Chartwell Law's Outline of New York's Proposed Grieving Families Act

On May 2, 2023, New York State lawmakers introduced an amended Grieving Families Act (“proposed Act”). If enacted, the proposed Act would overhaul New York’s wrongful death statute by expanding who could sue for wrongful death, extending the period in which a wrongful death action can be brought, and permitting recovery of damages due to emotional loss (in addition to monetary loss).

On January 20, 2023, Governor Hochul vetoed a prior version of the proposed Act (which had been passed by the Senate and Assembly) based, at least in part, on its potential unintended consequences – increases in already-high insurance burdens on families and small businesses as well as further strains on already-distressed healthcare workers and institutions. The proposed Act is aimed at addressing these concerns and is expected to be fast-tracked for approval and enactment.  

Below we provide a brief outline of the proposed Act’s key components and address its potential consequences.

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STATUTE OF LIMITATIONS. Section 1.  

The proposed statute of limitations for filing a wrongful death lawsuit is three years (extended from the current two-year statute of limitations).1

TYPES OF DAMAGES. Section 2.

The proposed Act provides for six types of damages:

• Reasonable funeral expenses
• Reasonable expenses for medical care incident to the injury causing death (including, but not limited to, doctors, nursing, attendant care, treatment, hospitalization, and medication)
• Grief or anguish caused by the decedent’s death
• Loss of love, society,  protection,  comfort,  companionship, and consortium resulting from the decedent’s death
• Pecuniary injuries (including loss of services, support, assistance, and loss or diminishment of inheritance, resulting from the decedent’s death)
• Loss of nurture, guidance, counsel, advice, training, and education resulting from the decedent’s death

DISTRIBUTION OF DAMAGES. Section 3.  

The proposed Act provides that “close family members” are entitled to the damages listed above.

• The list of close family members eligible to receive damages in wrongful death lawsuits includes spouses, domestic partners, foster children, stepchildren, step-grandchildren, parents, grandparents, step-parents, step-grandparents, siblings or anyone acting “in loco parentis” to the deceased person.2
• Juries are empowered to determine, “based upon the specific circumstances relating to the person’s relationship with the decedent,” whether an individual is a “close family” member of the decedent.

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RETROACTIVITY. Section 5.  

The proposed Act is to be applied retroactively to all causes of action accruing on or after July 1, 2018, regardless of when they are filed.

What Does this Mean for You?

We anticipate that if it becomes law, the proposed Act will significantly impact the frequency and nature of wrongful death litigation throughout the state. As we look ahead, here is some of what we expect:

• The proposed Act’s retroactive effect will transform existing cases by allowing for the potential addition of multiple parties and causing sudden increases in the values of existing actions – where previous recovery was for monetary losses only, emotional loses are to be included. In addition to expected confusion and delays in such cases, the proposed Act will likely derail ongoing settlement negotiations.
• Juries are empowered beyond their current roles. With the ability to define what makes someone a “close family member” and to place a value on a party’s grief, juries are provided tremendous authority.
• We expect that the cost of insurance premiums in New York will increase exponentially. With no cap on damages, potential unpredictability of juries, an extension of the statute of limitations, and an expansion of potential parties, the proposed Act will leave insurers no choice but to increase premiums throughout the state, forcing small businesses out of business.

We understand the uncertainty brought about by legislative changes. Chartwell Law’s highly experienced attorneys are available to answer any questions regarding these changes and resulting litigation concerns in New York. Please do not hesitate to contact us.