Wrongful Death

What is a wrongful death claim?

In general terms, a wrongful death claim refers to a cause of action that may be brought by certain family members of a decedent whose death was precipitated by the wrongful conduct of another. The wrongful act that resulted in death may have been intentional, reckless, or negligent. In cases where a dangerous product caused the death, it may not be necessary to show wrongful conduct in order to recover.

Who can file a wrongful death case?

A surviving spouse can bring a wrongful death claim. If there is no surviving spouse, the children may bring the death claim. If there is neither a surviving spouse or surviving children, the parents of the decedent may pursue the wrongful death claim. Absent a surviving spouse, surviving children, and surviving parents, the administrator of the decedent's estate can sue on behalf of the estate.

Can I bring a wrongful death action if the deceased never held a job?

Yes, even if the decedent never held a job, they may have contributed in some other way to the family. A good example of such a decedent is a housewife, who contributes services, guidance and nurturing to her family. These contributions are quantifiable as "pecuniary losses" in a wrongful death action.

Can someone sue for the pain and suffering of a decedent?

Yes, in addition to the wrongful death, a decedent's family may recover damages for the pain and suffering that the decedent endured prior to death.

What if a person dies before bringing a personal injury lawsuit?

It depends on whether a person dies as a result of injuries from the accident or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person's heirs may recover money through a lawsuit. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person's estate.

What kinds of damages are recoverable in these cases?

Normally, the following are recoverable:

• expenses associated with the death (medical & funeral);
• loss of victim's anticipated earnings;
• loss of victim’s benefits (pension, medical coverage, etc.);
• loss of inheritance;
• pain and suffering of the survivors; and
• the loss of care, protection, companionship to the survivors.

When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?

A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction, whereas, in a civil case, the defendant will typically have a monetary judgment entered against him/her.

What is the first step in pursuing a wrongful death claim?

Given that wrongful death claims and survival actions generally involve a variety of complex legal issues, the first step is to consult an attorney. An attorney should be consulted as soon as reasonably possible because there are statutes of limitations and possibly other critical deadlines that may impact the case.

What about the costs involved in pursuing a case?

Many attorneys will agree to handle wrongful death cases and survival actions on a contingency fee arrangement. This means that the attorney will not charge an hourly rate for his or her services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment.

How long will my wrongful death case last?

The vast majority of all cases, including wrongful death cases, are settled prior to trial. Some cases are settled prior to the filing of a lawsuit, while others are settled during litigation or even on the "steps of the courthouse" just before trial. A wrongful death case, if litigated to trial, could last a number of years. One who pursues a wrongful death case should understand from the outset that a quick resolution cannot be guaranteed.