Wrongful Death Overview

When a person dies or is killed due to someone else's negligence or misconduct, the surviving members of the victim's family may sue for wrongful death.

Many wrongful death lawsuits come after criminal trials. Wrongful death actions are civil lawsuits and are a type of personal injury claim. They use similar evidence to criminal cases but have a lower standard of proof.

Criminal Charges and Wrongful Death

Someone found liable for wrongful death may or may not be convicted of criminal charges arising from the same death.

For example, former football star and actor O.J. Simpson was found not guilty of murder in 1994. The prosecution could not establish guilt beyond a reasonable doubt.

Still, O.J. was found liable for the wrongful death of the two victims in his civil trial. The plaintiffs were able to prove O.J.'s responsibility for the deaths by a preponderance of the evidence.

Who Can Bring Wrongful Death Suits?

In most states, only the personal representative of a decedent's estate can bring a wrongful death suit. The personal representative might be a surviving family member, a surviving spouse, or someone else entirely.

Every state has a civil wrongful death statute, or set of statutes, establishing the procedures for wrongful death actions.

A personal representative also brings any claims for:

• Personal injury
• Conscious pain and suffering
• Expenses incurred before the decedent's death, including medical bills

The damages awarded in these actions belong to the estate. They may pass to different beneficiaries as directed by the deceased person's will.

Elements of a Wrongful Death Lawsuit

To bring a successful wrongful death cause of action, the following elements must be present:

• Duty: there is a duty to use reasonable care towards a foreseeable plaintiff
• Breach of Duty: another person's act or omission to act caused the breach
• Causation: the death must be a direct and foreseeable result of the breach of duty
• Damages: the plaintiff must show measurable damages that resulted from the death; these are specifically defined by statute in a wrongful death case

A wrongful death claim may arise out of many circumstances, such as:

• Medical malpractice that results in death
• Automobile or airplane accident
• Occupational exposure to hazardous conditions or substances
• Toxic torts
• Product liability
• Criminal behavior
• Death during a supervised activity

You must file a wrongful death claim within the statute of limitations. The statute of limitations varies from state to state. Sometimes you can file a late claim if the cause of action wasn't discovered until later.

Damages in a Wrongful Death Lawsuit

Pecuniary, or financial, injury is the primary measure of damages in a wrongful death action. Courts have interpreted pecuniary injuries as including:

• Loss of support
• Lost services
• Lost prospect of inheritance
• Medical and funeral expenses

Most laws provide that the damages awarded for wrongful death shall be fair and just compensation for the financial injuries resulting from the decedent's death. Types of damages that can be recovered include burial expenses and expenses incurred from treatment by medical professionals. A damages award will also include interest from the date of the decedent's death.

Determining Pecuniary Loss

When determining pecuniary or economic damages, it's important to consider:

• The age, character, and condition of the decedent
• The decedent's earning capacity, life expectancy, health, and intelligence
• The circumstances of the distributees

Usually, the primary consideration in awarding damages is the decedent's circumstances at the time of death.

For example, when an adult wage earner with dependents dies, the major parts of the recovery are:

• Loss of income
• Loss of parental guidance

The jury may also consider:

• The decedent's earnings at the time of death
• The last known earnings if the decedent was unemployed before death
• Potential future earnings

Adjustments in the Jury's Award

In a wrongful death action, the jury determines the size of the damages awarded after hearing the evidence.

The jury's determination is not the final word. The size of the award may be adjusted upward or downward by the court for various reasons.

For example, if the decedent routinely squandered their income, this might reduce the family's recovery. Similarly, the courts will reduce a jury's award if the decedent had poor earnings.

In contrast, a jury may award lost earnings despite a decedent having been unemployed. This might happen if the decedent worked in the past and the plaintiff presents evidence of the decedent's average earnings while employed.

Using Expert Testimony To Determine Pecuniary Loss

Plaintiffs can present expert testimony to establish the value of the decedent to their family.

Expert testimony can aid jurors in understanding matters outside common knowledge.

Punitive Damages

Punitive damages are awarded in cases of serious or malicious wrongdoing to:

• Punish the wrongdoer
• Deter others from behaving similarly

In most states, a plaintiff may not recover punitive damages in a wrongful death action. Some states, such as California, have specific statutes permitting the recovery of punitive damages.

In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have found them permissible. An attorney can advise you as to whether your state allows punitive damages.

Survival Actions for Personal Injury

In addition to damages for wrongful death, you can recover damages in some states for personal injury to a decedent. This type of case is called a survival action because the personal injury action survives the person who suffered the injury.

The decedent's personal representative can bring this action together with the wrongful death action.

In a survival action for a decedent's conscious pain and suffering, the jury may make inquiries to determine the amount of damages.

Their inquiries may include:

• The degree of consciousness
• The severity of the pain
• The apprehension of impending death
• The duration of the suffering

Related Resources

• Wrongful Death Cases: Children and Older Adults
• Wrongful Death Resources

Have Questions After Reading This Wrongful Death Overview? Talk to an Attorney

Has a loved one died after a car accident or other injury caused by someone else's negligence or misconduct? If so, you may be able to bring a wrongful death claim. Contact an experienced personal injury attorney to discuss your legal rights and potential case.

A personal injury lawyer or wrongful death attorney will be familiar with your state's laws and can help you take legal action. Personal injury cases can be complex and might even involve insurance companies.

An experienced attorney can help you obtain financial compensation, such as a wrongful death settlement, for a person's death.