1. We have to show that you are more likely right than wrong that the driver who hit your family member was careless.
  2. We have to show that the driver's carelessness was a substantial factor in causing or contributing to your family member's death.
  3. Ideally, we look carefully to determine if there are also elements of pain and suffering prior to death.

When I talk about having to show that we are more likely right than wrong, the legal phrasing is that we must prove negligence. Negligence, in it's most basic form is carelessness. We then have to show that the negligence was a substantial factor in causing injury and death.

Let's say for example a car loses control while driving down the street, jumped the curb and hits and kills a pedestrian.

We all know cars are not meant to drive on the sidewalk.

Instead, cars are meant to and designed to drive in the street, on designated roadways. A driver who loses control of their car may have already violated the basic rules of the road. A driver whose car then jumps onto the sidewalk again may have violated the Department of motor vehicle rules and regulations.

There are many instances where violating specific rules of the road in New York, in different counties or in different municipalities may be deemed some evidence of negligence.

We still need to show that the carelessness of the driver caused or contributed to your family member's death.

So how do we do that?

One of the best ways to determine what happened is to obtain the police accident report.

Whenever there is a pedestrian death, there is usually a detailed investigation done by the County or State police. In addition, the police accident report often will have the names and addresses of any eyewitnesses to the accident. That information provides us with a great starting point to allow us to conduct our own investigation about what these witnesses saw and observed.

  • We will typically hire an investigator to go to the scene of the accident and take photographs.
  • We will obtain the police accident report.
  • Our investigator will track down the various witnesses in order to obtain written statements from each of them.
  • There's a key reason for doing this.

As time moves on, our memories fade. Details are lost. This happens even in the sharpest minds.

When an investigator goes and locates a witness, the goal is to have the witness remember all the details of what they saw at the time of the accident. Either the investigator will prepare the written statement, using the witness's own words or he will have the witness write down, in their own handwriting and in their own words, exactly what they remember happening.

The witness will be asked to provide as much detailed information as possible.

The reason this is done is that if the case goes to trial years later, the witness will likely not remember all the details of what they saw. We can use their statements to refresh their memory of what they observed at the time of the accident.

We then notify the insurance company of the driver who lost control and hit and killed your family member. We put the insurance company on notice of a potential claim.

Then, we obtain the the ambulance call records. We might interview ambulance attendants as well as obtain any medical records that are available. If there was an autopsy done, which is a clinical examination of the person's body after death, then we will also obtain the medical records from the medical examiner's office.

Every detail is critical to determine not just how the incident happened but what occurred from the moment of impact until the time of death. The reason we need to know that information is to identify if your family member was conscious and aware of what was happening from the time of impact until their untimely death.

This would be known more commonly as pain and suffering.

When the family brings a lawsuit seeking compensation for the harms and losses they suffered because of someone else's carelessness, one of the claims that we include in this type of wrongful death case is a claim for the suffering and the pain their family member endured prior to his or her death.

If we are able to show through records and witness statements that the injured victim had some level of conscious awareness of what was happening to him, this will significantly increase the value of the pain and suffering claim in your case.

We also look to see whether the person who died was working and earning a living.

  • Was he supporting anyone?
  • Was there any family member who was relying upon his earnings?
  • If the answer is yes, then we would also include a claim for lost earnings and lost future earnings.
  • Legally, this is known as pecuniary loss.

In other words, we look to see whether the family has lost income as a result of the loss just suffered.

We also need to determine whether the person who died was receiving Medicare or Medicaid benefits. This is critically important because if they were receiving those types of benefits, if the family is successful in obtaining compensation, there are many instances where those two agencies will try and recoup money that they have paid for medical expenses relating to medical care and treatment from the time of the impact up until the time of death.

It is also extremely important to evaluate how much insurance coverage is available from the driver's insurance company before making a strategic decision about whether to proceed forward with a lawsuit.

This is basically an overview of what occurs when a pedestrian is hit and killed by a careless driver here in New York.

The surviving family members who choose to bring a lawsuit need to become educated and learn how the legal process works. You should be aware that as of today, April 1, 2014, the time limit in which the surviving family has to bring a lawsuit for wrongful death is only two years from the date of death.

It is also critical to know that you have only 30 days from the date of the accident in which to notify the driver's insurance company of this accident. There are important strategic reasons and legal reasons for doing so.


Under no circumstance should you rely on the information I just provided to you about the length of time you have in which to file a claim with no fault or the time in which to file lawsuit for wrongful death. There is an important reason for this.

As you know, time limits can and do frequently change. By the time you're reading this, it might be a day, week, year, or years later and these time limits may no longer be valid. The only true way to know whether or not your particular matter is valid is to pick up the phone and call. I can answer your legal questions and let you know whether or not your matter is timely. I do this every single day and I'd love to chat with you.

If you'd like to learn more about how wrongful death lawsuits work here in the state of New York, I urge you to download my book “In Case of Death,” for free. Click here to get a copy of my book.

If you have legal questions about your own particular matter, then I encourage you to pick up the phone and call me at 516-487-8207 or by e-mail at [email protected].

I look forward to your call.

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer
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