How Does the Marriage Equality Act Affect New York Accident Victims?

Same-Sex Marriages and Personal Injury Cases

Same-sex marriages changes New York personal injury law in three?areas, loss of consortium and services, wrongful death,and the "zone of danger" in negligent infliction of emotional distress.

A. Loss of Services for Spouses

It is well established law in New York that the non-injured spouse of an accident victim can have a claim for loss or consortium or loss of services.

Loss of services is the damage that the non-injured spouse sustained, such as loss of society and companionship, changes in their social life, changes in the management of the household and the children, and interruption and changes in sexual relations.? For example, if the non-injured spouse must take-up all of the household duties, such as cooking and cleaning, then the jury can consider this as damage.? If the non-injured spouse had to take-up all child-rearing responsibilities (such as taking the children to school, picking them up, and taking them to after-school activities), the jury can consider this and can assign a monetary loss.

In the classic case, one spouse is involved in a car accident. That individual would have claims for his injuries.? However, even though the other spouse was safe at home when the accident happened, the non-injured spouse would have a claim or cause of action for loss of services if the injuries affected their relationship.? For example, if sexual contact ceased, this would be damages to the non-injured spouse.? The non-injured spouse could also claim damage if he or she had to assume all of the heavy housework duties that their spouse used to do.? The plaintiffs would be John Doe and John Doe or Jane Doe and Jane Doe.

The loss of services claim can only be interposed by a spouse.? It cannot be claimed by a ?partner? or ?significant other? or ?companion.?? Similarly, the loss of services claim cannot be made by a domestic partner who is registered with the City Clerk as part of a Domestic Partnership.

B. Wrongful Death

Under New York law a "significant other" or a "domestic partner" or a "mistress" or a "companion" would have no inheritance rights. However, now same-sex spouses have full inheritance rights.

In a wrongful death case, a surviving spouse (whether same-sex or not) would have certain rights of survival and lost support due to the death of the spouse. Therefore, a surviving spouse from a?same-sex marriage would have certain survival rights and standing to prosecute a wrongful death case for?the deceased spouse: a surviving spouse from a same-sex marriage could bring the lawsuit as well as share in the estate. Often, where there are no children, the surviving spouse may take the entire estate.

C. "Zone of Danger" and Emotional Distress

In the situation where a loved one is injured, the courts have limited recovery to relatives who witness the injury and who are not injured. The relative must be in the "zone of danger". Additionally, the relative must have sustained a psychological injury.

For example, assume that the father is on the second floor of her house watching his child play outside. The child goes into the street, and the father witnesses her child being struck and killed by a speeding automobile. Even though the father suffered great psychological injury in witnessing the death of his child, the father would have no claim for the negligent infliction of emotional distress against the motorist. Under the law, the father was outside the "zone of danger". However, let's change the hypothetical and assume that the father is pushing a baby stroller across a street. A speeding and reckless driver?goes through the light and kills the infant who is being pushed by the father.? In this case the father would have been within "zone of danger", and he would have a case against the motorist for the negligent infliction of emotional distress. The father would have this claim even though she suffered no physical injury.

If we were to assume that a same-sex couple had a child (either biologically or through adoption), then it could be argued that either one of the parents would have a negligent infliction of emotional injury claim.

Of course, every case is different and the facts of your case may not fit neatly into the three scenarios as described above. However, as the laws change, your legal rights change as well.