When someone dies as a result of the actions of another person, whether negligent or intentional, the survivors have the right to bring a lawsuit to recover monetary compensation for the damages arising from the death of their loved one. This is known as a wrongful death action.
A wrongful death lawsuit can be filed if the decedent (deceased loved one) died as a result of the wrongful actions or inactions of another party.
There are two ways that a wrongful death can come about: through intention or through negligence.
Intentional wrongful death cases occur when someone has deliberately killed your loved one, or caused their death through a deliberate assault. If this occurs, then you may file a wrongful death lawsuit against the perpetrator.
Intentional wrongful death cases typically involve an act which would be considered murder or manslaughter in the criminal justice system. However, a wrongful death suit is filed in the civil justice system. This occurs separately from the criminal charges that may arise from the same act.
In fact, even if a criminal trial has already taken place, you can still file a civil lawsuit for wrongful death. You can still do so even if the responsible party was found not guilty at their criminal trial.
Because civil cases have a lower burden of proof then criminal cases, it is actually more common than you might think for a defendant to be found not guilty in a criminal trial, but be found liable in a civil trial for the same act. (The most famous example of this was O.J. Simpson, although there have been others.)
Not all wrongful death cases involve intentional acts; some involve deaths that occurred through the negligence of another person (or non-human party such as a corporation).
Negligence occurs when an individual fails to exercise the care towards others that a reasonable person would exercise under the same circumstances. In a wrongful death negligence case, this involves an act, or failure to act, that leads to another person’s death.
One of the most common types of wrongful death negligence cases involves car accidents. If a driver on the road brought about the death of your loved one through their negligence behind the wheel, then you may sue the driver (or their insurance company) for damages.
Other common wrongful death cases arising from negligence include medical malpractice, mass transit accidents, heavy machinery accidents, elder neglect or abuse, dangerous premises, defective consumer products, and defective pharmaceutical drugs, among others.
There are other types of wrongful death cases, too. If someone you love was killed through the negligence of another, then talk to a lawyer, no matter how the death occurred! Don’t assume you don’t have a case.
A wrongful death lawsuit must be filed by the personal representative of the decedent’s estate. Typically, the personal representative is an heir and immediate relative. The personal representative will be decided by consensus of the heirs, or, if there is a dispute, in probate court.
The wrongful death lawsuit must usually be filed on behalf of immediate family members of the decedent, including their spouse and children. However, the precise parties which are eligible to recover damages vary from state to state.
In some states, the wrongful death statute is very narrow, and only the spouse, parents, or children can recover damages in a lawsuit.
In others, damages may be recovered by grandparents or grandchildren, siblings, dependent minors not related to the decedent, domestic partners, or a putative spouse (one who believed in good faith that they were married to the decedent but whose marriage was legally invalid).
You should check with the statutes for your state before filing a wrongful death lawsuit. However, if you were an immediate family member or dependent, then you stand a good chance of recovering damages.
The damages which may be recovered in a wrongful death lawsuit are typically pecuniary, or economic.
Pecuniary damages include the direct costs that were imposed upon you by the wrongful death, including funeral expenses, lost prospect of inheritance, lost wages and financial support, lost household service, and so forth.
For instance, if your loved one had a long career ahead of them, and you would have stood to inherit this money, then you may seek recovery for this pecuniary damage in a wrongful death lawsuit.
You may also seek compensation for noneconomic damages. Noneconomic damages are not easily quantified, but are nonetheless very real to the people involved. They include factors such as loss of society, love, companionship, consortium, guidance, or nurture.
The precise nature of these damages will vary depending on your relationship with the decedent. For instance, if you were a spouse of the decedent, you are more likely to receive damages for loss of consortium, whereas if you were a child, you are more likely to receive damages for loss of guidance or nurture.
The amount will also vary depending on the strength of your relationship with the decedent, which you may need to prove in court.
There are a few types of damages you may not be able to recover in a wrongful death lawsuit. For instance, you will typically not be allowed to recover damages for your grief or sorrow at the loss, no matter how real your pain may be.
Punitive damages, which are awarded for no other reason than to punish the defendant, are a more complex matter. In some jurisdictions, they are banned in wrongful death cases, but in others they may be recoverable.
Wrongful death damages also gather interest as time passes from the date of the death. However, you shouldn’t wait to file a wrongful death lawsuit because of this, because your case may be subject to a statute of limitations which limits your ability to file after a certain period of time (typically around two years).
A survival action is similar to a wrongful death lawsuit, but there are some crucial differences.
A survival action is intended to recover damages that were suffered by the decedent in the period between their injury and death. This differs from a wrongful death lawsuit, which aims to collect damages incurred by the survivors and not the decedent themselves.
For instance, the decedent may have experienced a certain degree of pain and suffering in the period before their death, or may have lost wages during this time. The damages in a survival action, of course, will vary significantly depending on how much, and in what ways, the decedent suffered before dying.
Like a wrongful death lawsuit, a survival action is filed by the representative of the decedent’s estate. However, it is filed on behalf of the decedent rather than the survivors, and the damages will go directly to the decedent’s estate rather than to the survivors.
Although survival actions are separate from wrongful death lawsuits, the two may be consolidated under some circumstances.
Wrongful death claims and survival actions, by their very nature, are difficult to handle. For clients, they are some of the most emotionally fraught of all personal injury cases, and they can take a toll on the lawyers involved, too.
That is why you should only file such a lawsuit with an attorney you truly trust, and who you are 100% certain has your best interest at heart.
No amount of money can ever bring back a loved one, or assuage your grief. However, a wrongful death award can make a tangible difference in the quality of life enjoyed by the loved ones of a person who died too early. This may save you from financial ruin during your time of grief.
And while the loss of a loved one for emotional support is always incalculable, wrongful death awards provide many clients with a strong sense that some sort of justice has been achieved.
If a loved one has been killed due to the carelessness of another person, then we at Torklaw recommend that you contact an experienced personal injury lawyer immediately so he or she can start working right away to obtain all the monetary compensation you are entitled to.