Introduction

For the second year in a row, the New York Senate and Assembly have passed the New York Grieving Families Act.[i]  If signed by Governor Hochul, it would broaden the scope of the estates, powers, and trust law in significant ways.

History of the Current Law

The current version of New York’s wrongful death statute was enacted in 1847 and was seen as a way to compensate a family for the loss of a breadwinner. It only allows family members to sue for financial losses in the wrongful death of a loved one, not for any emotional distress suffered.  Thus, family members are currently limited to losses such as pre-death medical expenses, funeral expenses, pecuniary injuries such as the loss of support, services, and inheritance, and the loss of nurture, guidance, counsel, advice, training, and education.  Those who seek to file such lawsuits currently have a two-year statute of limitations to file a claim.

Earlier this year, Governor Hochul vetoed a previous iteration of the proposed law now awaiting her signature once again.[ii]

Important Changes

The pending bill would broaden the class of who could bring a wrongful death action, the type of damages they can seek, and the timeframe to do so.

Supporters of the bill argue the law change would reflect the changed dynamics of the modern family.  Damages would be broadened so “close family members” can sue for wrongful death.  “Close family members” would be defined as a decedent’s spouse or domestic partner, issue, foster-children, step-children, and step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings or any person standing in loco parentis to the decedent.  Importantly, the factfinder would determine who are “close family members” based upon specific circumstances relating to the person’s relationship with the decedent.

The law would be amended to add additional categories of damages to include damages for grief or anguish and the loss of love, society protection, comfort, companionship, and consortium.

That last main change concerns the timeframe in which grieving family members could bring a cause of action.  The statute of limitations would be extended from two to three years.  Additionally, it would apply to all causes of action that accrue on or after July 1, 2018.

Current Status

The bill has had overwhelming support in the Assembly and the Senate.  However, it is possible it will be vetoed again by Governor Hochul.  After her initial veto, the governor stated her reasons for doing so included a concern the prior version of the bill would have unintended consequences such as driving up health insurance premiums and rising hospital costs.[iii]  She also expressed concerns regarding the bill’s application to medical malpractice claims and the emotional damages available to parents who lost a child.

In response to the veto, the bill was substantially revised prior to making its way back to Governor Hochul’s desk.  Considering the broad support in both the Assembly and in the House, should she veto this version of the bill, it is entirely possible for her to be overridden with a two-thirds vote of both the Senate and the Assembly.

Takeaways

Should the law pass, defense attorneys and their insurance carriers should expect a flurry of activity from the plaintiff’s bar.  New lawsuits will be filed by individuals who were previously barred from doing so. Existing complaints will be amended to include additional causes of action. Jury awards and defense costs will likely also substantially increase should the law be amended. Litigators in New York and their insureds should pay close attention to this evolving development.

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Sources

[i] A.6698/S.6636

[ii] “New York Gov. Kathy Hochul Vetoes Grieving Families Act, Angering Some Loved Ones of Buffalo Masscre.” ABC News, published January 31, 2023, accessed on August 2, 2023 at https://abcnews.go.com/US/new-york-gov-kathy-hochul-vetoes-grieving-families/story?id=96789738

[iii] Hochul, Kathy. “Hochul to Legislature: Let’s Agree on Helping Grieving Families Before Today’s Midnight Deadline.” New York Daily News, published January 30, 2023, accessed on July 31, 2023 at https://www.nydailynews.com/opinion/ny-oped-lets-agree-on-helping-grieving-families-today-before-midnight-deadline-20230130-jim7ltxwofdm3nwurnidmi6mvi-story.html