Wrongful death occurs when a person or entity fails to fulfill a legal duty and causes a death to occur. When this happens, a wrongful death lawsuit can be filed by certain surviving family members or by a personal representative from the estate of the deceased.

In a wrongful death lawsuit, the plaintiff must prove certain things in order to recover compensation. Plaintiffs must prove:

  • A person or entity behaved negligently or committed an intentional wrongful act
  • Their actions were the direct cause of a death
  • There are damages associated with the death

If these elements are proved, surviving family members or the estate of the deceased could be awarded compensation by a court or could be offered a settlement by the party who caused the death to occur or their insurer.

Wrongful Death vs. Personal Injury Lawsuits

Wrongful death claims are similar to personal injury lawsuits in many ways–but they occur when an accident does not just cause injuries but instead results in a death.

In a personal injury claim, accident victims can sue or negotiate a settlement on their own behalf to gain compensation from those who harmed them. Personal injury victims must show the defendant intentionally or negligently caused them harm. If they do, they can recover compensation for medical bills, lost wages, pain and suffering and emotional distress.

In a wrongful death claim, the family or personal representative of the deceased pursues a case against those responsible for causing the fatality. They can file a lawsuit or negotiate a settlement and can recover compensation for medical bills and pain and suffering the deceased experienced prior to death. They can also receive compensation for funeral bills and burial costs, as well as for loss of the deceased person’s future income and companionship.

Is Wrongful Death Civil or Criminal?

Wrongful death claims are civil lawsuits, filed by a person or family against a person, business or company. The purpose is to obtain financial compensation for the loss of the loved one and the loss of their income.

In many cases, when a death occurs, criminal charges such as homicide, murder or manslaughter are also appropriate. Criminal cases are brought by the state for a violation of laws. Potential penalties include jail time.

The standard of proof is different in criminal cases versus a wrongful death case. A prosecutor must prove the elements of a crime beyond a reasonable doubt. But in a civil case like a wrongful death case, the plaintiff must prove the case by a preponderance of the evidence. This is a lower standard and explains why O.J. Simpson was found not guilty of the crime of killing his wife and her friend but was held liable in a wrongful death case.

Types of Wrongful Death Cases

Wrongful death cases can occur in any situation where a death is caused by someone’s negligence or by intentional wrongdoing. Here are some common examples.

Intentional

A wrongful death case could be pursued after an intentional act such as murder and assault or battery that resulted in death.

Negligence

Wrongful death cases can also be pursued against a defendant who negligently caused harm. When a plaintiff pursues a claim based on negligence, the plaintiff must show the defendant acted with a level of care below what an average reasonable person would have exhibited in the same situation. Examples of wrongful death cases arising out of negligence include:

Malpractice

If a doctor or care provider behaves below their required professional standard of care, this can also result in a wrongful death lawsuit. In this case, the plaintiffs would need to prove their failure was the direct result of the fatality.

These claims are different from simple negligence cases. Instead of proving a breach of a duty of care, a plaintiff must show the defendant acted with a level of care below what an average reasonable person would have exhibited under the same situation. When a plaintiff pursues a malpractice claim, they must show the defendant’s level of care fell below the professional standard of care.

Who Can Sue for Wrongful Death

Since a person who is killed cannot sue on their own behalf, it is important to understand who can pursue a wrongful death lawsuit. Typically, those who can make this type of claim include:

  • Surviving spouses
  • Parents or children
  • Other immediate family members
  • A personal representative of the deceased person’s estate

The specific details for who can make a claim are determined by the wrongful death statute in the state where the fatal incident took place.

Who Can Be Sued for Wrongful Death

Almost any individual or entity can be sued if they cause a wrongful death. Common examples of people who can be sued include:

  • Drivers at fault for collisions
  • Companies who design or manufacture defective products
  • Companies or individuals who provide alcohol to impaired drivers who cause fatal accidents
  • Companies who fail to warn of the risks of their products
  • Designers or builders of faulty roadways
  • Government agencies who do not provide warnings about dangerous road hazards
  • Medical professionals who committed malpractice
  • Employers of those who caused the death while performing work duties (such as a clinic who employs a doctor who commits malpractice or a company who employs a delivery driver who causes a fatal accident)

An experienced attorney can provide insight into all of the potential defendants you could pursue a claim against in a wrongful death lawsuit.

Immunity from Wrongful Death Lawsuit

Although most individuals and companies can be sued if they cause or contribute to a wrongful death, there are exceptions. For example, some government employees and agencies can be immune from liability for actions within the scope of their official duty.

Employers may also typically not be sued by an employee for a wrongful death that occurs on-the-job. Instead, a claim must be made within the workers’ compensation system in most circumstances.

How to File a Wrongful Death Lawsuit

If you believe a loved one died due to negligence or an intentional act, speak with an attorney about filing a wrongful death lawsuit as soon as possible to make sure you can pursue your claim in a timely manner.

You file a wrongful death lawsuit in the court with jurisdiction over the case. Often, this means pursuing a claim where the death occurred. You have the option of negotiating a settlement with those responsible for the death. Most often, you will be negotiating with the insurance company representing the individual or entity that was directly responsible for the harm.

If you cannot reach a satisfactory settlement agreement, you need to pursue your case in court. If you do agree to settle, you receive a payment but must give up any future claims.

How Long Does a Wrongful Death Settlement Take?

The length of time it takes to settle a wrongful death case varies. Some may settle very quickly, within months. Others may not settle for several years. It takes time to thoroughly investigate the case and gather evidence. As a plaintiff, you want to be sure you fully understand what happened and who was to blame before accepting a settlement.

Wrongful death settlements involve negotiation, so the insurance company may offer you one sum, but your lawyer may believe you are owed more and it takes time to discuss and work through this to come to agreement.

Statute of Limitations

The statute of limitations sets a time limit for when a wrongful death lawsuit must be filed. This varies by state but in most cases, it is two years from the date of death.

If the death was caused by medical malpractice, the time limit may not begin to run until you found out about the malpractice that caused the death or should have found out about it. For example, if you did not know until you got the autopsy report two months after the death that malpractice caused the death, the clock won’t start running until that date.

If you delay filing until after the statute of limitations has passed, your claim is time barred and cannot go forward.

How to Win a Wrongful Death Lawsuit

To win your wrongful death case you need to prove the following elements of negligence:

  • The defendant owed the deceased a duty of care
  • The defendant breached that duty
  • The breach of duty caused the death
  • You suffered damages due to the death

To prove all of these elements, you must provide evidence and witness testimony to convince the judge or jury that a wrongful death occurred and that you experienced damages.

Make sure you file your case before the statute of limitations runs out and, for best results, work with an attorney who is experienced in this type of case.

Favaloro Law has over 40 years of experience in this area of the law, and would welcome the chance to talk to you about any potential claim.