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in each state, this analysis is greatly impacted by the distinctions drawn between wrongful death (usually pecuniary) and survivorship actions (usually pain and suffering and pre-impact terror) established by some states.
Before a litigant can even consider the merits of a wrongful death action, fault must first be established, which is often no easy task. Depending upon the jurisdiction, a single set of facts can lead to innumerable different outcomes. This article analyzes the law concerning construction-related death actions across several states, presenting the differing approaches and significant similarities between them.
DEATH CAUSES OF ACTION IN NEW YORK STATE
Overview of Negligence and Labor Law in Construction Accidents Under New York Law
New York has established a unique and expansive statutory framework related to construction
claims known as the New York Labor Law. In particular, there are three critical provisions of New York Labor Law which govern most construction accidents in New York: Labor Law 200, Labor Law 240(1), and Labor Law 241(6). Causes of action brought under these provisions typically involve complex analysis of precedent interpreting the language of the provisions.
In brief, Labor Law 200 is essentially a codification of common law negligence. Such principles involve proving the existence of a duty, and a breach of that duty generally necessitating actual or constructive notice or that the defendant caused or created the defect. Labor Law 240(1) holds owners, contractors, and their agents who perform certain specific types of construction work liable for height and other gravity-related accidents. This provision is extremely broad and tends to be enforced as a quasi-strict liability cause of action. Lastly, Labor Law 241(6) establishes a cause of action requiring a plaintiff to prove an underlying violation of an applicable safety code.
New York has further established an exception to Worker’s Compensation laws, such that an action may be brought against plaintiff’s employer under certain limited circumstances. Specifically, in claims of a grave injury, which includes death, an employer can be impleaded for common law indemnity and contribution. In addition, a plaintiff ’s employer may be impleaded as a third-party if there is a contractual indemnification provision in the employer’s contract.
Wrongful Death
In an action brought in New York State to recover damages for a person’s death, there are two separate and distinct causes of action: survivorship and wrongful death. The survivorship cause of action belongs to the estate for the decedent’s pain and suffering prior to death. The wrongful death cause of action belongs to those distributees who have suffered pecuniary loss by reason of death. Distributees are determined strictly by statute.
Because of this dichotomy, there may be more than one plaintiff in a death case as well as separate statutes of limitations for each cause of action. In order to properly address a death case, a New York attorney must keep in mind that there are two separate and distinct causes of action -- survivorship and wrongful death - and each action should be treated and evaluated independently of the other.
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