What is a Wrongful Death Lawyer?

The death of a loved one is unbearable, but when their death is preventable and due to the carelessness, recklessness or intentional conduct (negligence) of another, it is a tragedy and may be a Wrongful Death claim.

Under New York law, when a person dies because of another person’s or entity’s careless, reckless or intentional conduct (negligence), the deceased’s loved one, such as their spouse or child, may bring a claim and lawsuit for “Wrongful Death” on behalf of the deceased’s estate.


The purpose of a wrongful death claim is to compensate the family members for the economic (financial) loss caused by the negligent person or entity. We know that no amount of money can replace a loved one as they are invaluable, however financial compensation is the only remedy in our justice system provided to grieving families.

A wrongful death claim (lawsuit) must be filed by an appointed representative of the deceased person’s estate. The law requires that specific evidence be presented to satisfy the family’s legal burden to prove a wrongful death claim.

A wrongful death lawyer is the type of lawyer that helps a grieving family navigate the law, collect and apply the facts to the law and successfully recover the compensation the family is entitled to for the loss of their loved one.

What are some examples of Wrongful Death claim?

Individuals and companies can be held liable if their actions (or inactions) cause someone’s death. A Wrongful Death claim can involve a death caused by:

Car accidents:

  • When two vehicles collide or a vehicle collides with a pedestrian fatal injuries could occur. Reasons can include if a driver was texting, talking on the phone, distracted while driving, intoxicated, falling asleep, speeding, driving recklessly and failing to yield.

Truck accidents:

  • Accidents involving a commercial vehicle, such as a tractor trailer, USPS mail truck, FedEX/UPS truck, and Amazon truck can be caused by the same reasons as a car accident.
  • The owner of the commercial vehicle could be held liable if the accident was caused by an improperly loaded or poorly maintained truck.

Construction site accidents

  • New York State has labor laws that require construction site owners and contractors to ensure the safety of the worksite and the workers. If the owner or contractor fails to do so and a worker dies, the worker’s family members may be able to recover compensation through a wrongful death claim.
  • New York’s labor laws are extremely complex, which makes working with a wrongful death lawyer who has experience and extensive knowledge in those laws a necessity.
  • Some examples of causes of death on a construction site are:
    • Falling objects, such as tools and materials
    • Falling, such as off a roof, ladder or scaffold
    • Fires or explosions
    • Dangerous machines, tools and/or materials
    • Negligent operation of a machine or vehicle, such as a bulldozer, dump truck or excavator
    • Negligent handling and movement of heavy materials
    • Electrocution

Medical malpractice:
When a medical provider (doctor/nurse) or medical facility fails to act according to the “accepted standard of care” and that failure is a cause of the death the surviving family members may have a wrongful death claim.

Some examples are:

  • A missed or delayed diagnosis of a condition, such as cancer
  • An error during a surgery
  • Failure to properly monitor a patient
  • Anesthesia error during surgery
  • Medication errors, such as the wrong medication or failing to give the medication
  • Undiagnosed and/or untreated infections

Other examples:

  • Nursing home negligence
  • Defective products
  • Motorcycle accidents
  • Pedestrian or bicycle accidents
  • Slip/Trip and fall (premises liability)

How long do you have to file a Wrongful Death lawsuit?

It is in your best interest to immediately start the investigation into whether you/Estate has a valid Wrongful Death claim after an accident/death of a loved one.

There is a time limit called a “statute of limitation” on how long you/Estate has to file a Wrongful Death lawsuit in New York. You must bring a formal lawsuit before the statute of limitations expires or you/Estate will be forever barred from doing so.

The statute of limitation depends on who the negligent party was. It can be as short as one (1) year from the date of the death or as long as two (2) years from the date of death. You/Estate may also be required to file a “Notice of Claim” with any municipality involved in the accident within ninety (90) days of the incident.

Determining what the applicable statute of limitation is for the loss of your loved one is another example as to why a Wrongful Death lawyer should be contacted.

Types of Damages in a Wrongful Death Claim:

  • Lost future income/earnings the deceased would have contributed had they survived and continued to work
  • Lost income/earnings from person’s injury until their death
  • Medical expenses relating to person’s injury through death
  • Funeral and burial expenses
  • Loss of employee benefits, pensions, etc.

Sadly, unlike the majority of other states in the country, New York does not allow for the family to recover for their pain (heartache), mental anguish and loss of companionship due to the loss of their loved one. As a profession, we are trying to change this. The Grieving Families Act has been passed by both the NYS Senate and Assembly and presented to Governor Hochul twice and both times the Governor vetoed (not signed) it. We will continue

If the deceased was conscious and suffered pain before their death another claim can be pursued, which is called a conscious pain and suffering claim. This claim compensates the family for the pain and suffering experienced by the deceased in the time period between the accident and their death.

Under the law, the conscious pain and suffering claim belongs to the estate and if there is a recovery, the monies are distributed according to the terms of the deceased’s Will or, if there is no Will, then based on a formula provided under what are referred to as the laws of intestacy.

How much does it cost to hire a Wrongful Death lawyer?

There’s no cost to find out whether you have a case. There is also no upfront costs to pursue a case, should you have one. If there is a successful outcome, we receive our costs and a percentage of what you receive called a contingency fee. The exact percentage depends upon what caused the actual death (i.e. auto accident vs. medical malpractice, etc.).

In New York, the contingency fee for negligence cases, such as a car accident, slip/trip fall and construction accident, is one-third (33.3%) of the total damages paid. Percentage is calculated on the net amount after expenses and disbursements are deducted.

New York’s Judiciary Law Section 474-A, sets the amount of the contingency fee for medical malpractice based upon a “sliding scale” starting at 30% and reducing to as little as 10% depending upon the amount of the recovery. Percentages are calculated on the net amount after expenses and disbursements are deducted. Expenses are costs such as medical expert reviews/testimony, court filing fees, medical records and other costs to properly pursue the claim.

Contact Kammholz Law PLLC for a Free Consultation

If a family member has been killed and you believe it is the result of someone’s negligence you should consult with a lawyer as soon as possible. The earlier an investigation is done the better. Witnesses may leave the area or will forget details the longer time goes by.

At Kammholz Law, we are experienced and compassionate lawyers, who have helped other families in Rochester and across upstate New York not only recover compensation but helped them heal and move forward with their lives after losing someone they loved.