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Can damages be awarded for pre-death terror?

Wrongful death actions in New York provide for specified damages to family members who suffer the loss of a loved one as a result of another person’s negligence. These damages generally include fair and just compensation for pecuniary or financial injuries such as loss of support, voluntary assistance, possible inheritance and medical and funeral expenses.

However, damages may be awarded for pain and suffering that the deceased victim suffered before a fatal accident. Reasonable compensation may be awarded for the decedent’s fright or pre-impact terror of imminent grave injury or death that that was suffered before a fatal accident. However, no award for conscious pain and suffering can be awarded if there was practically instantaneous death or if there is no proof of consciousness or some level of cognitive awareness.

For example, an award of $1.25 million was awarded to the survivors of a 14-year-old who went under the water twice during an accident and survived for six to seven minutes. In another case, $100,000 was awarded to the survivors of a decedent who saw a truck and tried to stop on motorcycle before the fatal collision. A jury could award $50,000 to the survivors of a family member who drowned and their expert testified that a person drowning would live four to eight minutes and struggle before death.

The New York State Court of Appeals also ruled on a auto accident case in 2013 in which the decedent’s vehicle skid and drove over a snow bank and off a bridge. His survivors filed a wrongful death action alleging, among other things, that the State of New York negligently maintained the bridge.

The Court upheld a verdict for conscious pain and suffering even though it found that the decedent did not fear imminent grave injury or death when he lost control of his car. It ruled that reasonable inferences could be drawn from the evidence, however, that the victim endured a period of acute fear of death or serious harm as he approached the top of the snowbank without his car slowing down.

Prompt legal representation can help assure that plaintiffs can obtain evidence to support a claim for wrongful death and pain and suffering. Legal advice can help assure that a victim’s survivors can pursue their claims in legal proceedings.

Source: New York State Court of Claims, “Grevelding v. State of New York (No. 2013-018-439, Sept. 30, 2013),” Assessed Sept. 21, 2015