New York Law Journal: After January Veto, Revised Grieving Families Act Slated for Legislative Review

By: Brian Lee

A reworked Grieving Families Act, a major New York bill working its way through the legislative session, four months after Gov. Kathy Hochul vetoed a prior version, intends to reform and modernize the state’s 176-year-old wrongful death statute by allowing extended family the ability to file claims.

However, a retroactivity component allowing for any cause of action accruing on or after July 1, 2018, remains a deep concern for some legal observers, as the bill is slated for the Assembly Judiciary Committee’s May 16 agenda.

“It’s just maybe a little ambitious to have the lookback,” Hurwitz Fine Associate Eric Andrew of Buffalo said Monday.

New York is one of three states that severely limits wrongful death lawsuits that seek damages for negligence, malpractice, and/or intentional torts. Only children, parents, spouses or a personal representative for the estate of the decedent can file claims.

The new proposal opens it up to domestic partners, foster children, stepchildren, step-grandchildren, grandparents, step-parents, siblings or any person standing in “loco parentis” to the decedent.

Last year’s version contained a more open-ended definition of “close family members.”

Two attorneys who worked closely with lawmakers in writing the new proposal spell out that the trier of fact has to prove that not only was he or she related to the deceased person, but that it was, in fact, a close relationship.

It means that a father, for instance, who had no relationship with a deceased child, would not be eligible for damages under the proposal.

The advocating attorneys, who asked that they not be identified, said lawmakers wanted it understood and highlighted that the idea behind the law was, in particular, about two horrific tragedies: the deadly October 2018 Schoharie limousine crash that killed 20 people, including all 17 passengers who were en route to a high school prom, the driver and two pedestrians; and the racially-motivated mass shooting that killed 10 people at Tops supermarket in Buffalo one year ago Sunday.

“Those grandmothers and those grandparents who were out there taking care of their kids and taking care of their families—those lives are not worthless,” one of the attorneys said. “And that’s what this bill addressed. It’s making it very clear that grandma who helped raise the family is not an unimportant person, and not worthless.” 

“That the kids in Schoharie—yes they were teenagers. The fact that they’re not supporting anybody doesn’t make their lives worthless.”

This year’s proposal also differs from last year’s in that the latter would have affected every case pending, up to and including final appeals.

The wisdom was that if the GFA affected all those cases, it would open Pandora’s box to cases already in litigation. 

The revised proposal aims to cure that with the three-year statute of limitation and lookback to 2018, the attorneys said.

But Andrew of Buffalo said there will be significant opposition.

“The insurance companies look ahead to their reserves and their actuarial risk with the law that’s in place,” Andrew explained. “Once you start throwing in a retroactivity, you’re basically saying, ‘We’re going to make you accountable for damages that weren’t collectible or weren’t actionable.’ I think there’s going to be some opposition there.”

“I think that they’ve made some strides,” another bill opponent, Claire Rush, president of the Defense Association of New York, said. “I don’t think it should be retroactive because that creates uncertainty, and everything will go up in disarray. There will be appeals. Defendants need certainty. Insurance companies need certainty. We need to know what it is that we’re defending against.”

The New York Association of Towns, New York State Conference of Mayors and New York State Association of Counties wrote a joint letter to lawmakers opposing the bill, while the Lawsuit Reform Alliance of New York signed onto a letter with more than a dozen industry associations.

“Like the original bill, this amended language would radically expand the kinds of damages recoverable in wrongful death actions, driving up liability insurance costs for public and private entities across the state,” the coalition wrote.

State Sen. Brad Hoylman-Sigal, D-Manhattan, and Assembly Member Helene Weinstein, D-Queens, reintroduced the Grieving Families Act on May 2.

Weinstein said she first introduced the bill in 1994, and “will not give up in trying to persuade the governor that enacting this bill is the right thing to do for families, seniors, children, homemakers, and indeed all New Yorkers.”

Both houses of the legislature overwhelmingly passed the Grieving Families Act, with bipartisan support last year. Last year’s version was approved by the Senate, 58-7, while it coasted through the Assembly, 147-2. 

The advocating attorney said it was important to note that it received overwhelming legislative support in the face of “getting bombarded by pressure from all these groups, but they saw it through.”

Its endorsers include David Pucino, deputy chief counsel of Giffords Law Center to Prevent Gun Violence.

“For too long,” Pucino said in a statement, “New York law has placed outdated limits on wrongful death lawsuits. This has meant that families who are mourning the loss of a loved one are blocked from meaningful compensation, to the benefit of those who are responsible for the wrongful death. No amount of money can make these families whole, but the Grieving Families Act will make sure they at least receive the compensation to which they are entitled, and that those responsible cannot avoid full accountability.”

Rebecca Fischer, executive director of New Yorkers Against Gun Violence, said: “The families who are left behind, emotionally traumatized by horrific gun violence like the Tops shooting in Buffalo, deserve to have their pain matter. We look forward to working with the legislature to fix our broken wrongful death law and allow more victims the chance to seek justice.” 

Rush of DANY, said it is wrong to tie the wrongful death proposal to the Tops shooting massacre.

“I mean, how in the world was that supermarket supposed to provide security against a targeted attack by a racist?” Rush, a partner in Barry, McTiernan & Moore, asked. “Changing the wrongful death statute is not going to prevent that. Gun control, which we should clearly have in this country, would prevent that.” 

Rush added that the proposal presents “tremendous financial pressures that hospitals, municipalities, and these public authorities are going to suffer from. It’s sort of like an unlimited liability for each and every individual.”