Back in the 19th century, it was a lot cheaper to kill someone than to permanently maim them because the law allowed only injured people to sue and be compensated. This, of course, led to great hardship for relatives when a family member was wrongfully killed.
But guess what? It still is. Cheaper, that is. Or at least it is in , which has the nation’s worst wrongful death law.
That New York should hold this distinction is incredibly ironic given New York’s groundbreaking role establishing “wrongful death” rights in the first place. New York’s 1847 wrongful death law was the very first in the nation. Every state followed New York’s lead by enacting a wrongful death law.
These laws are not all the same. Explain Speiser and Rooks in their three-volume treatise, Recovery For Wrongful Death, wrongful death laws “vary widely in detail … with the result that the rights of recovery, the persons who can recover and the elements of damages vary among jurisdictions.”
An early characteristic of most of these laws was that only “pecuniary injuries” could be compensated (i.e., meaning a relative had to suffer an “economic” loss, such as lost income of the person killed, funeral expenses, etc.) This restriction excluded any compensation for intangible losses like grief, mental anguish, bereavement, lost companionship, loss of consortium (like society, love, advice, guidance). How particularly unfair this was for relatives not financially dependent on a deceased person’s income, like parents of a child, or adult children.
To remedy the harshness of these early “wrongful death” laws, explain Speiser and Rooks, virtually every state expanded compensation to allow recovery for intangible losses “at least to some beneficiaries … either expressly by statute, or by judicial decision.”
New York has done nothing.
More specifically, many states expressly changed their laws through legislative action. , courts remedied the injustice, first through jury verdicts and then court decisions. Judges “attempted to address this problem in several ways … either by broaden[ing] the definition of ‘pecuniary loss’ (i.e., assigning pecuniary value to [intangible losses] or by discard[ing] the limitation altogether).”
Explains Speiser and Rooks, “Only a few jurisdictions continue to deny consortium or society damages to all beneficiaries.” New York is one of them. Yet even in the handful other states listed by the authors, courts seem to have affirmed at least some exceptions.
It is shocking that after literally leading the nation’s way 172 years ago, New York is “completely isolated” in terms of the harshness of its wrongful death law.
It is time for New York lawmakers to do something. Indeed, it is very long overdue.