For now the third straight year, New York’s legislature has passed a revised version of “the Grieving Families Act,” legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality. The current bill (A9232-b/S8485-b) still greatly expands the categories of available damages from New York’s current wrongful death statute which limits damages to economic or pecuniary losses of the survivors resulting from the death, the medical and funeral costs related to the final injury or illness, and the value of parental guidance, nurturing and care for surviving children.
After two consecutive years of vetoes by Governor Hochul, a modest revision has just passed in both houses, which:
- Proposes the statute of limitations to be three years from the date of the decedent’s death (current statute of limitations is two years, and prior version proposed expansion to three and a half years).;
- More narrowly defines “surviving close family members” who can potentially recover; and
- Reduces the proposed retroactivity to causes of action that accrue on or after January 1, 2021 instead of July 1, 2018.
One of the major changes in this revamped act is clearly crafted to address prior criticisms that the pool of potential plaintiffs was too broad and undefined. The prior proposed amendments would have allowed “the decedent's surviving close family members” to bring a suit, which was limited to a list of defined relations “or any person standing in loco parentis to the decedent.” It also would have required a fact finder to determine, “which persons are entitled to damages as close family members of the decedent” based on their relationship.
Under the new proposed legislation, the definition of who may recover damages still includes spouse and domestic partner, however the list of distributees is defined, as it is under current law, by § 4-1.1 of the Estates, Powers and Trusts Law, codifying the rules of intestate succession, and § 5-4.5, dealing with the rights of non-marital children. It also expands the pool to include “any person to whom the decedent stood in a position of in loco parentis,” which is presumed when an adult and minor share or have recently shared a household. Under the prior proposed legislation, only those standing in loco parentis to the decedent were additional potential claimants. The new legislation keeps the provision allowing a fact finder to determine which of the potential claimants are entitled to damages, based upon the relationship with the decedent.
Notably, the amended proposed legislation continues to omit a cap on damages, nor does it carve out an exception for medical malpractice claims. The expansion of damages appears to be the same as that passed in the prior legislation, and while the legislature has limited the retroactivity, it has not eliminated it. On its face, it does not appear that these modest revisions address the Governor’s prior concerns in any meaningful way, and will nonetheless likely face constitutional challenges if signed into law.
