffering.  The Appellate Division found that the jury had no reasonable basis to deprive plaintiff of the award for conscious pain and suffering because the weight of the evidence showed that the decedent’s condition at the accident scene included consciousness if not outright awareness of her injuries.  The Appellate Division concluded that based on the three witnesses who observed her, there was “no question” that she was conscious for some measurable amount of time.  The Appellate Division thereafter awarded the plaintiff $400,000 for the decedent’s conscious pain and suffering.

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