New Jersey law presently allows for two types of claims that can be brought when dealing with a fatality resulting from the negligent conduct of another.  They are the Wrongful Death and Survival Actions and they differ significantly as to the damages that can be recovered, the beneficiaries of the compensation, and the legal representative that can bring the claim.

Survival Action claims are brought for the damages that are sustained by the decedent from the onset of the injury caused by the negligent act (a tort) to the decedent’s death.  Generally, these damages consist of conscious pain and suffering claims, funeral expenses, medical bills, and lost wages that accrue between the time of injury and death.  Since these damages are damages that the decedent sustained, these damages will “pass through” the decedent’s estate.  This means that the only person with the legal capacity to bring a suit for the Survival Action is the Administrator or Executor of the Estate. The beneficiaries of the Estate’s recovery for a Survival Action will be limited to the heirs of the Estate whether named in a will or, if there is no will, determined by the laws of intestacy.

Wrongful Death claims are designed by our laws to compensate, in part, the people that sustained economic losses from the death of a loved one.  The emotional anguish and consequences of sustaining a tragic loss of a family member are not recoverable pursuant to the limitations of the laws of New Jersey.  Only the pecuniary losses are recoverable, which are the monetary value of the losses that the decedent may have provided or been expected to provide to the survivors.  These are specified as such things as financial support, advice, household services, guidance, care, companionship and comfort.

These pecuniary losses are determined to have a financial value, which can be awarded by the jury in a trial involving the death of another.  The courts are required to instruct the jury that they are not to award for the emotional component of the losses, only the financial value of the losses.  Courts will instruct a jury that they are not to consider the emotional satisfaction that would have been provided had the decedent lived, such as seeing a daughter walk down the aisle on her wedding day or the inability to hug a child.  These are the limitations that New Jersey law imposes on the potential recovery in a wrongful death action.

Kamensky Cohen is presently involved in several wrongful death claims that differ vastly in the amounts that can be recovered.  An example is a case involving a mother struck by a car who died instantly.  As there was no conscious pain and suffering due to the instantaneous death, and the woman did not work outside her home, the recovery is limited to the amount that a jury would award for the loss of advice, household services, guidance, care, companionship and comfort that might have been available to those entitled to receive those elements of damages in the remaining lifetime.  Our jury verdict research coupled with years of experience handling these matters, tells us that these cases are resolved for low six figure amounts.  If, however, the mother in question suffers for hours or days before her death and/or has had substantial earnings with a long remaining work life expectancy the damages that are recoverable could be in the millions.  While this does not seem fair or just to the survivors of such a tragic loss, this is New Jersey law as it presently stands, seeming to favor only those losses that can be quantified by economics.  While it is understood that no money can compensate for the emotional loss of a loved one, it is equally difficult to understand the legislators thinking in these arbitrary standards as to what “loss” is and what kinds of “value” to place upon it.

In any case, should your family face the tragedy of the loss of a loved one due to negligence of another, seek experienced legal advice and representation.  A good lawyer can help your family recover damages and, to the extent that it can ever be, help you address your grievances.

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