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Wrongful Death Lawsuits: When Criminal Charges Are Not Enough

In July 2011, retired Manhattan Supreme Court special referee Marilyn Dershowitz was killed while bicycling through Manhattan with her husband. A seven-ton U.S. Postal struck Dershowitz from behind in a narrow, one-way, tunnel-like area near a mail sorting center in Chelsea.

Witnesses say the mail truck was jockeying for position with a small passenger car as the corridor narrowed, while NYPD sources say thetruck driver swerved into Dershowitz to avoid hitting the car. Nevertheless, the driver, Ian Clement, claims he thought he hit a bump or a crate but did not know he had hit a person until police tracked him down. No criminal charges have been filed against him.

While Clement may avoid criminal punishment for killing Mrs. Dershowitz, he and the U.S. Postal Service are unlikely to escape a civil lawsuit for her wrongful death. New York’s wrongful death statute allows a representative of the deceased’s estate to receive a fair and just monetary award to compensate for the financial harm caused by the death. The representative brings the wrongful death claim on behalf of the deceased’s beneficiaries, which are generally the surviving spouse and any children.

Courts must consider many factors in determining the amount of a wrongful death award, which is essentially the deceased’s anticipated financial benefits to the family should he or she have lived. Factors include age, salary and career advancement possibilities. But in addition to earning potential, the value of future emotional support and parental guidance are also taken into account, especially if the deceased was primarily a homemaker.

Beneficiaries can also recover reasonable hospital and medical care expenses, as well as funeral costs. If the behavior of the person causing the wrongful death was reckless, the beneficiaries may be able to recover punitive damages to hopefully deter the same conduct in the future. However, New York courts do not generally award damages for pain and suffering or loss of companionship.

As in the case of Marilyn Dershowitz, criminal charges are sometimes not brought against the person who caused a death. A civil lawsuit may be the only chance for the deceased’s family to see some form of justice. However, wrongful death actions can be complicated. If you have a loved one who was killed by the negligence or recklessness of another, contact an experienced attorney to discuss your situation and your options.


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