When a loved one dies, it is always a painful experience. When your loved one’s death happens because of the actions of another person, whether negligent or intentional, it even more stressful. When this occurs, the survivors have the right to bring a lawsuit, or wrongful death action to recover damages, or economic compensation for the many unexpected costs that arise from a loved one’s death. You need wrongful death attorneys to advise you.
When to Contact a Lawyer to File a Wrongful Death Lawsuit
Heirs of the deceased loved one should contact a wrongful death attorney to file a wrongful death lawsuit when the decedent died as a result of the wrongful actions or inaction of another party.
There are two ways that a wrongful death can come about:
- through intention, or
- as a result of negligence.
Wrongful Death Due to Deliberate Action or Assault
Intentional wrongful death cases occur when someone has deliberately killed your loved one, or caused their death through a deliberate assault. Such an act might be considered murder or manslaughter in the criminal justice system; however, a wrongful death suit is filed in the civil justice system, separately from any criminal charges or trials 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, even if the responsible party was found not guilty at their criminal trial. Because civil cases have a lower burden of proof than criminal cases, it is 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.)
Wrongful Death Due to Negligence
Not all wrongful death cases involve intentional acts; some involve deaths that occurred through the negligence of another person (or non-human entity such as a corporation).
Negligence occurs when someone 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 caused 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.
Who Can File a Wrongful Death Lawsuit
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.
Wrongful death lawsuits are filed on behalf of immediate family members of the decedent, including their spouse and children. However, the eligible parties may vary from state to state. In some states, 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).
Immediate family members or dependents stand a good chance of recovering damages, but wrongful death attorneys can check the statutes for their state before filing a wrongful death lawsuit.
Damages Recoverable in a Wrongful Death Lawsuit
Damages in a wrongful death lawsuit are both pecuniary, or economic, and non-economic.
Economic damages include the direct costs that were imposed 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 lucrative career in his or her future, and you would have inherited the money earned by the decedent, you may seek recovery for this.
Non-economic 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, wrongful death attorneys may be able to recover them for you.
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 (typically around two years).
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 Cases: Difficult but Worthwhile
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, contact the experienced wrongful death attorneys at TorkLaw. We will work with you to obtain the monetary compensation you need and deserve.