Legislation that would expand NY's wrongful death statute has supporters on LI

What's a life worth — and who should pay?

Family of those who die because someone else is at fault would be allowed to sue for emotional losses — not just damages like lost earning potential and funeral expenses — under legislation before Gov. Kathy Hochul.

The legislation, called the Grieving Families Act, would expand the state’s wrongful death statute, which dates to 1847 and limits damages largely to what a dead person would have otherwise earned.

Supporters of the expansion say the 175-year-old status quo is antiquated and insufficiently recompenses grieving families for unimaginable loss. But the legislation has drawn opposition from dozens of groups representing municipalities, insurers, manufacturers, health providers and builders that warn of increased costs to the public. One such coalition predicts a "disastrous impact.”

Changing the law would have far-reaching implications on Long Island and statewide, both for pending litigation and future cases. It has been several families of those who prematurely died in especially horrible circumstances in recent years who have been lobbying Albany.

They include Kurt Kiess, whose son, Ryan J. Kiess, 25, of Manhasset, was one of five killed in a head-on wreck in Quogue exactly one year ago.

"I will never get my lifelong experiences that I missed with my son back. I will never get them. I’ll never see him become a father or play with his children,” the father said, adding: “The money aspect of it is closure for families.”

Another supporter: Alisa McMorris of Wading River, whose son, Andrew, was killed in 2018 by a drunken driver while he and fellow Boy Scouts were hiking in Manorville. She has pending litigation over her son's death.

“Andrew’s death at 12 years old has no worth in the eyes of NYS because he could not contribute financially to our family. Somehow everything my little boy gave to our family — music and laughter — his love and deep hugs — is not valued,” McMorris said Friday in a text message.

Under the status quo, the family of a Wall Street tycoon can collect millions if he’s killed by a drunken driver, but under the same circumstance, the parents of a child killed by that same drunken driver would essentially be entitled to far less, or nothing, because the child was earning nothing at the time of death.

“A child is worthless in the eyes of New York State. If a homemaker who is taking care of children is killed wrongfully, there’s no recovery,” said Assemb. Helene E. Weinstein of Brooklyn, a prime sponsor who’s been trying to get the law changed since 1994. She added: “There’s a lack of recognition in our state that families have changed.”

Mourners support, others have concerns

The legislation would broaden wrongful death to cover grief, anguish, "loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death," as well as “loss of nurture, guidance, counsel, advice, training, and education.”

It also would both expand who would count as kin entitled to sue and lengthen the statute of limitations.

It's the first time such legislation has passed both chambers, Weinstein said. The vote, held in early June, was 147-2 in the Assembly and 57-6 in the State Senate.

Hochul is reviewing the legislation, according to an email Thursday from her spokesman Avi Small.

Once legislation is sent to the governor — the Grieving Families Act hadn’t yet been sent as of Thursday, Small said — she has 10 days to sign or veto it or it automatically becomes law. The legislature has until the end of the calendar year to send it.

Opponents argue that an estate can already collect damages under a survivorship cause of action for pain and suffering prior to death; that taxes and insurance premiums would need to rise; and that a broader law is prone to abuse.

“Such non-pecuniary damages are notoriously difficult to determine objectively and are prone to manipulation by plaintiffs’ attorneys who seek to emotionally sway judges and juries,” said a letter to Hochul from the Association of Towns, the New York Conference of Mayors and the New York State Association of Counties.

To address such fears, supporters note that although New York was the first in America to create a legal right to sue for wrongful death, the state is among the few that still limit such lawsuits essentially to economic losses.

“This bill is actually going to put New York in the same lines as what the rest of the country does,” said Jill Wieber Lens, a professor at University of Arkansas School of Law who has written about the legal history of wrongful death.

But the Grieving Families Act does go further than what’s in many states, she said, by covering grief and anguish.

Lens said that survivorship claims — one of the avenues opponents of the legislation cite as a reason the Grieving Families Act is unnecessary — cover injuries a person suffered before dying. But if there are no injuries before death — for example, death was instantaneous or it cannot be proven otherwise — the estate gets nothing. 

'They had futures'

In the head-on crash in Quogue that killed Ryan J. Kiess and four others on July 24, 2021, the driver of the other car had been pursued by a village police officer and was speeding at 106 mph. Seconds later, that car slammed into the packed Uber that Kiess, his friends and girlfriend were riding in as it rounded a corner.

Except for the Uber driver, none of the victims had dependents, so under the current law it’s difficult if not impossible for their families to recover damages in New York.

“They had futures. They had everything. But they had no dependents. Nobody was living off their income,” said Kurt Kiess, who has filed litigation against Suffolk County over the road design and the village police for the officer’s actions just before the crash. His voice broke with emotion as he spoke.

Even if a court awards damages, Kiess said, “It doesn’t replace your loss. Nobody can value the loss, because nobody knows what that loss is worth until you lose it. I lost it." 

Kiess’ assemblywoman, Gina Sillitti of Port Washington, learned of the Grieving Families Act during a meeting with Kiess, who persuaded her to back it. She said she got hundreds of messages, some in opposition, most in favor.

“It really hit Manhasset hard, the death of these boys. And so, I received, when I tell you hundreds of emails — hundreds of emails — from constituents asking me to support this and asking me to put it to passage,” she said.

Nancy DiMonte of East Northport, a spokeswoman for the families of those killed or hurt in a deadly 2015 limousine crash in Cutchogue, was among those who wrote lawmakers advocating for the legislation. 

“With the tragedies that happen, so many family members who are left behind to live with the grief and the anguish are not sufficiently taken care of, often overlooked,” said DiMonte, whose daughter, Joelle, then 25, was seriously injured but survived.

The families have pending litigation, she said.

Despite New York's current law limiting wrongful death, sometimes litigation is nonetheless settled because of extrajudicial factors like defendants' fears of bad publicity, public pressure, or maybe even a sense of right and wrong, said sponsor State Sen. Brad Hoylman of Manhattan. But, he said, “the truth is not every case settles, and a judge and a jury are limited to consider what's in the statute.”

By Matthew Chayes

matthew.chayes@newsday.comchayesmatthew

Matthew Chayes, a Newsday reporter since 2007, covers New York City.