Wrongful death has not always been a valid basis for a legal claim. For many years any claim for harm resulting from the death of a person was considered to have died with that person. Over the years, though, that thinking has changed and now every state has a wrongful death statute.
A wrongful death lawsuit alleges that the deceased died as a result of negligence (or strict liability) on the part of the defendant and that the certain surviving persons (usually dependents or other close relatives) are entitled to monetary damages as a result of the defendant’s conduct.
This is different from the typical negligence lawsuit, which is filed for damages by the injured person. A wrongful death lawsuit is filed by one of the harmed dependents or relatives. Generally, a wrongful death lawsuit has four basic elements:
- The death was caused in whole or in part by the defendant.
- The defendant was negligent or strictly liable for the victim’s death.
- The victim had a surviving spouse, children, dependents, or other beneficiaries.
- The victim’s death resulted in monetary damages.
While proof of negligence as the cause of the victim’s death is the normal legal requirement for a successful suit, the concept of “strict liability” applies in some situations. Under this concept, some persons are deemed liable for the damages caused by the death of a victim regardless of any fault on their part. Entities that engage in certain hazardous activities, such as demolition blasting or certain circus rides, for example, are held strictly liable for any harm caused by their activities – even if they have taken every safety precaution imaginable. Some product manufacturers are held to a strict liability standard for their products.
Those who can file a wrongful death lawsuit
Obviously, the deceased victim cannot file a claim, although sometimes the victim does initiate a lawsuit on his or her own behalf while still alive. If that has happened, some of the damages may be transferred to the victim’s relatives when they file a separate wrongful death suit on their own behalf.
State laws vary, but, in general, the spouse, children and parents of the victim can file a wrongful death lawsuit Children under 18 may need a guardian to represent their interests in court. Some states also extend the potential group of litigants to grandparents, legal dependents or members of the extended family.
When must the lawsuit be filed?
The time limit for filing the lawsuit varies from state to state. A wrongful death attorney usually must file a lawsuit between 1 to 3 years after the victim’s death. A claim against a government agency, however, may have a shorter filing limit. It is best to contact an attorney as soon as possible to determine the statutes of limitations for you state. Any claim filed outside the time period may be denied.
Usually the time period begins when the victim dies. However, if the family does not discover until sometime later that the death was the result of negligence, by a doctor, for example, some states may allow the time to begin on the date the family first became aware of the negligence.
What type of damages may be claimed?
The long list of potential damages that may be recovered in a wrongful death suit include the following, depending on the state and the situation:
- Immediate expenses (medical and funeral);
- Loss of victim’s anticipated earnings;
- Loss of victim’s benefits (retirement, medical);
- Loss of inheritance;
- Pain and suffering (mental and emotional anguish) to the survivors;
- Loss of care, protection, companionship;
- Punitive damages (designed to punish the wrongdoer to deter them and others from future negligent acts).
The survivors also may be able to collect interest in some states.
10-09-2008 until 11-09-2030
