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Wrongful death is a claim against a person who can be held responsible for a death. Wrongful death laws vary by state, so it’s important to consult an experienced personal injury attorney.
A wrongful death claim is a personal injury lawsuit that can be brought on when a person is killed due to another party’s negligence or intentional act. A wrongful death lawsuit may be appropriate if someone has died due to the deliberate behavior of someone else. Victims of the wrongful death claim can receive compensation for both the financial loss of the deceased and the emotional loss of the loved one.
When someone is injured through the negligent or intentional acts of another, that person has the right to seek monetary compensation or damages. What happens when the incident results in that individual's death? Long ago, the liable party faced jail time but didn't have to worry about paying damages. While the deceased individual couldn't claim damages, his or her family was left suffering a financial burden as well as the emotional loss. Some more immoral people used this to their advantage. They realized that, while murder would result in more incarceration, it would save them from having to pay out on a personal injury claim. This situation prompted lawmakers to address the flaw in our system.
Today, our laws provide a method of seeking damages in such a case by filing a wrongful death claim - a particular personal injury lawsuit in which the victim's representative died on his or her behalf. Any damages awarded in the wrongful death claim would be distributed to beneficiaries per the decedent's will. In this way, the family receives compensation for their loss to help them cope with the financial costs caused by the wrongful death.
While this sounds simple, a wrongful death claim can become very complicated. First, only certain people can serve as a personal representative and, sometimes, the deceased party doesn't have a will. There are also specific factors that make up a wrongful death claim and failing to meet even one element can compromise your case. While you may never have to file a wrongful death claim, it's important to understand how the process works and how these obstacles can be overcome. This overview can prepare you if you do lose a loved one through the fault of another.
As previously mentioned, the personal representative is often designated in the deceased party's will. While this person is chosen to represent the decedent, he or she also represents that person's family members. The family is said to be represented because they will be the ones to receive the settlement or award. Allowing the entire family to file the wrongful death lawsuit can complicate the situation, so just one individual is chosen to act on the family's behalf.
What happens if there is no will? In this case, members of the family will petition the court to allow them to act as the personal representative. This option isn't open to everyone in the family, and each state has its laws to determine which people can serve as the representative. Typically, the representative can be any of the following individuals:
Some states have added to this list, allowing other family members to file a wrongful death lawsuit. Grandparents, adult siblings, and some other family members may qualify. As relationships change, the laws also vary, so it's essential to consult a wrongful death attorney about the laws in your area to determine if an unmarried partner can also qualify. Some states allow this, while others do not.
The parents of a deceased fetus may also be permitted to file a wrongful death claim.
For most states, the general rule of thumb is that anyone who has been caused a financial burden by the loss may file a claim. One example might be an elderly aunt needing adult care that the now-deceased individual paid to provide.
There are four fundamental elements that your wrongful death attorney must be able to establish for your case to move forward. Typically, the attorney will go over the facts of the case with you at your initial consultation to determine if these elements can be met. If even one condition can't be proven in court, you may have to drop your claim.
1. Breach of Duty
Your lawyer must be able to show that the defendant owed a duty of care to the decedent and that he breached that duty. Meaning the defendant was responsible for taking reasonable steps to ensure the safety of the deceased individual and that he failed to meet that obligation. In a car accident, running a stop sign would be considered a breach of duty, because that driver was reasonably expected to obey that traffic law.
An individual can be negligent either through inaction or through deliberate or reckless acts. When someone fails to mark off or repair an unsafe area, this is negligence through inaction. Alternatively, deliberately pushing someone, causing the person to fall over the side of a cliff, is negligence by a deliberate act. Even if he never intended for the decedent to fall over the edge of the cliff, his negligence was the root cause of the death.
Your attorney must also show that the defendant's actions caused the death. While this may sound redundant, negligence doesn't always cause death. For instance, one driver crashed into another driver as a result of running a red light. The second driver is injured but alive. If he later dies of a heart attack, which was not caused by the injuries, the first driver did not cause death.
It must also be shown that financial damages were suffered as a result of death. If your lawyer can prove the first three elements, showing a financial loss often follows naturally. At the very least, there were the medical care costs of treating the individual before his death and the funeral and burial expenses of the decedent. Your attorney will try to show that you have suffered additional damages to ensure you receive a fair settlement.
Many types of damages can be claimed when filing a wrongful death lawsuit, although not every type can be claimed in every case. Your attorney will discuss the types of damages you can claim after he or she examines the facts of your case. Here is a list of the damages most commonly claimed in the filing wrongful death lawsuit:
While it can be hard to put a number on some of these damages, the court uses a system that attempts to estimate the value of these losses. They often take into account the decedent's age and physical condition at the time of the accident. The individual's life expectancy will be considered as well. Other factors, such as the value of lost benefits, will also be considered.
Filing wrongful death lawsuit is also regulated by a time limit, known as a statute of limitations. Both traditional personal injury lawsuits and wrongful death claims must be filed within one to two years of the discovery of the harm. Each state has a different statute of limitations, with the longest being two years. It's important to note that the time limit doesn't begin counting down until the harm has been discovered. If you don't become aware of the individual's death until one year after his passing, you have two years from discovering the loss, not from the actual date of the dying.
Some government agencies and businesses are immune from wrongful death claims. For instance, railroads are exempt from wrongful death claims in collisions and some product liability issues may not be claimed, either. In Mutual Pharmaceutical Co., Inc. v. Bartlett, it was determined that a generic drug brand couldn't be held liable for wrongful death if the brand name if the same drug was deemed safe for use by the FDA. While these situations are rare, they do exist. Consulting your attorney will help you determine if the responsible party in your wrongful death claim is exempt.
While there is a great deal of information to consider in filing a wrongful death suit, consulting a lawyer can help you make sense of everything. Since wrongful death lawyers offer free initial consultations, you can learn more about your case without any financial risk. Ensuring the families of those killed through negligence can get the compensation they need to recover from the economic losses caused by death.