“Wrongful death” is a legal term used to describe a death caused by the fault of another. When someone dies, it usually affects those other than the deceased. Others, most notably relatives of the deceased, may have depended on the deceased for both emotional and financial support. The vast majority of states have enacted statutes that allow relatives of someone who dies as the result of a wrongful act to file a lawsuit. Examples of wrongful conduct that may lead to a fatality include:
- Driving carelessly or under the influence of drugs and alcohol
- Manufacturing, marketing or selling a defective product
- Failing to diagnose a fatal disease such as cancer or a heart attack
- Building an unstable structure
- A criminal act such as deliberate murder
How are criminal acts different from other (civil) kinds of wrongful death?
Criminal cases are brought by the state and require a standard of proof “beyond reasonable doubt” in order to prevail. The defendant can be punished with jail time as well as monetarily. Civil wrongful death suits are brought by individuals and the standard of proof is by a “preponderance of the evidence.” In civil wrongful death suits, monetary damages for losses by the plaintiff(s) are sought.
Who can sue for wrongful death?
It depends on the state. Some states only allow the spouse and children of a decedent to file a lawsuit. Others allow grandparents and other relatives to do so.
How is the amount of damages determined?
Survivors can sue for medical bills for the decedent's injuries prior to dying and for funeral costs. But survivors continue to suffer as a result of the decedent's absence. And while technically in many states survivors cannot recover damages for emotional distress in wrongful death cases, they may receive compensation for such things as loss of counsel, aid, guidance, advice, assistance, comfort and protection. Other items that may be considered when determining damages include:
- The decedent's occupation
- The decedent's past and future earning capacity
- The decedent's past contributions
- The decedent's life expectancy, health and habits at the time of his or her death
Can punitive damages be recovered in a wrongful death action?
Only a few states allow punitive damages to be recovered in a wrongful death suit, and then only if the conduct of the defendant warrants it.
How are damages divided among multiple heirs or plaintiffs?
This also varies by state. If the relatives cannot agree, some states allow the court to apportion damages. In some cases, plaintiffs must share damages with non-plaintiff relatives.
Can the heirs hire separate attorneys?
Yes, especially in cases in which the heirs are hostile to each other. The heirs should be aware, however, that their hostility toward each other will end up costing them, since it could drive down the value of the case.
What are “survival statutes?”
These statutes allow survivors of the deceased or the estate of the deceased to continue a suit that was brought by the decedent before passing away.
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