What conditions have to be present for a wrongful death lawsuit?
A wrongful death claim is made when a death is caused by the negligence, wrongful act or neglect of an individual or organization. It can arise out of auto, motorcycle, truck, airplane, ATV, recreational vehicle, four-wheeler and helicopter accidents; criminal attacks; faulty product design; improperly supervised activity; unsafe or unsecure premises; nursing home neglect; or workplace exposure to hazardous conditions or substances.
Who may file a wrongful death claim?
Generally speaking, a surviving spouse, child or parent can sue for the wrongful death of a loved one. Each state has established specific rules on who may file a claim. It is also possible for several parties to join in the lawsuit.
How soon after the death does the claim have to be filed?
Typically, the statute of limitations in the state where the death occurred establishes the final date on which the case must be filed. A Statute of Limitations is a time period, created by law, within which a claimant must file a lawsuit in court or provide governmental entities with appropriate notices and claims or forever lose their right to recovery from the wrong done to them. However, the statute of limitations and notice and filing requirements are different in certain specific situations. For example, the time allowed is dramatically shorter if governmental agencies are being sued. We do urge you, therefore, not to wait to call an experienced attorney because if you miss the deadline of your state’s statute of limitations, you will never be able to sue to recover your losses.
How important is it to talk to an attorney?
Because the laws governing wrongful death are complicated and confusing, it is extremely important to work with a law firm that understands not only the basic law, but also the many avenues of potential recovery possible in your case. At a time of heartbreak and uncertainty, it can be a relief to talk to someone who knows the law and understands how you have been affected by this loss.
What does a wrongful death lawsuit involve?
A wrongful death lawsuit alleges that the deceased was killed as a result of negligence, neglect or wrongful action of the defendant and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant’s conduct. When a party sues for wrongful death, they seek to prove the defendant caused the wrongful death and ask for compensation for their losses.
What kind of damages may a relative sue for in a wrongful death case?
In most states, there are three types of damages available to survivors in a wrongful death lawsuit. There are the economic damages which are based on the case your attorney makes for the financial losses and loss of services suffered because of the death of this individual. These include funeral and medical expenses, loss of future income, benefits and services had the person lived. There are also non-economic losses that include the loss of love, companionship, affection and nurturing. A third type of compensation—punitive damages— are sometimes awarded to the survivors in cases where the court or jury wants to further punish the defendant and send a message to others that this should never happen again. For example, if the defendant requently and recklessly drove while drunk, punitive damages might be awarded to deter him and others from the same type of conduct in the future.
Can a family sue for the pain and suffering of the deceased person?
In a separate cause of action, relatives can sue—as representatives of the deceased—for the pain and anguish suffered between the time of injury and the time of death. That pain and suffering, whether it be brief or prolonged, is entitled to compensation from the wrongdoer. This is referred to in many states as a survivor action. Even when it seems that death was instantaneous, courts recognize that there may be considerable physical and psychological suffering in those last moments, including the contemplation that you are about to die.
How do judges and juries determine the value of economic loss?
Economic loss is based on the facts brought forward to determine what burial, funeral and medical expenses resulted from the death and what the deceased would have earned or accumulated had he/she lived a normal life span. This is often a very complex calculation. The courts take into consideration the age of the deceased, the condition of the deceased’s health prior to the accident, his/her earning capacity and prospects for earning at the time of death. They will try to determine what kind of assistance and services he/she would have rendered to the family, the age and needs of the children and many other factors including the wealth he/she might have accumulated during a normal life span. It is important for the survivors’ lawyer to make the case—often with the help of expert witnesses—on verifiable economic losses to the family.
How do judges and juries determine the value of a non-economic loss?
The personal losses suffered after a wrongful death incident are incalculable, yet courts and juries seek to determine a sum that would compensate the family for their tragic losses. It requires legal skill and effort to help the court and jury understand the desolation that follows a wrongful death. There are many variables in how these damages are determined, and it is important that your attorney make a solid case for the all the non-economic losses suffered—your loss of companionship, nurturing, love and affection, in addition to the emotional stress, pain and suffering, mental stress and inconvenience experienced. The attorney then must convert your most serious personal and emotional loss into a request for a dollar amount because the court cannot do anything in wrongful death lawsuits but award money as compensation for loss. No amount of money can replace a loved one—but the law holds that survivors who suffer heartbreak and emotional pain are entitled to seek redress for their losses. After hearing your side of the case, and the opposing party’s side, the judge or jury will award the amount they believe appropriate for your loss based on the facts presented.
Could I file a wrongful death lawsuit without an attorney?
A relative can file their own wrongful death lawsuit, however this is not advisable because the law is so complex and the standards of proof are so exacting. Remember you are often in court up against an insurance company with paid staff and years of experience fending off claims and seeking
to diminish the amount paid to the aggrieved parties. Often expert witnesses are needed to establish how much an individual would have contributed to
the family if he/she had lived and to help explain the emotional pain the family is suffering. Law firms with experience in wrongful death lawsuits understand the complexities and the importance of demonstrating the economic loss. They have the experience of working with expert witnesses
to help prove the case against insurance company testimony that will try to minimize the amount recovered.
Are there different considerations in cases involving the death of a child?
The death of a child is one of the most tragic events anyone can experience. While it is a most personal and private grief, the law recognizes that the parents’ loss—when caused by someone’s wrongful deed—may be entitled to compensation. In the case of a child’s death, your attorney will draw on all the means available to show the court what this death means to the family in terms of loss of companionship, love and affection. The non-economic losses many times outweigh any economic loss that can be demonstrated. The results in a case like this depend on the skill of the attorney to convincingly present the case for the family’s loss and the experts brought in to support the case.
How can you know your lawyer will find all the potential sources of recovery?
Your attorney’s experience and skill—and the law firm’s support—are vital to the outcome of a wrongful death case. Look for a firm that takes a team approach so that experienced attorneys, in concert with researchers and paralegals, work together to find all potential sources of recovery. It is one thing to be effective in court, but it is also important to ferret out all possible sources of recovery. In addition to experience, your law firm also should have the financial resources to make the case against well-funded insurance companies that will fight fiercely to minimize their payout. Ask the lawyer about his/her firm’s experience in handling cases like yours—the number of years of experience in the field, about cases won and how they will use expert witnesses to develop meaningful ways to tell the story of your loss. See the list of questions (page 15 and 16) you should ask an attorney and law firm to determine if they have the experience and resources to represent you in this matter.
What is the difference between the civil and criminal cases that can be brought regarding the death?
Even if the party at fault could not be convicted in criminal court, the standards for proof are different in civil court—where wrongful death actions are filed. A good example is the O.J. Simpson case where on October 3, 1995, Simpson was exonerated in a criminal trial charging him with the murder of his ex-wife and her friend. He was later sued by the victims’ families in civil court where on February 4, 1997, the court awarded the families of Nicole Brown Simpson and Ron Goldman $33.5 million.
Can I bring a wrongful death action if the deceased never held a job—for example a stay-at-home mother?
Yes. The “value” of the deceased in terms of damages in a wrongful death case is determined using economic and non-economic measures. When a caregiver dies, the family suffers a loss of service, which can be quantified in economic terms because they now may have to pay to replace those services.
There is also the great non-economic loss of the love, nurturing, affection and companionship. The same considerations can apply to other individuals who were not employed at the time of their untimely death.
How long does it take to settle a wrongful death case?
It is not easy to predict how long it will take because many factors come into play. See our chart on “The Stages of a Law Case”. We can say,
however, that our firm considers wrongful death lawsuits our number-one priority and pushes them along as promptly as humanly possible so that you
are able to recover your losses and move ahead with your life. However, even with our best efforts, litigation can last a year or more.
What if my family and I just cannot deal with a lawsuit right now?
Sadness and heartbreak may prevent you from dealing with this right now. We know, from experience with other clients in similar situations, that talking to an attorney may help you relieve some of the burden and help your family seek to recover from the financial loss suffered as the result of losing a loved one. When you are ready, we urge you to schedule an initial visit with our attorneys and talk about your situation. You may decide to wait a while until things settle down, or you might want to turn this part of the burden over to our caring, competent attorneys immediately.
