Contributing Writer
This article originally appeared on our substack
Kurt Kiess breaks down as he talks about his son, Ryan. Ryan was killed in a vicious car accident in Long Island and since his death Kiess has petitioned a bill in Albany that would allow families to sue for emotional loss. At Kiess’ office in Manhattan, New York, N.Y. on Wednesday May 18, 2022. (Wes Parnell/Lost Debate)
Ryan Kiess had invited friends over to tour his humble new apartment, an above-garage unit in his parents’ home on Long Island.
Kiess, 25, recently bagged a promotion at KPMG, a Big Four accounting firm. It was a career breakthrough for a young man set on marrying his college sweetheart. Their lives together were finally beginning to take shape.
“He was hosting and boasting,” said Kiess’s father, Kurt. “He had all of his friends over, and he was proud.”
Instead of driving on that sticky Saturday night last summer, Kiess called an Uber to take him, his girlfriend, and two childhood friends down to the shore to dance. They rounded the bend on Montauk Highway just after 11 p.m. on July 24, when their Uber collided head first into a Nissan Maxima barreling down the wrong lane.
The cars scraped into a pile of shrapnel and hissing steel just outside the village of Quogue. The bodies were carted one by one from the crash site to the hospital—and then to the morgue. Only Kiess’s girlfriend survived, but barely at that; she was left devoid of her memory and most motor functions.
In the wake of his son’s death, Kurt mounted up to sue the Village of Quogue for unsafe roads and the Quogue Police Department for causing the accident by chasing the Nissan Maxima down the narrow roads.
To his surprise, New York, despite its progressive reputation, has some of the most restrictive tort laws in the country. The state bars parents like Kurt from seeking damages for emotional loss, instead limiting plaintiffs’ awards to economic losses like medical bills, funeral expenses, and what the victim would have earned if he hadn’t died.
“It’s not just about my son. I just think that altogether the law is wrong,” said Kurt, referring to the current law that dates back to the 1840s. “The money doesn’t mean anything to me. It doesn’t change my life one way or the other but I do think that it makes people more accountable for their actions.”
According to the New York Public Interest Research Group (NYPIRG), New York is one of only two states, along with Alabama, that doesn’t allow for any form of emotional compensation. Most states allow plaintiffs to sue for loss of companionship, while 20 states allow for compensation based on grief and anguish. “New York’s 1847 Wrongful Death Law fails to deliver justice by not placing value on the loss of the love, affection, companionship, and comfort that New Yorkers are deprived of when a loved one’s life is wrongfully taken,” said NYPIRG in a press release.
Neither the Village of Quogue nor its police department wished to comment.
But Kurt wouldn’t accept New York’s law as a given. Since the crash, he’s become an ardent activist for a bill in Albany known as the Grieving Families Act. The act would expand the eligible claims for wrongful death suits and change the current metric—an award based on a victim’s income—to a more subjective measure: the emotional loss incurred by the family or close relatives.
Despite wide bipartisan support, the act has bounced between committees for years. However, in May, the bill passed in both the Senate and the House, thanks in part to the activism of Kurt and other grieving families. The bill is sitting on Governor Hochul’s desk, awaiting her decision.
Unless the governor signs the bill, Kurt cannot sue for any emotional damage that the crash caused his family; he is limited only to economic losses—what his son might have made in his lifetime. For Kiess, that number is $20 million. (Wrongful death claims are usually filed at a higher price in expectation that they will be negotiated down.)
If his son were a janitor or unemployed, that dollar amount would be far less. However, would that make the loss any less difficult for the family? If his son were an infant, the worth of his life would be even more challenging to quantify.
The bill’s primary sponsor, Senator Brad Hoylman, pointed out the strange logic of the current law. “Under the current law, a landlord with tenants that are low-income, children, or seniors does not bear the same amount of financial responsibility for those tenants’ lives as a landlord who owns a building full of bankers,” said Hoylman.
The victims of the recent Bronx fire, an inferno that killed 19, recently petitioned the bill for the reasons Hoylman pointed out, arguing it would open up legal recourse, particularly for families whose victims were children or low-income earners.
However, critics believe there are tangible downsides to the proposed changes, saying that assigning dollar values to emotional distress is no easy task.“The biggest problem is how do you subjectively assess someone’s emotional damages?” said Nicholas Ramchartiar, a criminal justice attorney based in Queens. The vaguer the standard, the higher the potential litigation costs.
“I think the statute fails to define the terms very specifically, which is what is going to be litigated in court. And that’s what we’re gonna have to wait to have defined,” said Ramcharitar. “It’s unfortunately vague in terms of encapsulating emotional damages.”
And if New York’s laws were antiquated, the update swings the pendulum in the opposite direction, going further than in most states. The new bill allows for compensation based on a host of factors, including grief or anguish, as well as loss of love, society, protection, comfort, companionship, and consortium resulting from the decedent’s death. This could also include the loss of nurture, guidance, counsel, advice, training, and education.
The bill also expands the number of defendants who can sue in a wrongful death suit. In New York, most wrongful death suits are brought by one complainant. The new provision opens up the possibility of there being multiple complainants loosely defined as “surviving close family members.” A step further, the bill allows the court to define “close family members” based on their relationship with the deceased, implying a close friend or roommate could file for damages.
“We’ve expanded it into this exponential world,” Ramcharitar said. “It’s a good thing, the whole thing is a good thing, but how do you define the subjective?”
While the bill passed with an overwhelming majority, it is unclear whether Hochul will sign it. “Governor Hochul is reviewing the legislation,” said Avi Small, a spokesperson for the governor, without adding further details.
Though there is tremendous pressure coming from plaintiffs like the Kiess family, there are plenty of powerful forces lined up against them. Insurance companies and hospitals have long lobbied against the expansion of wrongful death compensation, arguing it would open them to further litigation, and in turn, increase premiums for New Yorkers across the state.
A report commissioned by the New York Civil Justice Institute estimated that passing the bill would increase insurance premiums for New Yorkers by $2.14 billion, or 11.1%. “This dramatic increase would be paid by all New Yorkers and result in additional strain on household budgets through higher insurance premiums, health care costs, taxes, and many other necessary goods and services,” said Cassandra Anderson, Vice President of the New York Insurance Association.
“I’m sure these private interests will be lobbying the governor to veto the bill or gut it with chapter amendments in an attempt to weaken it,” said Hoylman, referring to the insurance and hospital industries. “But we’ll be prepared to educate the Governor and our colleagues of the merits of the current version of the legislation that passed both houses of the legislature with over 90% of the vote.”
In the meantime, Kurt insists that bodies such as the Village of Quogue or their police department will not be held responsible unless financially pressured.
“Some people think we are money-hungry people. Money is not going to make a difference. I said I would give it away,” Kurt said. “Nothing can bring back my son, but this will at least help other families.
