New York is a beacon for equality and justice for all New Yorkers; however, when a loved one dies due to another’s negligence, New York serves not as a leader in equality but rather as the caboose on a train that has already left the station.
While no one ever wants to assign a value to human life, there are times when it must be done, such as when a person dies or is injured and then dies due to another’s negligence. Yet, when New York courts must assign a value to a life, they are forced to rely on a wrongful death statute that was passed in 1847. This outdated law recognizes mostly pecuniary injuries – which are primarily based on a working male’s age, health, earning capacity, and life expectancy as a measure of damages.
Under this outdated pecuniary loss computation, the value of a woman, homemaker, child, or elderly person is significantly reduced compared to that of a working man. The current financial computation in wrongful death cases perpetuates the “gender wage gap” and continues long-standing statutory discrimination.
As a personal injury and medical malpractice lawyer representing seriously injured people and families for the wrongful death of their loved ones, I have seen the inequity and harm caused by this outdated law. All too frequently, we are left explaining to families why we are unable to seek justice for the negligence that led to the death of a loved one. Attorneys carefully evaluate whether the costs of litigation can be justified by the potential monetary recovery to the family, leaving us, the attorneys, to explain why their loved one is not “worth” representation in a wrongful death action.
Under the current law, the litigation costs and the potential recovery make cases where non-working women, children, and the elderly have died not financially worthwhile. Not only does this situation leave a financial hole for families, but it also allows negligent actors to avoid accountability for their negligence.
Our State Legislature has heard our voice and passed the Grieving Families Act to modernize wrongful death cases in New York, not once, not twice, but three times. New York can correct its course and join 40 other States in implementing a fair and equitable wrongful death statute. Governor Kathy Hochul should sign the Grieving Families Act into law. Under the Grieving Families Act, reliance on discriminatory categories would be removed and replaced with similar formulas for everyone. It would immediately update how damages are calculated in wrongful death cases, offering a brighter future for families affected by such tragedies.
Instead of vetoing the Grieving Families Act for the third time, Governor Kathy Hochul should sign it into law and conquer another barrier in the battle for equality.
Marea L. Wachsman is the president of the Women’s Bar Association of the State of New York.
