<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by scbuckeye:
April 4, 2000. Have given statements to an insurance adjuster from my insurance company. Drivers insurance company's adjuster came out, no statements, just pictures of scene. Other than that, no further contact.<HR></BLOCKQUOTE>
My response:
Okay, so far, so good. Don't make any statements whatsoever until you've seen an attorney, and then, let him / her make the statements. If required, make any statements only with your attorney present.
Your claim will be for the "wrongful death" of your daughter, based upon the fact that there was sufficient time and distance to avoid the impact; that, but for the excessive speed, and failure to brake, the incident could have been avoided.
One of their defenses will be that your daughter "darted out" and, because of that, the driver is not liable for damages. There are other defenses, but to go into them here would be fruitless. You'll discuss these, and other, aspects with your attorney.
Your claim, however, will have "settlement value" for the actual loss, and "pecuniary" damages.
Your other daughter may, as well, have a cause of action. If she saw the incident occur, while she was also within the "zone of danger," she may have a claim for her emotional distress in the capacity of a "foreseeable" plaintiff "Bystander" ("percipient witness"). Bystander claims are usually secondary to a damages action brought by the physically injured victim (or the victim's family where the primary injury results in death). These cases "all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no pre-existing relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general."
There is a three-prong test: Whether a duty of due care was owed to this type of mental distress plaintiff is tested objectively by a three-part test: i.e., it must be shown that (i) plaintiff was "closely related" to the injured victim; (ii) plaintiff was present at the scene of the injury-producing event when it occurred and was then aware the event caused the victim injury; and (iii) as a result, plaintiff suffered "serious" emotional distress.
Please see an attorney today, to make the claims for yourself, your husband, and your surviving daughter.
You may want to seek "grief counseling" for yourself, and all of your family members; especially for your other daughter. Take care of yourself, and I sincerely hope that all turns out well.
IAAL
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