Losing a loved one is devastating. In an instant, life as you know it — for you and for family members alike — can be changed forever. Although monetary awards will never get close to reversing the pain of your loss, a wrongful death lawsuit may help cover the financial burdens following the horrible event.
What Is a Wrongful Death Lawsuit?
A wrongful death lawsuit is a civil lawsuit that alleges that the deceased was killed as a result of negligence, a wrongful action of the defendant, or neglect, and the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant’s conduct.
Under most states’ wrongful death laws, a wrongful death lawsuit may be brought by:
- The spouse of the deceased;
- The heir or heirs of the deceased;
- The decedent’s designated beneficiary; or
- The parent, or parents, of the deceased — if the decedent is unmarried and without descendants or a designated beneficiary.
Nevertheless, no matter who brings the action, such persons who are heirs of the deceased must share the judgment obtained.
Time Limits: Wrongful Death Statute of Limitations
In civil law there are deadlines in which a plaintiff must file a claim or be barred from doing so. These time limits are called statutes of limitations.
A plaintiff must suffer some damage before the statute of limitations will begin to run. And, as a general rule, a cause of action for personal injuries will accrue (arise) on the date that a party knows or should have known of the injury and its cause.
Wrongful death actions generally must be filed within two years after death. Barring certain circumstances, the wrongful death statute of limitations in Arizona, California and Colorado is two years.
What Is Recoverable: Wrongful Death Damages
Generally, a jury may award economic (financial) and non-economic (pain and suffering, loss of consortium) damages in a wrongful death case. Examples of wrongful death damages that may be awarded include:
- The cost of your loved one’s medical care prior to passing.
- The value of your loved one’s pain and suffering.
- The value of the deceased’s financial contribution to the family, including loss of benefits and inheritance.
- The cost of funeral and burial services.
- Emotional distress.
- Loss of Society: a child could recover damages based on the value of a deceased parent’s companionship, advice, guidance, love and affection.
- Loss of Consortium: a spouse may recover damages based on the benefits that would have been received from the continued life of the decedent.
In some states, a jury may also award punitive damages. Punitive damages are awarded in cases of malicious wrongdoing to punish the wrongdoer and deter others from behaving similarly. However, the states which allow punitive damages have usually capped the amount of punitive damages that may be awarded, or have limited the types of cases where punitive damages may be awarded.
Establishing Fault in a Wrongful Death Lawsuit
In order to establish fault of the other party in a wrongful death lawsuit you must prove the party caused the underlying tort (the wrongful act). In most wrongful death cases the underlying tort is negligence.
Negligence is the failure to do something a reasonably careful person would do; or doing something a reasonably careful person would not do. In order to prove negligence the plaintiff must prove:
(1) The defendant owed a duty of care;
(2) That the defendant breached that duty; and
(3) That the breach caused the plaintiff’s harm.
Often, the death of a loved one may be the worst time in your life. It is important to know that you have rights, and the ability to pursue those rights through a wrongful death lawsuit.