Legislation aimed at drastically changing New York’s rules for compensating family members for a loved one’s wrongful death is again under consideration by the State Legislature after a prior version of the Grieving Families Act passed last year was vetoed by Governor Kathy Hochul.
New York is one of a minority of states that limit damages in wrongful death actions to the economic loss sustained by the decedent’s “next of kin”, a term that includes spouses, children and parents, but not unmarried partners, or stepparents or siblings when the decedent is married or has children. In addition, damages from the loss of emotional support, love, companionship, advice and guidance from the deceased person are currently not allowed, defining the decedent’s value solely based on earning capacity.
Last June, both chambers of the New York State Legislature passed the Grieving Families Act (Senate Bill S74A, Assembly Bill A6770). The vote was 57-6 in the Senate and 147-2 in the Assembly. The version of the bill passed at that time would have expanded the class of plaintiffs allowed to recover in wrongful death suits to anyone deemed to have a “close” relationship with the deceased. It would have permitted plaintiffs to recover not only economic damages, but also damages for grief, sympathy and loss of companionship. It did not place a cap on recoverable damages and would have extended the current two-year statute of limitations for a wrongful death action to three and a half years. Further, it had retroactive effect.
Proponents of the bill argued that the current law fails to reflect current societal trends, and pointed to the fact that 48 other states have passed similar legislation. Opponents pointed out that the failure to place a cap on recovery would drastically increase the cost of personal and business general liability and automobile insurance as well as medical malpractice insurance. In addition, they objected to the retroactive application of the proposed statute to any pending wrongful death lawsuit, and the extension of the statute of limitations.
Governor Hochul vetoed the bill in January 2023, acknowledging the emotionally charged issues underlying it but ultimately concluding that the Legislature had failed to seriously consider the economic implications of “this far-reaching, expansive litigation.” The Governor left open the possibility that a revised version would be enacted, issuing a statement that read, “I urge the Legislature to join me in taking a meaningful step forward so that parents who are grieving the loss of their children from accidents can finally receive justice they have been denied for the last 176 years.”
The amended bill currently under consideration has attempted to address the Governor’s concerns in several ways. It reduces the statute of limitations to three years from the date of the decedent’s death. It explicitly defines “surviving close family members”, limiting potential plaintiffs to persons falling within the definition. While it still has retroactive effect, it applies only to “causes of action that accrue on or after July 1, 2018, regardless of when filed.”
We will monitor the progress of this bill and will provide updates if further amendments are made as it goes through the legislative process.
