Potential Emotional Damages for Wrongful Death in New York

Written by:  Nicole Callahan, Esq. and Daniele DeZago, Esq.


The New York Legislature recently passed Bill S74A, also called the Grieving Families Act, which would amend sections of the EPTL that provide for the types of damages that may be awarded in wrongful death actions.  Governor Hochul is expected to sign this bill into law as written, thereby significantly expanding the damages available and, consequently, substantially increasing sustainable judgment values in wrongful death cases.


EPTL § 5-4.1 would be amended to extend the statute of limitations to commence a wrongful death action from two years to three years and six months.  This extension could allow many more wrongful death cases to go forward.

EPTL § 5-4.3 would be amended to allow recovery for emotional damages in addition to the currently permitted economic damages.

EPTL § 5-4.4 would extend recovery to “close family members”.  This would include domestic partners, grandparents, step-parents, and anyone else that a jury, based on the facts of the case, determines qualifies as a close family member.

EPTL § 5-4.6 would replace the term “distributees” with “ persons for whose benefit the action is brought”, further expanding the group who can recover, arguably even to non-family members.

EPTL § 5 provides that the law shall take effect immediately and shall apply to actions commenced after the effective date of the law, as well as all pending actions.

III.          ANALYSIS

The amendments as written and passed by the legislature contain broad, undefined terms, with no guidance as to their interpretation.  For example, the bill does not identify the types of emotional damages permitted to be claimed.  One would imagine that grief and sorrow, as well as loss of love, affection, nurturing, and the like, would be included.  The bill also does not delineate the method by which these newly permitted damages will be measured.  Nor does it place a limit on the sums recoverable.

Additionally, the bill does not define “close family member” or one “whose benefit the action is brought.”  Any number of extended family members or family friends could in theory qualify.  We expect that early case law in New York will address the criteria for qualification under the statute.

What is apparent is that recovery will be determined on a case-by-case basis by the factfinder.  However, counsel may turn to findings and decisions from other jurisdictions in support of damages arguments, particularly in the time period immediately following the passage of the law.

Additionally, with the lengthened statute of limitations, the overall number of cases with wrongful death claims will likely increase, thereby creating the need to mount a defense as to this claim in addition to the typically corresponding claims of negligence, medical malpractice, and/or lack of informed consent.


Several states have statutes that allow for both emotional and economic damages where liability is found in relation to claims for wrongful death.  By way of example of what may be seen upon the passing of the above-discussed EPTL amendments in New York, a few are discussed below.


In Oklahoma, emotional damages includes the grief, mental anguish, and loss of companionship for the surviving spouse and children, as well as loss of parental care and loss of guidance.  The judge determines the distribution of the damages awarded based upon the record evidence.  Jury instructions for the wrongful death of an adult include the following with regard to recoverable emotional damages: (a) grief of the surviving spouse; (b) loss of society, services, companionship and marriage; (c) grief of the children; (d) loss of companionship and parental care, training, guidance or education; (e) loss of companionship of the decedent by his/her parents.  Jury instructions for the wrongful death of a minor child include the following with regard to recoverable emotional damages: (a) loss by the parents of anticipated emotional support; (b) loss by the parents of companionship and love of the child; and (c) destruction of the parent-child relationship.


Florida permits recovery for emotional damages, including mental anguish and loss of support, for specific statutory survivors: (a) spouse, (b) children under the age of 25, and (c) other children who are deemed to be dependent (e.g., handicapped adult child), loss of support and services for children up to age 25).


Arkansas limits recovery for mental anguish and grief associated with the wrongful death of a loved one to the surviving spouse, parents, and siblings of the decedent, and/or persons who stood in loco parentis to the decedent and persons to whom the decedent stood in loco parentis (regardless of age).  Jury instructions recite the following categories: (a) mental anguish, grief, and despair; (b) loss of consortium; (c) moral training, supervision, and education for children of a deceased parent; (d) future services to the parent of a deceased child.


The amendments to the EPTL in relation to wrongful death actions to allow for recovery for emotional damages will not only very likely increase sustainable jury verdicts, but also the overall costs of litigation.  Investigations as to the relationship the decedent had with various family and non-family members will be needed so as to determine the scope of possible damages.  Additionally, because the law will likely be retroactive, we expect that plaintiffs in pending cases brought within the last one to two years will add a claim for wrongful death damages, where applicable, that may have been previously unavailable due to the shorter statute of limitations.

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