There are few things more devastating than the loss of a loved one. No matter the circumstances, it's painful for everyone involved. While most deaths are the result of natural causes, there are situations when you could lose a loved one because of another person or entity's negligence.
If you think that someone either negligently or intentionally caused the death of your family member, you might be able to file a California wrongful death claim.
The first thing to know is that there's a time limit. The statute of limitations is the amount of time the court allows for you to file a lawsuit. You must file a California wrongful death claim within 2 years of the date of death, or you lose your right to file at all.
It's important to be clear on the differences between a civil claim and a criminal charge.
Only the state, local, or federal government can charge a person with a crime. If a person caused your loved one's death, they could be charged with homicide, manslaughter, criminally negligent homicide, or a variety of other actions as determined by law enforcement.
The penal code, which governs the criminal justice system, establishes what the punishment is for a particular crime. The judge chooses how the penalty or sentence is applied in a particular case. Punishment for a crime could be anything from probation, to a fine, to prison time.
The only remedy in a civil lawsuit is an award of money. If you file a lawsuit, your lawyer will advise as to how much your loss is worth — which includes economic damages like lost wages and medical treatment — and non-economic damages like pain and suffering or emotional distress.
If you believe that your loved one's death is the result of a criminal act, contact your local law enforcement agency.
Generally, in order to be allowed to file a lawsuit, you must be the person who was injured. The exception to this is if the injured person cannot file on their own behalf, which would include a child, someone who's mentally incompetent, or who is incapable of being directly involved in a lawsuit for some other reason.
Since a wrongful death lawsuit, by its nature, involves someone who's deceased, there's a different set of rules for who is allowed to file a claim.
A California wrongful death claim could be filed by the deceased person's:
If there's no surviving spouse, partner or child, a person who is entitled to the deceased person's property by succession (in other words, next of kin) would be eligible to file a claim. This could include parents or siblings.
Parents, stepchildren, and a “putative spouse” (someone who is not legally married but believed in good faith that they were) and the putative spouse's children can also file a lawsuit if they were financially dependent on the deceased person.
There are actually two kinds of wrongful death lawsuits.
In a survival action, the estate may file the claim within 2 years from the date of injury or 6 months after death, whichever is later.
In some cases, the family of the deceased person will appoint a personal representative for the estate, and that person will file a civil lawsuit on behalf of the estate — they're essentially acting on behalf of the deceased person after their death.
A wrongful death claim is a type of personal injury lawsuit.
When you file a personal injury claim, you can recover damages that include:
The same damages are possible in a wrongful death claim. If there are medical treatment costs directly related to the injury that resulted in death, those would be included in damages. Funeral and burial expenses would be added, too.
Often, the parts of the claim relating to household services, anticipated financial support, and loss of consortium are attributed to the surviving family members.
Here's an example:
Certainly, childcare isn't the only expense. Paying a mortgage, food, medical costs, insurance, car payments, and all the other regular expenses that a family incurs would be impossible for a non-employed parent to manage.
Calculating damages could be the most complicated part of the legal process. Your personal injury lawyer will involve accountants, actuaries, and other financial experts to determine not just the costs you've already incurred, but what your cost of living expenses are expected to be for the years ahead. They can take all kinds of factors into consideration, including life expectancy, cost of living increases, inflation, and other things that you might not think about.
In addition to economic damages (actual costs), there are non-economic damages that include pain and suffering, other emotional trauma or upset, and loss of consortium.
Loss of consortium includes losses of love, affection, companionship, comfort, society, and sexual relations. A loss of consortium claim is usually filed by a spouse, but it can also be filed by a committed partner—or even by someone who's lost a parent or child.
You can't put a monetary value on the loss of a loved one. To prove emotional distress, you'll need to demonstrate how the loss has affected you — it could be anxiety, trouble sleeping, depression, post-traumatic stress disorder (PTSD), other health effects, and so on.
You can also make a claim for the pain and suffering your loved one endured between the time of the injury and the time of death.
For instance, if they were in a car accident and remained alive, but injured, in a hospital or elsewhere for weeks before they died as a result of their injuries, you can make a claim based on their suffering during that period of time.
Punitive damages can be claimed in addition to other damages in a personal injury lawsuit. Punitive damages are intended to punish a defendant whose behavior was especially malicious, fraudulent, intentional, or reckless. California also refers to them as “exemplary” damages.
A jury may award punitive damages in California if the plaintiff proves by clear and convincing evidence that the defendant acted with malice, oppression, or fraud.
California doesn't have a cap (maximum) on the amount of punitive damages that can be awarded. However, the U.S. Supreme Court holds that punitive damages must be reasonably related to the compensatory (economic) damages.
A person's death must be caused by the wrongful act or negligence of another in order for there to be a claim form wrongful death.
A wrongful death claim can arise from a car accident, fall or other accident, or any other circumstance where the death was the direct result of a person's action or omission.
There are a few situations specific to California law:
The first step in a potential wrongful death claim is to find a qualified California personal injury attorney. Although a wrongful death claim is similar to a “traditional” personal injury, there are aspects that make it more complicated and factors that you wouldn't include in a more straightforward personal injury case.
The Enjuris Personal Injury Law Firm Directory is a great place to start when searching for a California lawyer who will be compassionate, skilled, and experienced to take your case.
Here are additional resources you can use to guide your search for a lawyer for your wrongful death lawsuit:
Wrongful death lawsuits are particularly difficult because in the face of such a tragedy, families and loved ones must pick up the pieces of their life despite their grief and soldier on through the legal system, meeting each deadline and acting like it’s any other lawsuit. These are usually filed by husbands, wives, children, parents and siblings of the deceased with the help of a legal representative. Read more