Has your family suffered the tragic and unnecessary death of a family member caused by someone else’s negligence or recklessness?
Any of the causes of personal injury – car accidents, fires, defective products – can also cause death. When that happens, the resulting lawsuit is called a “wrongful death” action.
Our extensive personal injury practice includes handling wrongful death cases. We have years of experience investigating accidental and intentional deaths, negotiating with insurance companies, and taking lawsuits to trial. We have a very high success rate.
We understand that pursuing a wrongful death action will not bring back your loved one. However, it can help you and your children to have increased financial security in the years to come. Please call us at 972-529-5554 for a free consultation. You pay no fee unless you recover.
Wrongful Death - An Overview
A "wrongful death" occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. An action for wrongful death belongs to the decedent's immediate family members (often called "distributees"). The most common distributees are surviving spouses and children, and sometimes parents. A suit for wrongful death may only be brought by the personal representative of the decedent's estate. Every state has a civil "wrongful death statute," or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent's death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will.
Elements
In order to bring a successful wrongful death cause of action, the following elements must be present:
- The death of a human being;
- Caused by another's negligence;
- The survival of family members who are suffering monetary injury as a result of the death, and;
- The appointment of a personal representative for the decedent's estate.
A wrongful death claim may arise out of a number of circumstances, such as in the following situations:
- Medical malpractice that results in decedent's death;
- Automobile or airplane accident;
- Occupational exposure to hazardous conditions or substances;
- Death during a supervised activity.
Damages
Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries to the persons for whose benefit the action is brought, resulting from the decedent's death. If the distributees paid or are responsible for the funeral expenses or medical care incidental to the injury that caused the decedent's death, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent's death.
Determining Pecuniary Loss
When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the distributees. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss.
Usually, the main consideration in awarding damages is the circumstances of the decedent. For example, when an adult wage earner with dependants dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent's earnings at the time of death, the last known earnings if unemployed, and potential future earnings.
Adjustments in the Jury's Award
In a wrongful death action, the jury determines the size of the damages award after hearing the evidence. The jury's determination is not the final word, however, and the size of the award may be adjusted upward or downward by the court for a variety of reasons. If the decedent earned considerable income and gave it to his family, that sum will be recoverable. However, if the decedent routinely squandered his income, this might reduce the family's recovery. Similarly, the courts will reduce a jury's award if the decedent had poor earnings, even though he was young, had great potential, and supported several children. At the same time, a jury may award lost earnings despite the decedent's having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent's average earnings while employed. If the plaintiff fails to present such evidence of the decedent's average earnings, the court may set aside the jury's damage award and order a new trial.
Using Expert Testimony to Determine Pecuniary Loss
Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife's services, experts may aid the jury in this evaluation.
Punitive Damages
Punitive damages are damages awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible. An attorney will be able to advise you as to whether your state allows punitive damages.
Survival Actions for Personal Injury
In addition to damages for wrongful death, the distributees may be able to recover damages for personal injury to the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury. The decedent's personal representative can bring such an action together with the wrongful death action, for the benefit of the decedent's estate.
In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including: 1) the degree of consciousness; 2) severity of pain; and, 3) apprehension of impending death, along with the duration of such suffering.
Limitation Periods
As with any personal injury claim, there is a time component (called the "statute of limitations") governing when a wrongful death action must be filed. The limitations period in a wrongful death action has been held to commence when the party bringing suit discovers, or should reasonably have discovered, the connection between the decedent's death and the cause. In many states, the appointment of a personal representative will start the limitations period running. When the decedent's death is a result of a disease caused by a toxic or hazardous substance, some states have different time requirements. Anyone who believes he or she might have a wrongful death claim should contact an attorney to determine how much is left to file suit.
Call us Now!
972-529-5554
or use the form below.
The use of the Internet for communications with the firm will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent.
Back to top
The Physician-Patient Privilege in Wrongful Death Actions
In wrongful death actions, the issue of the physician-patient privilege, which protects the privacy of a decedent's medical records, often arises. The general rule is that unless the patient/decedent waives the privilege, a physician is not allowed to disclose any information acquired in attending to the patient in a professional capacity.
Back to top
Wrongful Deaths Involving Children and the Elderly
Setting a price on human life is not an easy task, but it is one that courts and juries are required to do in wrongful death actions. Because the primary measure of damages in a wrongful death action is pecuniary (financial) loss, the death of a child brings up difficulties in arriving at an adequate damage award. When an adult dies, the pecuniary loss to the family is readily quantifiable. For example, when a parent dies, a child may seek damages for loss of the parent's care, income, nurturing, and guidance. When a child dies, the parents' recovery is limited to their pecuniary loss, which is usually quite small.
Back to top
Statutes of Limitations & the Discovery Rule
All civil actions, including wrongful death actions, have time limits as to when they must be filed. These time limits, or "limitations periods," are contained in laws called "statutes of limitations." If you do not file your action before the expiration of the applicable limitations period, in most cases, you permanently waive your rights to recover damages in a cause of action.
Back to top
Settlements and Damages in Wrongful Death Cases
Wrongful death actions can be very complicated, as the wrongful acts of several parties may have contributed to an individual's death. Pre-trial, out-of-court settlements are common in wrongful death cases, because most defendants want to avoid the publicity of having caused a death. When such out-of-court settlements occur, a reduction of the wrongful death damages award issued by a judge or jury will also occur. Thus, if a plaintiff settles a claim against one defendant, the plaintiff's recovery from any other defendant is thereby reduced. Additionally, the plaintiff's release of one defendant frees that defendant from liability to contribute to any other defendant, and waives his/her claim for any contribution from co-defendants. In other words, the released defendant is out of the action, and the remaining defendant(s) will pay no more than their comparative share of the culpable conduct as found by the jury.
Back to top
Wrongful Death Resource Links
Back to top
For more information about wrongful death, please click here.
