In John Langan v St. Vincent's Hospital of New York (2005 NY Slip Op 07495), a New York state appellate court decided last month that a same-sex partner could not proceed with a wrongful death lawsuit on behalf of the deceased. The deceased and his partner were citizens of New York who had travelled to Vermont to be joined in a civil union. In February 2002 the deceased was hit by a car and suffered a severe fracture requiring hospitalization at St. Vincent's Hospital of New York. After two surgeries Conrad died. Naturally, his partner claims that St. Vincent's negligence caused the death.
But as all lawyers know, wrongful death is almost everywhere based on statute, not on common law. The relevant portion of New York's wrongful death statute provides as follows:
"The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent's death".
The class of "distributees" is set forth in the statute. Included in that class is a surviving spouse. Homosexual partners are not spouses.
Two of five judges declined to interpret the statute, however, claiming that New York had no "rational reason" to distinguish, in its wrongful death statute, between spouses and homosexual partners. Linguistic rules, judicial restraint and the "rational" recognition of marriage prevailed for the majority, however.