More tragic details unfold as a 7-year-old Long Island boy who watched his 6-year-old brother get "squished" to death by a Nassau County bus Tuesday night recounts the harrowing events. The surviving brother, Josue, speaks about the unimaginable tragedy in the innocent and sweetly simplistic words of a child: "The bus kind of fell on my brother . . . he fell down and got squished"; "Rocks fell on me . . . I was so afraid"; "I was sad. I was crying about him."; "I kind of wish nobody invented the bus, so he could still be alive and he would stay alive forever."
His parents, on top of the immeasurable sorrow from the loss of their child, are additionally tormented by the memory of hearing the "boom" of the bus crashing into their home and not being able to save their 6-year-old. The boys' mother and step father had been in the kitchen preparing the boys' lunches for school the next day when the bus struck around 9:30pm. The stepfather used a sledgehammer to break a window and get to Josue, but could not rescue his 6-year-old brother who had been pinned by the bus.
As the investigation into the crash continues, media coverage and public commentary swirl around criminal charges against the bus driver and the pedestrian who had crossed in front of the bus and frustration over a police comment that the 6-year-old was 'in the wrong place.' Undoubtedly there are parties to blame and to hold accountable for this crash. And undoubtedly the family members were innocent victims, simply in their home, doing nothing to bring about the awful events, but must bear the consequences of others' wrongfulness forever.
Although no amount of money can compensate an innocent family for their tragic loss they must forever suffer, the wrongful death law in New York functions like salt in the wounds in such cases. Unlike many other states, New York does not recognize grief, sorrow or mental anguish as an element of damages in a wrongful death case. New York is also in an extreme minority of states that do not recognize a loss of companionship-type of claim for parents who have lost a child. This injustice in the wrongful death law essentially comes from the archaic concept that it is too difficult and problematic for the legal system to be putting a monetary value on human life, so only what the law calls 'pecuniary' or monetary losses can be recovered by the family of someone wrongfully killed. How this plays out is that a spouse can be compensated for the amount income s/he expected to continue receiving from his/her wrongfully killed spouse or for the value of services his/her spouse provided, which can be valued by looking at how much it costs to replace those services, such as hiring someone to provide cleaning, childcare, etc., services. But parents can only recover amounts that they can show their young child would have earned and then contributed to the parent, or the value of services the child would have provided to the parent.