Many have faced the life-altering emotional and financial consequences of losing a loved one because of another’s negligence or misconduct. However, such a tremendous loss, although irreparable in many respects, can be compensated in part through damages awards.
In legal terms, wrongful death refers to a fatality that occurs because of the negligence or misdeeds of another person, corporation or entity. Part of the “personal injury” tort family, wrongful death holds an individual, group or corporation (defendant) accountable for causing injury to another person (plaintiff). The primary goal of a personal injury tort is to provide relief (damages) to the plaintiff and to deter the defendant from inflicting further harm to others. In a wrongful death action, consideration is given to the earnings the deceased would have provided to their family had they lived, and damages are awarded to survivors based on this monetary loss.
State laws vary as to who may pursue a wrongful death claim. Generally, it is the immediate family members (spouses, children and parents); however, some states allow grandparents, legal dependents or members of the extended family to file suit. The amount of damages awarded will depend on the plaintiff’s relationship to the deceased, while the compensation for damages may include compensation for the following:
- Reimbursement for all medical expenses incurred as a result of the negligence.
- Reimbursement for the loss of any future income.
- Reimbursement for property damage, if applicable.
- Reimbursement for any future services normally provided to you by the person who has died.
- Reimbursement for loss of consortium, meaning a spouse’s right to the companionship, help and affection from the person who has died.
- Reimbursement for any punitive damages if the negligence was found to be criminal.
Wrongful death suits may involve any of the types of lawsuits for which a person can sue for personal injuries including motor vehicular accidents (aviation, automobile, ATV, motorcycle, or railroad), defective products, medical malpractice, pharmaceutical liability, construction accidents, assault and battery and a number of other situations. The common element in most tort actions is negligence, which is characterized by inattention, thoughtlessness, inadvertence, and mistakes. Negligence must be proven in wrongful death cases. The critical elements of negligence including 1) a duty owed by defendant to the injured party, 2) the defendant failed in that duty, and 3) the injury was caused by the defendants’ breach of duty and that damages resulted from the injury.
In addition to establishing negligence, the joint life expectancy of the deceased and the survivor or beneficiary must be presented (to establish the loss of future earnings), and the relationship of the survivor and deceased must also be shown. Finally, effective presentation of the non-economical or emotional loss suffered by the survivor is critical to a fair award of damages.