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Wrongful Death

You can suffer a personal injury because of another's intentional or negligent behavior. You can also die because of that behavior.

While the injured party can't file a wrongful death lawsuit, their surviving family members can sue for wrongful death. A surviving spouse, child, or personal representative can file a suit on behalf of the deceased person, also called the decedent. A successful wrongful death suit can't bring the victim back, but it helps the victim's loved ones receive financial compensation for their loss.

Wrongful death damages are tort damages and may include medical bills and funeral expenses. They may also include the loss of support and the loss of consortium.

FindLaw's Wrongful Death section provides information about wrongful death. It also includes the process for filing a wrongful death suit. In this section, you can find articles explaining:

  • Patient-doctor privileges
  • The discovery rule
  • Wrongful death cases involving children and older adults

Wrongful Death: The Basics

A wrongful death claim can arise from medical malpractice, car accidents, or criminal behavior. They can arise out of various fatal events and anything that could trigger a personal injury claim. Some examples of ordinary circumstances are premises liability claims, such as a slip-and-fall. It could also be a product liability case.

A state's wrongful death statute lays out who can bring a cause of action. Some states, like New York, allow only the personal representative of the decedent's estate to file the suit. Other states allow other beneficiaries, such as surviving family members. State law also varies regarding whether you can bring a survival action, which is the action that the decedent would have brought if they hadn't died.

As the name suggests, a "wrongful act" is at the center of the suit. The wrongdoer may be subject to criminal charges. A jury can find a person "not guilty" of their crime, but they may still be liable in a wrongful death suit. The standard of proof differs for a criminal case versus a civil lawsuit. In a criminal case, the prosecutor must prove their case beyond a reasonable doubt. But in a civil case, the "preponderance of the evidence" standard determines liability.

To bring a successful wrongful death case, the plaintiff must prove the following elements:

  • The death of a person
  • The defendant owed the decedent a duty of care
  • The defendant's intent to harm or negligence was the cause of the person's death
  • The surviving family members are suffering monetary injury/loss as a result of the death

The primary measure of damages in a wrongful death case is financial or monetary loss or injury. There are two main types of damages that a plaintiff can recover.

  • Economic damages
  • Non-economic damages

Plaintiffs can recover for damages, such as:

  • Medical bills
  • Loss of support
  • Loss of services
  • Lost prospect of inheritance
  • Burial expenses, cremation, and funeral expenses

Non-economic damages may include:

  • Loss of companionship
  • Loss of consortium
  • Emotional distress

A judge or jury considers the decedent's age, health, life expectancy, intelligence, earning capacity, and character and condition. The circumstances of the people receiving the award's money are usually also relevant. The court may award punitive damages if they want to punish the defendants or teach them a lesson.

Children, Older Adults, and Wrongful Death

Generally speaking, courts measure the value of the victim's life in a wrongful death action by many factors, including the victim's earning potential. This price-setting procedure can be complex regarding the death of a child or an older adult. For this reason, courts follow certain guiding principles when assessing the lost financial value of a child or older adult's passing.

Wrongful Death: Children

When a child dies, the parent can recover their financial loss. The court considers several characteristics of the claimants including:

  • Their relationship with the child
  • Their age
  • Their health
  • Their economic and overall circumstances

The child's sex, age, health, life expectancy, earning potential, and habits are other determining factors. While many of these assessments are speculative, the younger the child was, the more speculative the assessment. However, juries are not supposed to guess what the child would have contributed to the parents' support. Juries typically work with a work-life expectancy table as a starting point for calculations to avoid basing an award purely on guesses.

Wrongful Death: Older Adults

The death of an older adult also has limited recovery potential. There are a few reasons why the award in a wrongful death case for an older adult is small. First, once a person is past retirement age, it's assumed they don't have significant earning potential. Secondly, the children of older adults are typically adults who no longer need substantial support or guidance from their parents. These factors usually result in modest awards in wrongful death cases involving older adults.

Statute of Limitations

The statute of limitations for a wrongful death lawsuit depends on state law. Like most personal injury lawsuits, the statute of limitations is typically two or three years from the date of the decedent's death. Check with a local wrongful death lawyer for more information.

Hiring a Personal Injury Lawyer

Suppose you believe someone you love has died due to another party's intentional or negligent acts. In that case, you may want to contact a local injury attorney, specifically a wrongful death attorney, to determine your legal options and whether to bring legal action. They can also help you get a wrongful death settlement from the insurance company.

It's in your best interest to contact an experienced attorney as soon as you can after the death of your loved one. You must meet your state's time limits if you want to file a wrongful death lawsuit.

Learn About Wrongful Death

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

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