For the second time in two years, Governor Hochul has vetoed the Grieving Families Act, an important piece of legislation which aimed to allow the families of wrongful death victims to recover compensation for emotional anguish.
New York’s antiquated wrongful death law allows compensation only for pecuniary losses, such as lost wages, and recognizes no recovery for emotional grief and anguish occasioned by the death. New York lawmakers passed the first version of the act in mid-2022, seeking to update the law by:
According to the 2022 Bill’s sponsors, these changes were justified because New York’s 170-year-old wrongful death law “in essence, says that the attributes of our family members that we most value–emotional support, love, companionship, advice and guidance–count for nothing.”
William Mattar, P.C. was a vocal supporter of the 2022 Bill and urged the Governor to sign it into law. We have seen, time and time again, the emotional anguish people endure when a loved one is wrongfully taken from them due to the negligence of another. As a matter of logic and public policy, why shouldn’t the person who caused that harm pay for it?
The Governor, unfortunately, chose to veto the 2022 Bill.
Writing in an op-ed published in the New York Daily News, the Governor acknowledged that the current law does not compensate for the emotional toll of wrongful death and recognized the need to make change. At the same time, the Governor found that the 2022 Bill lacked “a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the state’s complex health care system.” The Governor expressed concern that an update to the wrongful death framework could have “unintended consequences,” including driving up health insurance premiums and adding costs to hospitals.
Lawmakers immediately responded by passing a revised Grieving Families Act, S06636 and A06698, in mid-2023. Instead of a statute of limitations of three years and six months, as originally proposed, the revised bill provided for a three-year statute of limitations. Its provisions would “take effect immediately and . . . apply to all causes of action that accrue on or after July 1, 2018, regardless of when filed.”
Among other changes, the amended Grieving Families Act provided for a more restrictive definition of “surviving close family member,” which was “limited to”:
“Decedent’s spouse or domestic partner, issue, foster-children, step-children, and step-grandchildren, parents, grandparents, stepparents, siblings or any person standing in loco parentis to the decedent. The finder of fact shall determine which persons are entitled to damages as close family members of the decedent under this section based upon the specific circumstances relating to the person’s relationship with the decedent.”
In loco parentis is a Latin term, meaning “in the place of a parent.” The revised definition of “surviving close family member” was a contrast from the more open-ended definition included in the 2022 Bill, which had specified that the term was not “limited to” the class of persons explicitly identified in the definition. The revised Grieving Families Act also restricted the types of damages that could be recovered.
In May 2023, the law was passed with overwhelming bipartisan support.
Lawmakers were hopeful that this “more narrowly tailored” version of the Grieving Families Act would gain the approval of the Governor by “clarifying the bill’s retroactive effect, limiting the types of damages that can be recovered, reducing the extension of the statute of limitations, and clearly defining which is a close family member eligible to recover.”
On December 29, 2023 the Governor disapproved the revised bill, writing in a veto memo that it “did not create the requisite balance and against introduces the potential for significant unintended consequences.” The Governor again reiterated her concern that the Grieving Families Act, even as revised, would “likely lead to increased insurance premiums” and create a hardship for health care providers. The Governor left the door open to “work collaboratively to find holistic solutions that support impacted families without introducing potential unintended consequences,” but the second veto in as many years is nothing short of devastating.
The death of a family member causes profound shock and confusion, particularly when it was caused by the negligence or wrongdoing of another. Nothing can bring a family member back. Surviving family members must find the strength to move on without the presence of their loved one, often leading to feelings of intense sadness that hopefully diminish as the grieving process plays out.
As noted, New York’s existing wrongful death law, passed way back in the 19th Century, only provides compensation for pecuniary damages, meaning tangible economic losses such as lost wages. Damages for emotional anguish arising from loss of love, society, protection, comfort and companionship are not compensated. The law elevates the importance of “breadwinners” and fails to recognize the value of other family members who contribute to the family in non-pecuniary ways. New York does recognize a right to compensation for the very real damages grief-stricken families experience when their loved one is wrongfully taken from them.
The “harsh anomaly of the current wrongful death law,” repeatedly noted by lawmakers, is difficult to fathom. Someone injured by the negligence of another can generally bring a claim for compensatory damages, including future pain and suffering over an extended period, meant to compensate the injured person for anguish experienced over the remainder of life. Emotional anguish and suffering experienced after the loss of a loved one may be different than that experienced after a permanent injury, but is anguish and suffering, nonetheless.
William Mattar, P.C. is hopeful that lawmakers keep trying to fix New York’s outmoded wrongful death law and will continue to monitor legislative activities in this area.