In 2018, there were more than 160,000 unintentional injury deaths.
The death of a loved one is always tragic but it’s particularly difficult when their death was the result of a preventable accident or occurrence.
If someone you love has been killed due to someone else’s negligence or misconduct, you might be curious about how a wrongful death lawsuit works.
Let’s take a look at everything you need to know about wrongful death claims.
What Is a Wrongful Death Claim?
A wrongful death occurs when an individual is killed due to another person or entity’s misconduct or negligence. While there might be a criminal prosecution that is related to the individual’s death, a wrongful death lawsuit is entirely distinct from any criminal charges. Instead, this is a civil case.
There are many different circumstances that could result in a wrongful death lawsuit, including motor vehicle accidents, medical malpractice, manufacturing defects, or criminal activity.
The laws regarding bringing a wrongful death claim against another person or entity differ between states.
Who Can Bring Wrongful Death Claims?
Who is able to bring a wrongful death claim is determined by the state. In most states, the case is required to be filed by a personal representative of the deceased person’s estate that is appointed by the court. This individual typically will bring the case for the benefit of the surviving children and spouse of the deceased.
It is common for courts to appoint one of the beneficiaries of the wrongful death claim as a personal representative.
In general, the immediate family of the deceased person can typically file a wrongful death claim against the individual or party who is responsible.
The court-appointed personal representative typically files the claim on behalf of the “real parties in interest.” Some of the parties might include:
- Immediate family members: in all states, immediate family members such as children, adopted children, spouses, and parents of unmarried children are able to recover damages through wrongful death cases
- All persons who suffer financially: In some states is allowed for any people who financially suffered from the wrongful death to bring a wrongful death claim even if they aren’t related by marriage or blood to the deceased
- Financial dependence, life partners, and putative spouses: In some states, there is a right of recovery given to life or domestic partners, a person possessing a good faith belief that they were married to the victim (known as a putative spouse), or anyone who was financially dependent on the deceased
- Parents of the deceased fetus: In some states, a wrongful death suit can be filed as a result of the wrongful death of a fetus
- Distant family members: In some states, it is allowed for more distant family members, such as grandparents, brothers, and sisters to file wrongful death claims
It’s important to look into your specific state law to understand who is able to file a wrongful death claim.
Who Can Be Sued For a Wrongful Death Claim?
There are a wide variety of individuals, employees, government agencies, and companies that can be sued for wrongful death. It was considered a fault will have to do with the specifics of the circumstance as well as the laws in your state.
Certain agencies or persons might be immune from such a lawsuit in certain cases. What this means is that it is not possible to sue individuals or entities for wrongful death. The rules in this regard will also vary from state to state.
Wrongful Death Lawsuits: What Damages Are Recoverable?
Again, the answer to this question will depend on the laws in the appropriate state.
Some examples of damages that survivors might be able to receive as compensation include:
- Medical treatment costs incurred by the deceased victim prior to death as a result of the injury
- The pain and suffering experienced by the deceased person before death
- Funeral and burial costs
- Loss of inheritance due to the death
- Lost of the expected income of the deceased person
- Loss of guidance, nurturing, and care that would have been provided by the deceased
- Value of the services that would have been provided by the deceased
- Loss of companionship and love
- Loss of consortium
All states do allow for the recovery of some economic losses as a result of a wrongful death claim.
Nearly all states allow the payment of damages for the loss of financial support from the deceased individual as well as to cover burial and funeral expenses. In some states, it is allowed to require damages for the loss of a prospective inheritance. In some other states, wrongful death claims are allowed to result in the recovery of the deceased individuals total lifetime earning capacity.
Only a few states do not allow damages for pain and suffering that the deceased experience due to the negligence of another party.
Additionally, many states allow damages to be paid to the next of kin or surviving spouse such as companionship and loss of society damages.
Is There a Time Limit For Bringing a Wrongful Death Lawsuit?
There is in fact a time limit for how long after an incident a wrongful death lawsuit can be brought. If a lawsuit is not filed by the proper party within the time that the law allows, any rights to recover monetary damages no longer apply.
It can be complicated to properly calculate just how much time an individual has in order to bring a lawsuit forward. For this purpose, among others, it is best to have an experienced wrongful death lawyer early on in the process.
Do You Have to Go to Court If Your File a Wrongful Death Lawsuit?
Many wrongful death lawsuit are settled before ever getting to trial. However, there is always a chance that the lawsuit will have to proceed to court. It is therefore important that any individual who makes a wrongful death claim be prepared to do so.
Any kind of trial can be costly and long. For this reason, it is important to find an attorney that has experience representing people in wrongful death lawsuit. They will have the skills necessary to properly and fully litigate your claim while simultaneously working to recover damages in a reasonable amount of time.
You want to find a qualified lawyer who has a track record of success in court. This is true even if there is a high likelihood that your case will be settled out of court.
No one knows until the conclusion of the case whether or not it will be tried in court. It is therefore important to find a skilled and qualified wrongful death lawyer who can protect your right to recovery and represent your interests if it becomes necessary that the case go to court.
What Must Be Proven in a Wrongful Death Claim?
The plaintiffs in the claim would have to meet the same burden of proof that the victim would have had to meet had they lived and filed a personal injury lawsuit in order to hold the defendant liable.
What this means specifically will depend on the circumstances of your case. For example, if the claim is that the death was a result of the negligence of another party, it would have to be proven that the defendant breached the owed duty of care and that this breach was a direct and proximate cause of the death. It would also have to be proven that the death was the cause of the damages that are trying to be recovered.
Choosing a Wrongful Death Lawyer
Finding the right wrongful death lawyer is absolutely essential if you’re going to be involved in a wrongful death claim.
One of the first thing that you can do is ask your family and friends for recommendation. This can be a good place to start.
You’ll want to thoroughly research any lawyer that you’re considering hiring. You can ask for a free consultation with several of the lawyers in your area in order to get a sense of what your options are.
It’s important to ask a number of questions regarding the lawyer’s experience, track record, similar cases handled, years practicing in the area, and members of any professional organizations or bar associations.
Ivey Law Firm, P.C.: Assisting Families Following a Loved One’s Wrongful Death
At Ivey Law Firm, P.C., we understand how devastating it can be to lose a loved one suddenly and tragically. We are here to provide knowledgeable and compassionate legal counsel and representation to the families of negligence and accident victims.
Are you looking for a wrongful death attorney to represent you in your case? Contact us today to schedule a meeting with an attorney.