How to Recover Damages in a North Carolina Wrongful Death Lawsuit

North Carolina negligence laws and wrongful death lawsuits

Recovering from your own injury can be a challenge, but recovering from the loss of a loved one can be even more difficult. North Carolina's negligence standards can seem unfavorable to plaintiffs, and a wrongful death lawsuit is complicated. But there are ways to be successful and recover the damages you deserve if you've lost a family member to someone else's negligence.

Any loss of life is dreadful and devastating to the surviving family, but wrongful death is specifically the loss of a loved one in an accident that was caused by someone's negligence. In North Carolina, the statute defines it as a death caused by the "wrongful act, neglect, or default of another."

If you've lost a family member in an accident, you're probably feeling grief, and maybe fear. Perhaps you relied on this person as a financial provider. While nothing can bring your loved one back, there are ways to recover financial damages for wrongful death — but it's a little different from a regular personal injury lawsuit.

Wilder Pantazis Law Group
Wilder Pantazis Law Group North Carolina personal injury law firm
FREE CONSULTATION (704) 342-2243 Specialty: Personal injury • Hablamos Español

Jump to section

Who can file a wrongful death claim in North Carolina?

A person who's deceased can't file a lawsuit. So, another person has to do so on their behalf.

If the person died from a criminal action, that would be handled separately in criminal court. You cannot charge someone with a crime — that must be handled by a prosecutor. If a person is found guilty of a crime, they're punished by imprisonment or other penalties.

A wrongful death claim is a civil lawsuit. If you win a civil lawsuit for wrongful death, you recover financial damages (i.e. money).

Enjuris tip: Learn more about the differences between a civil vs. criminal case.
A wrongful death lawsuit allows the survivor to be compensated for damages that the deceased person would've been entitled to had they lived. It allows the legal beneficiary of a deceased person to be in the financial position they'd be in if the person hadn't died.

A wrongful death claim can be filed by the executor of the deceased person's estate or by an administrator (if they didn't leave a will). The person who files the claim is a "personal representative" of the deceased and acts instead of beneficiaries, heirs, legatees, or survivors.

Often, the personal representative is a spouse, parent, or child of the deceased.

Elements of a North Carolina wrongful death claim

The basis for a wrongful death claim is the same as any other personal injury lawsuit. It must include these 5 elements to establish negligence:

  1. The defendant had a duty to either act or not act in a specific way.
  2. The defendant breached their duty of care to the deceased person.
  3. Breach of that duty was the cause of the injury.
  4. The defendant should have foreseen the likelihood that someone would be harmed by their action or inaction.
  5. The injury resulted in actual financial damages (cost of medical treatment, lost wages, pain and suffering, etc.).

In a wrongful death claim, there's the additional element of proving that you're a legal beneficiary who is entitled to share the recovery.

There are a couple of important legal concepts to a North Carolina wrongful death claim:

  • Actual cause, which means that the defendant's act or omission caused the person's death; and
  • Proximate cause, which requires proof that the person's death was a foreseeable result of the defendant's action or inaction.
A plaintiff must prove both actual and proximate cause in a wrongful death lawsuit.

North Carolina's pure contributory negligence standard

Every state in the U.S. follows 1 of 4 fault systems. These rules determine how much (or if) you can recover damages for a negligence claim.

In some states, even if the injured person had some liability for the accident, they can still recover damages, but the amount is reduced by the percentage of the plaintiff's fault. For example, in a car accident case where the defendant was at fault but the plaintiff could've acted differently in a way that would have avoided the collision, the court would evaluate what percent was the plaintiff's fault. If the plaintiff was found to be 10% liable, their damage award would be reduced by 10%.

But that's not how it works in the Tarheel State.

In North Carolina, if the injured person has any fault for the accident, they aren't allowed to receive any damages.

Calculating damages in a wrongful death lawsuit

You may claim these expenses as damages in a wrongful death lawsuit:

  • Medical treatment. Medical treatment costs can include doctor and hospital visits, prescription medication, assistive devices, and any other costs related to expenses related to the injury that a person incurred before they died. The Wrongful Death Statute limits payment of hospital and medical expenses to $4,500, but there are other federal and state laws that might supersede this amount.
  • Funeral expenses.
  • Financial losses:

    • The monetary value of loss of net income the deceased would have earned
    • The monetary value of loss of services, protection, care, and assistance from the deceased
    • The monetary value of the loss of companionship, comfort, guidance, advice, and loss of consortium
  • Property loss. If the death was because of a car accident, for instance, the cost of replacing or repairing a car would be included under property loss. You're entitled to the fair market value of any property lost, including the deceased person's home or other belongings if they were damaged as part of the injury.
  • Pain and suffering. You can recover for the pain and suffering the person endured as a result of the accident but before their death. This might include both physical pain and the trauma of being aware of their own impending death.
  • Punitive damages. North Carolina law § 1D-35 presents the following factors as determining whether or not to award punitive damages:

    1. The reprehensibility of the defendant's motives and conduct
    2. The likelihood, at the relevant time, of serious harm
    3. The degree of the defendant's awareness of the probable consequences of its conduct
    4. The duration of the defendant's conduct
    5. The actual damages suffered by the claimant
    6. Any concealment by the defendant of the facts or consequences of its conduct
    7. The existence and frequency of any similar past conduct by the defendant
    8. Whether the defendant profited from the conduct
    9. The defendant's ability to pay punitive damages, as evidenced by its revenues or net worth
North Carolina caps punitive damages at 3 times the amount of the compensatory damages or $250,000, whichever is higher. Drunk driving is an exception to the damage cap.
Enjuris tip: There are some circumstances when a wrongful death doesn't involve financial damages. For example, if the deceased person is a young child who didn't provide income to their family and if there were no related medical expenses (like if they died instantly during an accident), then, the court might award nominal damages.

When the court awards damages in a North Carolina wrongful death lawsuit, the money is distributed according to the North Carolina Intestate Succession Act. This act governs how an estate is distributed if a person dies without a will. Therefore, even if the deceased did have a will, the damages would be distributed separately from assets covered in the will.

Workers' compensation benefits for a deceased person

If the deceased person died at work, the survivors might be able to claim damages through the workers' compensation system. A deceased worker's dependents can receive death benefits, along with funeral and burial costs.

Survivor benefits are two-thirds of the workers' average weekly wage for up to 500 weeks. They are provided to a person who is wholly dependent on the deceased worker, including a spouse or minor child. If there are no dependents, the benefit is paid to the next of kin as a lump sum payment.

In North Carolina, workers' compensation covers up to $10,000 of a deceased worker's funeral and burial costs.

Statute of limitations for a North Carolina wrongful death lawsuit

You have 2 years from the date of the person's death to file a wrongful death lawsuit.

Your lawyer's role in a wrongful death lawsuit

A wrongful death lawsuit is usually quite complicated. Fortunately, you don't have to navigate the legal maze on your own.

The right lawyer will:

  • Investigate the cause of death.
  • Determine liability for the death.
  • Identify possible insurance remedies for compensation.
  • Identify who is eligible to serve as the personal representative and who would be a beneficiary of the wrongful death award.
  • File claims with insurance companies.
  • Prepare and litigate a wrongful death lawsuit if necessary.

As in any personal injury lawsuit, the liable person or entity in a wrongful death action is going to try hard to mount a defense. In a wrongful death claim, the defense might be even more strenuous because there's often a large amount of money involved. Especially if the defendant tries to claim that the person contributed some liability in their own accidental death, your lawyer will need to prove that's not true in order for you to recover damages in North Carolina.

You can use the Enjuris law firm directory to find a North Carolina wrongful death lawyer who can help manage every aspect of your claim.

Need a lawyer?

Browse our national directory of top-rated accident and injury attorneys in North Carolina.
Find a North Carolina personal injury lawyer