Wrongful Death

Wrongful death lawsuits are filed by family members or other beneficiaries when a person dies as the result of someone else’s misconduct, such as negligence that causes a personal injury. Wrongful death can be intentional or accidental, and damages can differ significantly depending on circumstances surrounding the individual’s death.

According to legal historians, wrongful death arose out of the industrial revolution and increasing populations of urban settings. As corporations grew bigger and larger buildings were constructed to accommodate more people – for both residence and business – deaths due to accidents, negligence, and even malicious acts also increased. With the ever-increasing introduction of new products and inventions, some of which wind up in consumers’ hands with little or no testing causing many problems, the number of civil actions for wrongful death has also increased.

Finding a Wrongful Death Attorney

Because wrongful death laws vary from state to state, it is best to find a lawyer who knows the appropriate rules and regulations for the area where you live. Examples of differing laws include:

  • Statutes of limitations and other filing deadlines
  • Award limits for compensatory damages or punitive damages
  • Who can be sued and in what circumstances
  • Third-party liability claim eligibility

If a loved one died because of a personal injury caused by someone’s negligence or misconduct, you should start the wrongful death lawsuit process right away.

Wrongful Death Lawsuit Process

The specific requirements of a wrongful death suit differ from state to state, but the civil lawsuit process is very similar across the United States.

  1. Free Case Review
  2. Research and Documentation
  3. Filing the Wrongful Death Action
  4. Discovery Phase and Pretrial Motions
  5. Trial Phase
  6. Verdict
  7. Appeals

Longer descriptions of each step are provided below.

Free Case Review

Personal injury attorneys will generally offer a free case evaluation to determine if you have a viable claim. This is an important step, as it allows both you and your lawyer to ask questions about the circumstances of your loved one’s death, what could or should have been done to prevent it, and how much compensation you can expect to receive. If you decide to move forward with your wrongful death case, your lawyer will have you sign an agreement allowing them to represent you and your family in the matter.

Research and Documentation

In the next phase, your legal team will identify potential defendants and start pulling together documentation and other information necessary to write the legal complaint. This can include seeking records from medical providers, employers, governmental agencies, and organizations relevant to your wrongful death claim. Your law firm may also send investigators to interview witnesses and other individuals who can corroborate the claim. Since the burden of proof is on your legal team to make its case, this research and documentation can take a long time, which is why it’s important to start the process right away.

Filing the Wrongful Death Action

Once the complaint is written, filing the claim in a timely manner is a critical step in the legal process. This is where your state’s wrongful death statute of limitations comes into play, since filing too late can void your chances of receiving compensation. A lot of other factors come into play as well, such as filing the claim in the appropriate court (venue) and making sure the complaint is written in the correct format and includes all the necessary information.

Discovery Phase and Pretrial Motions

During the discovery phase, plaintiffs and defendants are required to share evidence they have related to each of their cases. At this time, both sides will often file a series of pretrial motions as well, including motions for summary judgments or attempts to have certain claims dismissed. The judge will rule on each motion as it comes up, and those rulings may persuade one side or the other to seek a settlement. Many initial wrongful death settlements offered by the defendants during this period are low, in the hope that the plaintiff is desperate and willing to take any amount offered. However, every settlement is worth discussing with your lawyer against the possibility of a lengthy trial.

Verdict

Once the trial is over, the judge or jury will deliberate and issue a verdict declaring the defendant liable or not liable for the wrongful death. If the defendant is deemed liable for the death, then a separate determination will be made to set monetary damages for compensation to the deceased’s family. Compensation rules are different for each state, and some states set caps on the amount of money a person can receive for certain types of damages. In some instances, a judge can also change the compensation amount based according to rules set by state laws or legal precedent.

Appeals

For cases that go to trial and receive a verdict, there are almost always appeals to a higher court (often called an appeals court or superior court, depending on the state). Defendants may appeal for a number of reasons, including problems related to the plaintiff’s evidence or witnesses, procedural issues in the trial or other phases of the case, or an attempt to lower the verdict amount. Plaintiffs may also appeal on evidentiary or procedural grounds. An appeal may result in overturning all or part of a verdict, which in some cases could result in a new trial.

Wrongful Death Compensation

By definition, wrongful death occurs when someone dies due to circumstances that could or should have been avoided. Therefore, compensation in wrongful death lawsuits is often higher than other personal injury lawsuits.

Wrongful Death Damages

Compensatory damages determined by a judge or jury in a wrongful death trial typically cover two separate areas: expenses incurred by the injury before the individual died, and expenses to the family caused by the individual’s death. Punitive damages to punish the individual or organization responsible for the loved one’s death may also be available in some areas.

Compensatory Damages for Wrongful Death Verdicts

  • Medical expenses related to the personal injury that led to wrongful death
  • Loss of income or other support the person otherwise is expected to have provided
  • Loss of protection, care, or services to dependents and beneficiaries of the deceased person
  • Loss of benefits, including health care or retirement benefits (pension, 401(k), etc.)
  • Loss of inheritance
  • Costs to replace property damaged related to the accident or injury (e.g., a damaged vehicle)
  • Funeral expenses and burial costs
  • Loss of companionship or consortium
  • Mental anguish and sorrow
  • Pain and suffering experienced before the decedent’s death (survival actions)

Not all of these compensatory damages are available in all states. For example, California does not allow pain and suffering for a wrongful death claim. Other states may have multipliers that increase the amount of damages, such as New York which adds 9% interest to damages awards calculated from the date of death. Common law factors also may come into play with regard to damages.

During your free consultation, discuss your case with your lawyer to learn more about which damages could come into play in your case.

Wrongful Death Settlements

Settlements for wrongful death cases generally will consider all of the above factors, though the final amount will be presented as a single number rather than broken out into different categories. A settlement can be reached at any point in the lawsuit process, up to the issuance of a verdict. In some cases, a settlement can be reached even after a verdict, removing the threat and need for appeals that could take months or years.

There is no average amount for wrongful death settlements. Each case is individual and relies on factors specific to the circumstances surrounding the person’s death. The best way to find out if you are eligible to file a claim for legal compensation related to a wrongful death is to talk with a lawyer who knows the laws and case history for your state.

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Workers’ Compensation vs. Wrongful Death Lawsuits

If the deceased died in an accident on the job (e.g., construction accident, driving a vehicle for work, etc.), surviving family members may be eligible for workers’ compensation benefits, also known as death benefits. While workers’ comp death benefits are different from state to state, they can include a percentage of deceased wages (often two-thirds or 66.7%), burial expenses, and even health benefits for dependents.

Workers’ compensation insurance often prevents employees from being able to sue employers. However, beneficiaries may still be able to file a third-party liability claim against another company or individual who contributed to the victim’s death. If your loved one died in a workplace accident, you should talk to a workplace injury lawyer to see if you have an eligible claim.

Wrongful Death Terminology

Cause of Action

Generally speaking, the cause of action is the set of facts that allow someone to file a lawsuit. The cause of action for a wrongful death claim is the set of circumstances surrounding the deceased individual’s death. This may include not only the direct cause of injury, but also any wrongful acts taken by the defendant long before the injury that contributed to the person’s death.

Duty of Care

Used in medical malpractice cases, a duty of care refers to the duty that doctors and other medical practitioners have to provide a reasonable standard of care for their patients. This does not necessarily mean that all accidents leading to a person’s death are grounds for a wrongful death action. See medical malpractice for more information ≫

Standard of Proof

The standard of proof in a civil trial (including wrongful death cases) is a “preponderance of evidence.” This means that plaintiffs have to show the defendant’s actions or inaction more likely than not contributed to the deceased person’s death. This is a lower standard than used in for criminal prosecution, which requires proof beyond a reasonable doubt. What constitutes a preponderance of evidence may differ between venues.

Survival Statute

Survival statutes (or survivorship statutes) allow tort claims to be transferred from an injured party who dies to their surviving family members. This allows close family or other beneficiaries to pursue civil claims for the pain and suffering their loved one experienced while still alive.