Wrongful Death Claim: Lawsuits & Attorneys

Placing a monetary value on the loss of a human life

How do you put a monetary number on the loss of your mother or your wife?

That is what juries are asked to do in wrongful death cases. To illustrate this point: A jury awarded a bereaved California family $16 million after a woman died while participating in a radio contest to win a Nintendo Wii. She was supposed to drink as much water as possible ("Hold Your Wee for a Wii") and ended up dying in a rare case of acute water poisoning.

The jury instructions were unfathomable, as most wrongful death cases are. They were told to put a number on each of the surviving family members for "love, companionship, comfort, care," and more, and in the case of her husband, "physical intimacy." How does one do this?

What exactly is a wrongful death case?

These are civil actions brought by the surviving family members of a decedent who passed away prematurely because of the negligent actions of another. These careless actions are the underpinnings of the case. Additionally, these actions are meant to compensate the living members of the family, not the decedent. Courts do take into account the pain and suffering of the decedent, but they are part of the overall picture.

Wrongful death: civil action brought by family of one who died prematurely due to another’s negligence. Tweet this

There are actually two types of cases in this area: wrongful death and survival actions.

Wrongful death actions are meant to compensate the survivors for damages such as the loss of emotional, financial and other support they had been contributing to the household.

Survival actions, on the other hand, pay for damages suffered specifically by the victim as a result of the defendant's actions. This includes pain and suffering, medical bills and other damages between the time of injury and death.

These damages are paid to the estate, which is then funneled to the beneficiaries (i.e., the survivors) anyway.

Either way, these claims are usually a two-step process.

Before a civil claim can be filed, the family appoints a personal representative in the probate court to represent the decedent's estate. That individual will then bring a civil suit on behalf of the family.

Only certain people can bring claims:

  • Spouses
  • Partners
  • Children
  • Siblings
  • Those who suffer financially

The personal representative "is" the decedent and acts in the best interests of the estate. Once they are authorized, they can bring a wrongful death case. Wrongful death cases can be brought for all sorts of cases: motor vehicle cases, personal injury, medical malpractice, drunk driving accidents and even murder.

The interesting aspect of a wrongful death case is that as a civil case, the burden of proof is "preponderance of the evidence." This means that the plaintiff has to prove that, more likely than not, the defendant was negligent in his actions. This is far less than the burden of proof in criminal court, which is "beyond a reasonable doubt." This works heavily in the plaintiff's favor and can mean a win in civil court – and a loss in criminal court for the same case with the same facts.

Who can be sued in a wrongful death case?

Almost anyone can be sued for wrongful death, save for those who have immunity because of their position within governmental agencies. This varies from state to state and must be checked before filing a case.

Otherwise, any individual or company can be sued for wrongful death. Here are just a few examples:

  • Doctor who performed a faulty operation and hospital that employs him;
  • Driver who ran over your family member and company that employs him;
  • Driver on the freeway who hit your family member;
  • The designer of a product that failed to provide adequate warnings; and
  • The company that made the dangerous product that exploded in your grandfather's face, as well as everyone along the chain of distribution.

The representative of the estate will have to prove the same elements of negligence that the decedent would've had to prove if he or she were alive. This means that the defendant owed the plaintiff a duty of care, the duty was breached, this breach was a direct and proximate cause of the death, and this breach caused damages.

What type of damages can a representative try to recover under wrongful death?

There are three types of damages that a personal representative can try to recover:

  • Economic: These are generally the financial contributions the decedent would have made to the survivors had he or she lived. They can include:

         a. The loss of the decedent's expected earnings;
         b. The loss of benefits (pension plans, medical coverage, etc.);
         c. Loss of inheritance; and
         d. Medical and funeral expenses.

  • Non-economic: These are intangible damages that are difficult to put a number on, such as:

         a. Loss of care, guidance, advice, and nurturing from the decedent;
         b. Loss of consortium from a spouse;
         c. Loss of love and companionship; and
         d. Mental anguish, pain and suffering.

  • Punitive: These damages are meant to punish the defendant. These are not available in some states or against some governmental agencies.

    There are various other methods used to calculate how to pay victims in wrongful death cases.

    Courts sometime look at how the victim would have provided for surviving family members based upon income at the time and actuarial lifetime expectancy; this is called "valuation by human capital" or the "pecuniary loss rule."

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How long do I have to file a wrongful death case?

Wrongful death claims are governed by state law. As such, each state has its own statute of limitations that governs how long a personal representative has to file. It is best to ask an attorney in your state how long you have. If you don't have an attorney, check out the Enjuris law firm directory for help!

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Did you know that wrongful death law varies by state?

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