If a loved one is killed as a result of someone else's negligence, can surviving family members recover damages?
If you suffer an injury as a result of someone else's negligence or wrongful act in South Carolina, you can file a personal injury lawsuit against the at-fault party and recover damages.
But what happens if someone else's negligence causes your loved one's death? Do spouses and family members have any civil recourse?
In this article, we'll take a close look at South Carolina's wrongful death laws.
What is wrongful death?
A wrongful death claim is a civil action filed by the personal representative of the deceased's estate against a defendant who caused the death of the deceased through negligence or some other wrongful act.
A wrongful death claim is similar to a personal injury lawsuit in the sense that the personal representative must prove that the defendant's negligence or wrongful act caused the deceased's death.
South Carolina's wrongful death statute can be found in the South Carolina Code of Laws Section 15-51-10.
What's the difference between a wrongful death claim and a survival claim?
Wrongful death claims are often confused with survival claims, but they are 2 distinct claims:
- Wrongful death claims are filed by the deceased's estate so that certain members of the deceased's family can recover damages associated with the loss of their loved one, such as lost financial support and emotional distress.
- Survival claims are filed by the deceased's estate to recover damages sustained by the deceased while the deceased was still alive (i.e., the period between the time they were injured and their death).
Who can file and recover damages in a wrongful death claim in South Carolina?
In South Carolina, a wrongful death claim must be filed by the deceased's estate (i.e., the executor or administrator of the deceased's estate). If the estate doesn't have an executor or administrator named in the will, the court will appoint one.
In South Carolina, surviving family members who can recover damages in a wrongful death lawsuit include:
- The surviving spouse and children of the deceased
- The surviving parents of the deceased (if there are no spouse or children)
- The heirs of the deceased person (if there are no spouse, children, or parents)
How are damages in a wrongful death case calculated?
It's impossible to put a monetary value on the loss of a loved one. The measure of damages in a South Carolina wrongful death case is not the value of the human life lost, but rather the damages sustained by the surviving family members as a result of the death.
These damages may include:
- Pecuniary loss (i.e., the loss of financial care, maintenance, and support)
- Mental shock and suffering
- Wounded feelings
- Grief and sorrow
- Loss of society and companionship
In every wrongful death action, it's up to the jury to decide the total amount of damages sustained by the surviving family members. That total amount is then divided among the eligible surviving family members by the share each would take as an heir in intestacy regardless of the proportion of damages suffered by each.
How do I file a wrongful death lawsuit?
A wrongful death case should be filed in the same manner as the deceased would have filed their lawsuit had they survived.
An experienced attorney will take care of the details, but, in brief, the personal representative of the deceased's estate will have to file the lawsuit in the appropriate court and give proper notice of the lawsuit to the party that is being sued. From there, the party you're suing will have an opportunity to respond and the court will set the dates for hearing and discovery deadlines.
How long do I have to file a wrongful death lawsuit?
If a claim is not filed within this time period (referred to as the statute of limitations), the claim—with few narrow exceptions—will be permanently barred.
What happens if a loved one's death occurs at work?
Most employers are required to provide their employees with workers' compensation coverage.
Workers' compensation allows family members to receive certain benefits if their loved one dies from an injury or occupational illness that arises out of and during the course of employment. These benefits include lost income, as well as funeral and burial expenses.
In some cases, a workers' compensation claim can be filed in addition to a wrongful death claim.
Have you lost a loved one in a preventable accident?
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