Outside Counsel

 This will be pay-walled, I'm sure. For future reference, then: 

Gov. Kathy Hochul is being criticized because she did not sign the Grieving Families Act, which would amend New York’s wrongful death statute in a number of significant ways. Understanding the law as it currently exists is essential to determine if the proposed changes are appropriate.

Tort damages are intended to compensate persons injured by someone else’s negligence for the harm that they have suffered. Generally categories of damages include medical expenses, lost earnings and pain and suffering, awarded to the injured person.

In a wrongful death action the estate of the decedent is entitled to recover for the “economic loss” that the person’s estate sustained. If the decedent supported their family with their wages the survivors would be entitled to that amount. The present law recognizes that a person’s family also benefits from the love, nurture, care and guidance that would have been part of their contribution to family life. The survivors are also able to collect damages for the pain and suffering the decedent endured before dying, including the fear of impending death.

The Grieving Families Act would add “emotional loss” as a new category of damages. There’s no guidance as to how much money would fairly and adequately compensate the bereaved for their emotional loss. How could there be? What is the quantum of grief? This would be entirely up to juries, and it is difficult to imagine that jurors would be parsimonious in applying this balm.

In addition the Grieving Families Act would expanded the categories of persons who could sue. “The finder of fact shall determine which are close family members based upon specific circumstances relating to the person’s relationship with the decedent.” As written the statute is so open-ended as to be effectively limitless.

Tort law is a risk-spreading mechanism. It is not intended to right wrongs. It cannot be, because all it can do is award monetary compensation. The proposed law would expand the categories of risk, and the pool of potential claimants beyond the capacity of our existing structure, creating new types of exposure.

That comes with a cost: businesses have insurance, and insurance charges premiums based on potential exposure. People have insurance too: We insure our homes, and our cars, so that we are not personally exposed when an accident happens. The supporters of the Grieving Families Act have not accounted for the costs that this expansion of existing law would amount to, and until we have seen what that looks like all we can know is that there will surely be costs.

The Legislature should go back to the drawing board and come back with some answers.

// posted by Bill @ 11:00 AM