New York State Senate Bill S74A was recently approved by the New York Legislature. Known as the “Grieving Families Act,” it seeks to significantly expand the right to recover damages in wrongful death actions in New York.
It is expected to be signed by the Governor quite soon, if not by the time you are reading this. Once signed, the act will take effect immediately. The Bill also extends the time to bring a wrongful death action from 2 years, to 3 years and 6 months.
Currently, New York is one of only eight states that does not permit compensation for emotional pain and suffering of family members when another member is lost due to the fault of another. Damages are limited to “pecuniary loss” and to distributees, such as a surviving spouse and blood relatives.
Pecuniary loss is defined as injuries measurable by money. They can be calculated by looking at a decedent’s earning potential, such as present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent’s age, character and condition, and the circumstances of the distributees.
To illustrate – a 32-year-old decedent who was earning one hundred and fifty thousand dollars a year and had a work life expectancy of another 20 years would have a pecuniary loss of three million dollars in lost earnings. This is a simplified example and does not consider the possibility of pay increases and/or lost benefits such as pension, 401k, health insurance and the like.
The Proposed Law
Although New York was the first state to enact a statutory cause of action for wrongful death in 1847, other jurisdictions’ statutes have been broader and allowed for loss of grief and companionship. The “Grieving Families Act” puts New York on par with other states and allow close family members to recover for “(iii)grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish.”
The statute defines close family members as, “not limited to, spouse or domestic partner, issue, parents, grandparents, step-parents, and siblings. The finder of fact shall determine which persons are close family members of the decedent.”
Whether this new legislation is beneficial is disputed. Critics argue that the broad definition will allow for speculative and excessive verdicts. The Lawsuit Reform Alliance of New York predicts the economic consequences will be devastating. They claim the new law will force insurance companies to increase premiums because of the exposure they face in wrongful death actions. They cite an analysis by Milliman Inc., which found that the bill would increase insurance costs by more than $2 billion and medical malpractice insurance could increase by as much as 45%. The Business Council of New York State stated the increase in premiums will mean higher prices for consumers.
Not surprisingly, the new law has been met with elation by the Plaintiff’s Bar and the New York State Trial Lawyers Association (NYSTLA). They understand that the new law will result in an increase in the value of wrongful death actions in New York. A program distributed by the NYSTLA called the current law “wrongfully inadequate.”
In an incredibly vivid discussion, the program speaker discussed that when a man loses his wife, they are known as a “widower,” when a child loses their parent, they are an “orphan,” but there’s no word in the English language for a parent who loses a child (perhaps the most traumatic experience one can endure) and in New York, there is no recovery allowed for it. A powerful statement.
The program also debated the unjust outcomes of the current law – it places no value on the life of a child because a grieving parent cannot prove that the child would provide them a financial support in the future; it also perpetuates socio-economic disparities as it assigns more value to the life of a high earner than to that of a person who makes a more modest living, such as a stay-at-home parent.
The New York State Senate Judiciary committee has defended the law by rightfully pointing out that “[f]orty-seven other states have similar laws, and yet business and the medical industry continue to prosper in those states.”
Naturally, whether one supports or opposes such a law is one of perspective. The family of a lost loved one will never be fully compensated for their loss, but shouldn’t they be permitted to be recognized for their emotional damages? On the other hand, where does it end? Will juries begin allowing cousins to recover extraordinary damages because they were very close to a decedent? Unless the legislature further defines the class of person able to recover, we are heading towards a slippery slope.
 EPTL § 5-4.1
 EPTL § 4-1.1
 Rohan, Practice Commentary, McKinney’s Cons.Laws of N.Y., Book 17B,EPTL 5-4.3 at 497–498
 Id. Grieving Families Act -Critics Are Pushing Back at a Proposed New York Law That Could Benefit Plaintiffs – NYLJ 9/15/22.
 NY’s Grieving Families Act – New York State Trial Academy.