Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. Under common law, a dead person cannot bring a suit, and this created a legal hole in which activities that resulted in a person's injury would result in civil sanction but activities that resulted in a person's death would not.
The standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. In Australia and the United Kingdom, it is 'on the balance of probabilities'. For this reason, it is often easier for a family to seek retribution against someone who kills a family member through tort than a criminal prosecution. It should be noted, however, that the two actions are not mutually exclusive; a person may be prosecuted criminally for causing a person's death (whether in the form of murder, manslaughter, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action (as in the O.J. Simpson cases).
In most, if not all common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person. However, now the states have each enacted statutes to create a right to such recovery. The issue of liability will be determined by the tort law of a given state.
See Lord Campbell's Act for the origin of wrongful death liability.
Accident Law - Wrongful Death - Attorneys, Lawsuits, Claims, Settlements
Overview: What is Wrongful Death?
A wrongful death action arises when a person is killed as the result of negligence, product liability, or malice on the part of another person. Negligence might occur in a situation like an automobile or airplane accident, an accident at a workplace, or medical malpractice. The manufacturer of dangerous products might be strictly liable for deaths caused by faulty or unreasonably dangerous products, such as an unsafe automobile or drugs with dangerous side effects. Intentional violence that causes death can also be covered by a wrongful death lawsuit. In that situation the person or persons responsible may also be prosecuted under criminal law. Close family members and sometimes other dependents can sue to recover damages that result from a wrongful death.
The idea of lawsuits for wrongful death is a relatively new one. Common law, the law brought to the United States from England, did not allow this kind of lawsuit. Under common law, when a person died, the right to sue for damages for the death died with them. The right to bring wrongful death actions has been created in America by state laws. At this point, every state has passed some kind of wrongful death law, and each state’s law is different. Because of this variation, it’s particularly important that you check your state’s law on every aspect of a wrongful death lawsuit.
The legal elements of a wrongful death lawsuit generally are:
The death of a human being caused or partly caused by the conduct of the person being sued (the defendant).
The defendant was negligent, strictly liable (in producing a product), or acting intentionally (as in intentional violence or murder).
Surviving family members or dependents are suffering monetary damages as a result of the death.
A personal representative has been appointed for the estate.
Damages in a wrongful death lawsuit are calculated differently from damages in personal injury lawsuits, and the damages available often differ from state to state. See Damages in a Wrongful Death Lawsuit for more information. The people eligible to sue may also differ from state to state. See Who May Sue for Wrongful Death?. It is particularly important that a wrongful death lawsuit be brought within the time allowed by state law or the right to sue may be lost. Each state’s law must be checked to find the time limitations. See Time Limits for Filing a Wrongful Death Claim for information.
If a family member or someone who was providing you with care or financial support has died as the result of negligence, a faulty product, or intentional violence, you might be able to bring a wrongful death lawsuit. The best way to find out if you have a valid claim is to consult an experienced wrongful death lawyer who is familiar with the laws of your state. To find out how a qualified wrongful death attorney can assist you, see How a Wrongful Death Lawyer Can Help You.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.
To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.
Who May Sue for Wrongful Death?
State laws vary on who may bring wrongful death lawsuits. In all states, close family members like spouses and children and parents can bring wrongful death actions. If children are minors, state law may require them to have a legal guardian, called a guardian ad litem, appointed to look out for their interests in the lawsuit. Some states allow more distant family members, such as grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action in the way a parent would in the same situation. Some states also allow legal dependents who suffer financial injury from the death to bring a wrongful death action for lost care or support.
Parents can bring wrongful death actions for the death of their children, but in several states there is no wrongful death unless the child has been born alive and then died. The death of a fetus is not a wrongful death in those states and the parents can’t bring an action for financial losses resulting from the death or for their emotional trauma in losing the child. In other states, the death of a fetus can be the basis for a wrongful death suit. Check your state law or consult with an attorney to find out if such an action is allowed in your state.
Close family members can also bring wrongful death lawsuits for the death of elderly people, but since the children of the elderly are usually grown and self-supporting, they can’t claim damages for parental care, guidance, nurturing, or for financial support. As a result the damage awards in those cases are generally not large. If the elderly person is still working, the family members might be able to claim a loss of future inheritance. See Damages in a Wrongful Death Lawsuit for more information.
Wrongful death lawsuits can be brought against a wide variety of people, such as the driver at fault in an automobile accident, a negligent employer, the manufacturer of a faulty or dangerous product, or a violent criminal. A member of a family, however, can’t be sued by another family member for wrongful death. So if a battering husband inflicts a beating on his wife that results in her death, he is subject to criminal penalties, but the couple’s children can’t sue their father for wrongful death to recover damages for the loss of their mother’s care, nurturing, and support. In other cases, such as the famous civil lawsuit against OJ Simpson (following the criminal action), the family of the victim may sue if they aren’t related to the defendant.
Most wrongful death lawsuits involve some kind of negligence, such as in a driving accident, work accident, bad product, or medical malpractice. These cases are similar to personal injury lawsuits for nonfatal injuries, but the damages are different. See Damages in a Wrongful Death Lawsuit for more information.
State laws do vary with regard to who may bring a wrongful death lawsuit. It is best to contact a wrongful death lawyer if you are contemplating bringing a wrongful death action.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about wrongful death, see Overview: What is Wrongful Death?
To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.
To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.
Damages in a Wrongful Death Lawsuit
Wrongful death laws vary a great deal from state to state and damages that may be available in one state may be barred in another. It’s very important that you get accurate information on the damages available in your jurisdiction when you evaluate your case. See How a Wrongful Death Lawyer Can Help You for more information.
The types of damages that may be available to you in a wrongful death lawsuit include the following:
Medical and funeral expenses connected to the death;
Loss of the victim’s expected earnings between the time of the death and the expected retirement or death;
Loss of benefits like pension plans, medical coverage, and so on;
Loss of inheritance;
Damages for mental anguish or pain and suffering of the survivors;
Loss of care, protection, nurturing, and companionship of the survivors;
Punitive Damages (see below).
In deciding on the amount of damages, the judge or jury will consider many things about the person who died, such as his earning history, his health, and his character. The last may include considerations of how he handled money, such as if he saved, if he gambled, or if he squandered money. The damage recovery may be less for a family whose provider gambled away half his income than for a family whose provider used all his income for family support.
The amount of damages for things like future earnings is reduced to what is called present value. For example, if the decedent had 25 years left to work and was making $60,000 a year, the calculation would not involve multiplying $60,000 by 25 and adding expected wage increases. The amount of damages is an amount that if invested conservatively, will bring in the amount the decedent would have earned over the same period of time.
These calculations are extremely complicated, and the parties often use expert witnesses, such as economists, to give their opinion on the proper amount of damages. These calculations don’t include just income earned outside the home, but also the monetary value of care and nurturing provided inside the home. If the homemaker of the family is killed, the family is entitled to recover the costs of his or her many services, such as child care, cooking, laundry, house cleaning, shopping, and transportation.
In some states, plaintiffs can also recover interest on the damages up to the time they are collected. Because state laws differ so much in this area, it’s essential to consult your state law (and/or your wrongful death attorney) to find out if interest is allowed, and, if it is, whether it is calculated from the time of the death, the time the damages were incurred, or the time the lawsuit was filed.
Punitive damages are damages awarded to punish the defendant for especially bad conduct and are not available for wrongful death lawsuits in many states. In the states where punitive damages are allowed, the law generally requires plaintiffs to prove that the defendant’s conduct was particularly deplorable by, for example, demonstrating that the defendant’s actions were intentional or malicious.
The types and amounts of damages that are recoverable in a wrongful death case can vary depending on state law and the specific circumstances surrounding the death. It is wise to consult with an experienced wrongful death attorney right away to evaluate your case and help you every step of the way.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about wrongful death, see Overview: What is Wrongful Death?
For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.
To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.
Time Limits for Filing a Wrongful Death Claim
Every state has a limit on the amount of time a person has to file a wrongful death lawsuit in court. The length of time can vary, from one year to as long as three years. This time limit is called the statute of limitations. If you do not file your wrongful death action on time, you will be barred from filing it all together. Questions about the limitations period are often brought up by the person or persons being sued, seeking to have the case dismissed because it was not filed on time. The person suing, however, may save his or her case by looking to the specific rules governing when the statute of limitations time begins to run. Sometimes the time runs from the wrongful death itself, but sometimes it runs from the time that the cause of death was discovered (which could be later).
For example, suppose a death is ruled an accident and evidence of murder is not discovered for two years after the death. The state’s statute of limitations for wrongful death is one year. Is it too late for the family to sue the murderer? In many states, the statute of limitations will not begin to run until the time the evidence of murder is discovered. This is sometimes called the “discovery” rule. In our example, the family would have a year after the discovery of the murder to bring the lawsuit. Since calculations of the correct statute of limitations time period are complicated, and since a claim will be lost forever if it isn’t brought within the time limit, it is always advisable to consult with an experienced wrongful death attorney who is familiar with the law of the state where the death occurred as soon as possible after a wrongful death is discovered. See How a Wrongful Death Lawyer Can Help You for more information.
In some states, the statute of limitations for wrongful death becomes even more complicated if the deceased doesn’t die right away. If the deceased is injured and has a claim for personal injury, the deceased usually must comply with his or her state’s statute of limitations for personal injury. For example, suppose a man is injured in an automobile accident, lives for just over two years, and never brings an action for personal injury. He then dies of complications from his injuries. If his state has a two-year statute of limitations for personal injuries, that period will have already run before he died, and in some states, he will already have given up any rights he has to file a lawsuit for damages from the accident. In such a case, his family will not be able to bring a wrongful death action because the claim has expired.
Some states also have special laws that apply to cases where a person has been killed by a faulty or dangerous product. In those states, the statute of limitations time period begins to run at the time of death, even if the family of the deceased didn’t know that the product caused the death or that the product was faulty or dangerous.
Time limits for filing a wrongful death lawsuit can vary from state to state, and the types and amounts of damages that are recoverable can vary greatly as well. If you are contemplating filing a wrongful death action, it is wise to consult with an experienced wrongful death attorney right away to evaluate your case and help you every step of the way.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about wrongful death, see Overview: What is Wrongful Death?
For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.
To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.
Wrongful Death Lawsuits: What They Are and How They Work
A wrongful death lawsuit involves the death of a person that is caused by the negligence or malicious action of another person or from some kind of strict liability, such as the liability for faulty products. Wrongful death lawsuits can be complicated or straightforward, and it’s difficult to predict how long it will take to resolve such a lawsuit.
Contacting a Wrongful Death Attorney
Filing a Wrongful Death Lawsuit
Discovery
Wrongful Death Pre-trial Motions
Wrongful Death Settlement
Wrongful Death Trial
Wrongful Death Appeal
Wrongful Death Collection
Contacting a Wrongful Death Attorney
If you think you might have a wrongful death claim, the first thing you should do is to contact an experienced wrongful death lawyer. The attorney will evaluate your case, and if you have a good claim, he or she may represent you.
Filing a Wrongful Death Lawsuit
Your wrongful death attorney may try to settle the case by demanding damages from the defendants. If the case is not settled at this point, the next step is to file a document called a complaint with a court to begin a wrongful death lawsuit. The person filing the suit is called the plaintiff. The person being sued is called the defendant. The complaint states the reasons why the plaintiff is suing the defendant, the law that supports the plaintiff’s claims and what the plaintiff is demanding by way of damages (compensation). A third party serves the complaint on the defendant (or all defendants if there is more than one). The defendants have a specified time to reply to the complaint, such as 20 to 30 days. This reply is usually called an answer. The answer typically outlines the defendant’s defenses to the plaintiff’s claims and seeks to have the plaintiff’s case dismissed.
Discovery
After the lawsuit has been filed, both the plaintiff and defendant have an opportunity to obtain information from each other about the case. This part is called “discovery.” Discovery can take the form of written questions, a deposition (interview) in front of a court reporter, and/or requests for relevant documents and items.
Wrongful Death Pre-trial Motions
Before the case is set for trial, attorneys for either side may make legal arguments about the case to the court, which usually take the form of legal motions. These arguments might concern details about the complaint or answer, disputes about getting evidence, or an argument that one party is entitled to win the case without a trial.
Wrongful Death Settlement
As a case is nearing the time for trial, many states or courts insist that the attorneys meet with a judge for a settlement conference where the judge tries to help the parties work out a settlement. In some places, the parties are referred to mediation before a case can be set for trial, usually to encourage parties to settle their differences rather than resort to a costly court battle.
Wrongful Death Trial
A lawsuit will be set for trial before a judge or jury (the plaintiff gets to decide) if the parties are not able to settle out of court. During the trial, parties will present witnesses, cross-examine opposing witnesses, present evidence, and make legal and evidentiary arguments. At the end of this process, the judge or jury will enter a verdict for the plaintiff or defendant. If the verdict is for the plaintiff, the judge or jury will also decide on the amount of damages.
Arbitration is an alternative to court trials. It is similar to formal litigation, but instead of a judge and jury there is an arbitrator or a panel of arbitrators. If the arbitration is binding, the decision of the arbitrator or panel is as final as the verdict of a court.
Wrongful Death Appeal
Either of the parties can appeal (have the case looked at again by another court) if there was a significant legal error in the trial.
Wrongful Death Collection
A lawsuit is finished when an appeal is completed or a verdict entered and the time for appeal has run out. At that point, the plaintiff still has to collect the damages that have been awarded from the defendants. If defendants don’t pay the damages awarded by the court, states have procedures that allow the plaintiff to find out where the defendant’s assets are located and to collect as much of the damage award as possible.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about wrongful death, see Overview: What is Wrongful Death?
For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.
To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.
Wrongful Death and the Physician-Patient Privilege
All states have laws about what is called the physician-patient privilege. This privilege includes a patient’s right to medical privacy and the right to prevent a physician from revealing the contents of medical files without the patient’s permission. This privilege is frequently an issue in wrongful death lawsuits, where wrongful death lawyers need access to the medical information to prepare for a case. Because the plaintiff (the person suing) in the wrongful death lawsuit must prove that the defendant(s) caused the wrongful death, medical evidence is crucial.
Usually, a physician is not allowed to release information without the permission of the patient or deceased person. There are, however, exceptions to this rule. In some states, the deceased’s personal representative, surviving spouse, or next of kin has the right to waive (release) the privilege and have medical information released once the injured person has died.
In some states, the files may only be released to a hospital or a doctor; they can’t be released directly to a wrongful death attorney. There is also the question of whether the files can be obtained before a wrongful death lawsuit has been filed. There is some dispute about whether the files should be released, but the plaintiff’s attorney can usually obtain the files with his or her client’s permission if the files are sought in contemplation of filing a wrongful death lawsuit.
If the wrongful death action began as a personal injury action during the injured person’s lifetime, and the plaintiff later died of the injuries, the patient’s waiver of the physician-patient privilege for purposes of the personal injury action will also be a waiver of the privilege for the subsequent wrongful death lawsuit by the patient’s family. For example, if a woman is injured in a car accident and she files a lawsuit to recover damages for her injuries, from which she later dies, her family’s wrongful death lawyer can have access to the medical information she authorized her physician to release for her personal injury claim.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about wrongful death, see Overview: What is Wrongful Death?
For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.
How a Wrongful Death Lawyer Can Help You
If a family member or someone who supports you has been killed because of negligence, product liability, or violence, you might be able to bring a wrongful death action to recover damages for lost care, support, benefits, inheritance, and more. Because every state law is different, it’s very important to know what your state’s law on wrongful death is. Applying the law can be complicated, and the best way to be sure you are protecting your rights is to consult with a wrongful death lawyer who is experienced in your state.
Your experienced wrongful death attorney can tell you if you still have time to file a wrongful death lawsuit, if you are eligible to bring such a suit, whether there is enough evidence that the defendant caused the wrongful death, what kind of damages might be recoverable, and the best strategy to settle or litigate your case. If you have a good case, your attorney can help obtain information you need to win the case, such as medical evidence, police reports, physical evidence of an accident or violence, and expert evidence on many subjects, including faulty products, drug side effects, and medical malpractice. An attorney can interview and screen witnesses on your behalf.
Your attorney may make phone calls and write letters for you and negotiate a settlement. When you are up against professional negotiators, as you always are if an insurance company is involved in your case, you will want a professional negotiator on your side as well. If your case goes to court, an experienced wrongful death lawyer can deal with all the procedural issues and evidentiary rules involved in filing pleadings, obtaining evidence through discovery, and appearing in court.
If you decide to represent yourself, a wrongful death attorney can advise and coach you through the process. He or she can help you evaluate your case, prepare documents, find evidence, and go through settlement negotiations. If you find the case is more than you can handle, your attorney coach can take over the case and represent you.
Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.
For more information about wrongful death, see Overview: What is Wrongful Death?
For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.
