The Elements of Wrongful Death

The Elements of Wrongful DeathThe sudden passing of a loved one because of another person’s carelessness, wrongful actions, or negligence can be a horrifying ordeal for any person or family. They not only lose an integral person in their lives, but are often left without a source of income, companionship, and other support.

In many cases, family members of a wrongful death victim may have no idea what their rights are or what legal action they can pursue. In this blog post, we address these points in discussing wrongful death claims.

What Is Wrongful Death?

All states have their own laws defining what constitutes a wrongful death claim. Generally speaking, a wrongful death claim arises when an entity or individual causes another person’s death by some kind of wrongful act, including negligence or breach of a contract. Simply put, a wrongful death results when an individual is killed due to the legal fault of another party.

Some of the more common causes of wrongful death include:

  • Motor vehicle accidents
  • Pedestrian accidents
  • Slip and fall accidents
  • Workplace injuries
  • Animal bites
  • Swimming pool accidents
  • Boating accidents
  • Nursing home abuse
  • Birth injuries
  • Hazardous conditions
  • Defective products
  • Intentional actions, such as assault
  • Medical malpractice

The Elements of Wrongful Death Claim

To bring a successful wrongful death claim, you must establish that:

  • An individual died
  • The death was a result of another person’s actions
  • The actions could have entitled the deceased to maintain an action and to recover damages, had they not died
  • There were survivors of the deceased harmed because of the death
  • These survivors suffered monetary damages and/or other impacts as a result of the victim’s death

If you lost a family member because of another’s wrongful actions, you should reach out to an experienced wrongful death lawyer as soon as possible. Such lawyers can consult with you to determine whether you can establish the elements of a wrongful death claim.

Who May Pursue a Wrongful Death Claim?

Generally, the administrator of the deceased’s estate must bring a wrongful death lawsuit. This individual is typically determined by the deceased’s will or any other similar estate plan. If the deceased passed away without a will or any other estate plan, a court can appoint their personal representative.

Once the personal representative is designated, they may file a wrongful death lawsuit on behalf of the decedent’s estate and their surviving family members. However, only certain family members can qualify as “surviving family members.”

These may vary depending on the state you are in, but generally include:

  • The decedent’s spouse
  • The decedent’s children
  • The decedent’s parents
  • The decedent’s blood relatives who were at least partially dependent on the decedent for support, including adoptive siblings

If you believe that you have a potential wrongful death claim, you should work with an experienced wrongful death attorney. Such a lawyer can help you figure out if you qualify as a surviving family member and go over the legal options you can pursue.

The Statute of Limitations for Filing a Wrongful Death Claim

A statute of limitations is a law that dictates the maximum amount of time you have to file a lawsuit following a given kind of claim. If you do not bring this lawsuit within that allotted time, you can be barred from pursuing compensation for your sustained injuries and harm.

The statute of limitations for wrongful death varies from state to state and may give anywhere from two to four years after the individual’s death to take action, with certain exceptions.

However, while “years” may sound like a lot of time, you should not delay in starting the process. There are many disadvantages to waiting. For one, the longer you wait to proceed with legal action, the higher the likelihood that critical evidence to support your claim may disappear or witnesses to the death-causing incident may become unavailable. Furthermore, your attorney needs time to collect at least some of the evidence to support your claim before filing, and you may want to try to resolve a claim with a responsible party’s insurer before filing a lawsuit. For these reasons, it is a good idea to reach out to a skilled wrongful death lawyer as soon after your loved one’s death as possible. These attorneys can determine not only how much time you have to file your claim but can also ensure that all filings and procedures and correctly and timely done.

Damages Recoverable In Wrongful Death Action

Generally, the decedent’s survivors may be entitled to certain damages, the term “damages” referring to legal compensation.

In a wrongful death action, damages may include:

  • Loss of income, benefits, and other earnings from the time of the death-causing incident, including estimated future amounts
  • Loss of the deceased’s services and support
  • Loss of the deceased’s protection and companionship
  • Mental pain and suffering
  • Loss of the deceased’s companionship, guidance, and instruction
  • Funeral expenses paid by the surviving family members
  • Medical fees paid by the surviving family members
  • Medical bills and funeral expenses that were paid directly by the estate

Factors Affecting the Damages You Can Collect From a Wrongful Death Claim

The Elements of Wrongful DeathWhile no attorney can tell you exactly how much money you will be able to collect following your loved one’s passing, many factors will contribute to the amount, including:

  • The amount of the decedent’s likely future income, had they survived
  • The life expectancy of the deceased
  • The decedent’s relationship with the survivors
  • The replacement value of the decedent’s services to the survivor
  • The amount of insurance coverage a given defendant has available to resolve the wrongful death suit
  • The amount of time the surviving children can be considered minors

Since any one of these factors can significantly affect the amount of money you can recover in a wrongful death action, it is in your best interest to speak with a wrongful death lawyer about your case. These attorneys can go over all of these factors, determine which ones may impact your claim, and prepare the strongest case to fight for maximum compensation.

How Do I Know If I Have a Valid Wrongful Death Claim?

The best way to determine whether or not you have a possible legal claim is to speak with an experienced wrongful death lawyer as soon after your loved one’s passing as possible. While you may be in the process of grieving, it is still important to see an attorney as soon as possible, as it will help the attorney to determine whether you have a claim. If you do have a viable claim, the attorney can take over much of the burden, beginning an investigation into the accident that took your loved one’s life to figure out what happened and who was at fault and help move your case forward while you and your family focus on moving on with your lives.

Reaching out to a wrongful death lawyer does not mean you have to proceed with any action, and in most cases, an initial case consultation will not cost you anything. Instead, these attorneys will use an initial consultation to help you understand your legal options and explain how they can help. However, if you decide to pursue a wrongful death claim, working with a wrongful death attorney can help ensure that you timely and correctly handle your case to preserve your right to and maximize your compensation.

Punitive Damages and Wrongful Death Claims

In general, wrongful death claims are intended to compensate surviving family members for the loss of their loved ones. These damages are usually known as compensatory damages, which are meant to compensate the surviving family members for expenses and losses related to the decedent’s death.

By comparison, punitive damages are intended to punish the defendant for especially egregious actions and to deter them and others from committing such acts again in the future. Punitive damages are awarded in addition to compensatory damages, and courts typically only grant them if the plaintiff’s attorney shows that the defendant’s acts were grossly negligent, reckless, or intentional. As a result, punitive damages are not frequently awarded.

Difference Between a Survival Action and a Wrongful Death Claim

A survival action is based on the legal claims brought by the individual who died. If they had lived, there may have been a potential claim for medical expenses, pain and suffering, and other damages that resulted from the incident. These types of claims are allowed to survive the decedent’s death and are brought against the defendant by an individual appointed by the probate court to act as the deceased’s personal representative.

By comparison, a wrongful death lawsuit is based on the legal claims of the surviving family members. The family members have their own legal claims for the loss of income, wages, companionship, and other losses they endured because of the defendant’s wrongful actions.

In some cases, there may be a combination of survival action and a wrongful death claim. To ensure you do not miss out on making a valid claim of any kind, and the chance to recover additional compensation you need and deserve, you should work with a skilled wrongful death lawyer who can help you determine all your legal options.

Difference Between a Criminal Homicide Case and a Wrongful Death Claim

A wrongful death claim is a civil claim, like any other personal injury lawsuit. In these types of cases, the wrongful party’s liability is expressed in terms of financial compensation and, if the suit is successful, the court orders the defendant to pay compensation to the deceased’s survivors. This is different than a criminal homicide charge. A criminal homicide action is brought by the state and often results in prison time or fines or penalties paid to the state. A person may simultaneously be sued for wrongful death and charged for criminal homicide.

Another important difference between a wrongful death claim and a criminal homicide charge involves proving culpability. In a criminal homicide case, the accused’s guilt must be proven beyond a reasonable doubt, while, in a wrongful death action, the defendant’s liability generally must be shown by a preponderance of the evidence. This preponderance of evidence standard is a lower standard than ‘beyond a reasonable doubt.’ Thus, while the state might fail to convict on a criminal homicide charge, that does not mean a plaintiff cannot prevail in their wrongful death action for the same incident.

Get the Legal Help You Need After a Loved One’s Wrongful Death—Contact an Experienced Wrongful Death Attorney Today

Losing a family member is a traumatizing and devastating time for anyone, especially when the death is due to the wrongful actions of another individual. But you do not have to go through this challenging ordeal on your own.

By retaining a wrongful death lawyer to help take on your case, they can provide you the legal assistance you need, including:

  • Going over your potential wrongful death claim, evaluating the challenges of the case, and discussing your legal options
  • Answering all of your questions and concerns, walking you through the claim process, and making sure you understand the process
  • Investigating your wrongful death case and securing evidence needed to prove what happened and who was at fault
  • Personal Injury Lawyer Orlando, FL - Michael T. Gibson
    Attorney, Michael T. Gibson

    Fighting to hold all those liable for your family member’s death accountable for the losses you endured

  • Handling negotiations with the insurance company to secure a fair settlement
  • Bringing in necessary experts, such as causation and liability experts, to substantiate your claim
  • Taking your case to trial, if settlement is not possible, and pursuing the maximum damages you and your family deserve.

If you lost a loved one, do not wait any longer to seek legal help. Contact an experienced wrongful death attorney today for a free case evaluation, and fight for the justice and compensation your family deserves.

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