Times Herald-Record: Expansive liability legislation will disrupt NY’s legal and economic stability | Opinion
By: Claire F. Rush
Gov. Kathy Hochul will soon decide whether to sign or veto a bill that has raised significant concerns among lawyers, medical professionals, local government leaders, small businesses and every step of the supply chain. The bill has already met Hochul's veto pen twice, and she should reject it once again. Despite minor adjustments to the bill’s language each time, lawmakers in Albany continue to pass a proposal in which the core concerns have yet to be resolved — and they have yet to follow their own rules and analyze the fiscal impact on taxpayers and the state’s economy.
The bill, which seeks to broaden the scope of damages recoverable in wrongful death lawsuits, would allow for compensation for grief, anguish, and loss of companionship. It would also expand the class of eligible plaintiffs beyond current standards. While ensuring grieving families receive the justice they deserve is crucial, legal avenues for fair compensation already exist, and as written, the bill will drastically reshape the legal landscape in ways that could have far-reaching and negative consequences for the state.
Under this bill, new categories of claimants would be able to claim compensation, not just immediate family members. This is a stark departure from New York’s existing framework, where only those directly connected by law, such as spouses and children, can seek recovery for loss. The bill’s attempt to expand eligibility to a broader universe of claimants could lead to prolonged litigation that stretches the resources of New York’s court system and leads to legal outcomes that are both unpredictable and inequitable.
In addition to expanding the class of plaintiffs, the bill introduces compensation for vague emotional damages. While grief, anguish, and loss are undeniably painful emotions, they are impossible to quantify. Unlike physical injuries, which can be documented and have measurable costs, emotional harm is abstract, leading to varying interpretations and awards. Allowing juries to allocate damages for such deeply personal, subjective experiences without any clear guidelines creates the potential for arbitrary decisions and outsized awards. These types of determinations are often speculative, and prone to significant variance based on the individual circumstances of each case.
The bill also proposes retroactively applying these provisions to wrongful death cases dating back to 2021. Such a move would upend cases that have already been resolved or are in progress, reopening old wounds and introducing uncertainty into the legal process. This retroactivity would not only undermine the finality of legal judgments but would also create a surge of appeals, and new lawsuits from previously barred claimants, clogging New York’s already burdened court system. Defendants, who settled cases in good faith based on the laws as they stood, would now be forced to defend themselves against newly introduced claims for emotional damages from a variety of new litigants. This shift would erode trust in the fairness of the legal system, creating an atmosphere where no case, no matter how settled it appears, is truly final.
While the bill’s supporters argue that this measure brings New York in line with the practices of other states, this comparison is misleading. Most states impose strict limits on the damages recoverable in wrongful death cases, often capping non-economic damages or restricting the types of plaintiffs who can bring a claim—typically limited to the surviving spouse or next of kin. Many states also protect government entities from excessive liability by modifying joint and several liability rules and raising the standards for negligence. The bill heading to Gov. Hochul, however, lacks such safeguards.
New York’s current law already provides for substantial compensation for the emotional and physical pain a decedent may have endured before their death, and the loss felt by surviving family members is also compensable under existing statutes. New York courts routinely return substantial verdicts in wrongful death cases.
This bill, as it stands, threatens to disrupt New York’s legal and economic systems. Lawmakers must address the legitimate concerns of grieving families while crafting policies that maintain fairness and predictability, both in the courtroom and in the broader economy. This bill, as written, falls short of that standard. Albany can — and should — do better.
Claire F. Rush, Esq. is a partner at Barry McTiernan & Moore and a past president and former chair of the board of directors at the Defense Association of New York.