What Is Wrongful Death Law?

Losing a loved one is always difficult. It can be made even more so by the knowledge that someone’s actions caused your loved one’s death. While your state may decide to pursue criminal charges against the person who caused the death, you might want to bring a civil case. This is especially true if losing your loved one will cause financial hardship. It’s appropriate to hold someone accountable, and, by doing so, help prevent another person from suffering a similar fate.

Pursuing a wrongful death case can be an overwhelming decision. The following is designed to give you an overview so you can feel comfortable contacting a wrongful death attorney.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is a civil lawsuit for economic and non-economic damages after someone’s negligent or intentional actions caused another person’s death. The damages in a wrongful death lawsuit are provided to the deceased person’s heirs.

A successful wrongful death suit will prove that the person’s death was caused by another’s negligence or with the intent to cause harm, and that the death resulted in compensable injury to the surviving family members.

Proving Negligence

Negligence is the failure to behave with the level of care that a reasonable person would have exercised in the same or similar situation. The appropriate level of care varies based on the situation. For example, doctors are held to a special standard defined by the local medical community.

Negligence is the basis of many medical malpractice, car accident, and personal injury cases. Each of these causes of action can change to a wrongful death action when the victim dies from that conduct.

Intent To Cause Harm

Actions taken with the intent to cause harm can usually be classified as intentional torts. Common intentional torts that can result in a wrongful death action include assault and battery. Many intentional torts also have a criminal counterpart. However, criminal cases are different from wrongful death actions. They can result in jail time or other criminal penalties instead of solely monetary damages.

Additionally, the burden of proof is much higher in criminal prosecutions. In a criminal case, the state must prove the defendant’s guilt beyond a reasonable doubt. By contrast, in a civil action, the plaintiff must prove their case by a preponderance of the evidence.

What Are Common Causes of Wrongful Death?

“The context of wrongful death can be virtually any situation involving the wrongful act of another that causes injuries so substantial that it results in the death of the victim, leaving behind the grieving family,” says Brett A. Carter, a personal injury lawyer at Bertoldo Carter Smith & Cullen in Las Vegas, Nevada.

“This can happen in the common car accident, whether through simple negligence or DUI. It can happen in a slip and fall if the person suffers catastrophic injuries, such as brain injuries, or death, as a result. We often see it in medical malpractice cases, which might involve a medical professional’s delay or failure to respond to an injury, leading to a person’s death. Wrongful death can also result from defective products, such as vehicles that cannot properly withstand a crash impact. These are just a few common examples of the cause of death.”

Who Can Sue for Wrongful Death?

“Generally, state laws limit the right to bring a wrongful death action to close family members and personal representatives of the decedent’s estate. There are different claims that can be brought by those individuals,” says Carter.

Surviving Family Members

“The heirs defined by state law — close family members such as the surviving spouse, children, parents, perhaps even the siblings — can bring a claim for their grief, sorrow, and loss of companionship. Essentially, this is losing what that person meant to them, including their affection, society, and financial support. They can also make a claim for the pain and suffering the decedent consciously experienced prior to their death.”

Personal Representatives of the Estate

“The personal representative, on behalf of the estate, will have claims for things like medical expenses and funeral expenses. It’s often the personal representative who claims exemplary or punitive damages as well,” says Carter.

Who Pays Damages in a Wrongful Death Settlement or Judgment?

“One of the first issues an attorney will consider when evaluating whether to take a case involving death or a catastrophic injury is whether or not the at-fault party is appropriately insured or has the resources to compensate for the loss they caused,” says Carter. “The reality is that states typically don’t require a substantial amount of insurance. You’ll often find that the person has insufficient coverage to compensate the survivors.”

Because the obvious at-fault party may have insufficient insurance coverage or financial resources, Carter says that attorneys need to investigate other avenues to recover damages, such as whether the at-fault party was operating a motor vehicle while on the job. “If so, the employer would be vicariously responsible for their employee’s negligent acts. The employer could also have direct liability for negligent hiring, training, or supervision. Commercial business policies of insurance are typically at least $1,000,000.”

Additional factors could impact compensation. “For example, you could have a product liability claim against the vehicle manufacturer if the airbags didn’t deploy or deployed incorrectly. Or uou may have a situation in which lack of signage caused a fatal collision, and a municipality or private company would be brought in.”

Carter says that finding alternative avenues of compensation is simply part of doing a thorough investigation. “You have to look at all the angles to ensure you’re not missing anything. The damages are so egregious that you have to consider all the present dangers and any and all individuals or businesses who should be held accountable.” Carter advises that it’s also important to adequately cover oneself before tragedy hits. “It’s important to protect others through adequate insurance, but you’ve got to protect yourself and your family foremost. Check to see if you have your own car insurance policy for uninsured or underinsured motorist coverage, medical payments, funeral expenses, or lost income.”

How Do Wrongful Death Attorneys Charge Legal Fees?

“A wrongful death lawyer will most likely take the case on a contingency fee basis. This means they only get paid if they’re successful. ‘Successful’ ultimately means there’s compensation for the client,” explains Carter.

The cost of a case could be significant, which is why “it’s vitally important that the contingency fee agreement exists,” says Carter. It gives people access to justice when most likely they couldn’t afford to pursue it themselves.

“Attorneys who work on a contingency fee will advance the cost of investigating and prosecuting the case—from hiring experts to visiting crash scenes to collecting evidence and speaking to and hiring engineers, doctors, physicists, traffic control experts, you name it. Companies have the resources to hire whoever they want to fight claims. They will go to any length when it’s a claim for wrongful death because of the risk and exposure. It’s critically important that the harmed individuals have the same ability to access justice through legal representation. That’s what the contingency agreement can do for them by eliminating the obstacles.”

Find the Right Attorney for Your Needs

It is important to approach the right type of attorney for your case. Visit the Super Lawyers directory to find an experienced wrongful death attorney in your area.

Wrongful Death Attorney FAQs

When attending an initial consultation regarding potential legal action for wrongful, it’s important to come prepared with questions to help you understand the legal process and assess whether the attorney is well-suited to handle your case. Here are some questions to consider asking:

Do I have standing to bring a wrongful death claim?

This question is crucial as it addresses whether you are legally eligible to file a wrongful death lawsuit. Typically, standing is limited to immediate family members (like spouses, children, and sometimes parents or siblings) or personal representatives of the estate, but this can vary by state.

What is the statute of limitations for filing a wrongful death suit?

Statutes of limitations set the maximum time after an event within which legal proceedings may be initiated. This period can vary significantly from jurisdiction to jurisdiction depending on the state wrongful death statute, and understanding this timeframe is essential to ensure you file your lawsuit within the legal limits.

How is compensation determined in a wrongful death lawsuit?

Compensation in wrongful death cases often includes factors like medical bills, funeral costs, burial expenses, loss of income, loss of companionship, and sometimes punitive damages. Asking this question can help you understand what to expect in terms of potential financial support.

How long will a wrongful death suit take to conclude?

The duration of a wrongful death lawsuit can vary widely based on the complexity of the case, the amount of evidence, the willingness of parties to settle, and court schedules. This question can help set realistic expectations for the timeline of your case.

What is your experience handling similar cases involving wrongful death?

Experience matters in legal proceedings. Asking about the attorney’s experience with wrongful death cases similar to yours can provide insight into their expertise and success rate, which is crucial for building trust and confidence in their ability to handle your case effectively.