Recovering Non-Economic Damages in a Wrongful Death Claim

Answer:

In New York State, the only way to get damages, apart from economic losses, for wrongful death, is when there was a pain and suffering component that occurred before the wrongful death. If someone is killed instantly, under the current law, we are quite limited as to what we can recover for the family and loved ones. If there were any conscious pain and suffering that occurred before the death, however, we would have a cause of action. We could argue for a pain and suffering cause of action, which would be the traditional case that you would expect for an injury in New York State, then the wrongful death component as a separate and distinct cause of action that only recovers the actual economic losses of the those who survived the decedent.