What is Wrongful Death?
A wrongful death occurs when a person’s death is the result of the negligence or the wrongful conduct of an individual or company. Liability from wrongful death may arise from an automobile accident, work-related injury, or criminal activity. Prior common law did not allow claims because once the victim was dead the claim was also considered dead. All U.S. states now recognize wrongful death lawsuits. The intent of an action is to allow the decedent’s relatives to recover financial damages as compensation for the death.
Who May Bring a Wrongful Death Action?
Each state defines the eligible family members allowed to bring a wrongful death action. Typically the estate’s personal representative or the decedent’s immediate family, such as the surviving spouse, children, or parents, may sue. In some states, claims by grandparents are allowed.
Standard of Proof
Most states require proof of four elements in order to bring a lawsuit:
1) The decedent’s death was caused by the defendant’s conduct;
2) The defendant was negligent or engaged in intentional wrongful conduct;
3) The decedent’s immediate family members are alive; and
4) The decedent’s family has suffered monetary damages because of the wrongful death.
Statute of Limitations
Each state limits the amount of time that a claimant has to file a wrongful death action. In some states, the statute of limitations begins to run when the complainant either discovers or should have discovered the cause of death. In other states, the statute of limitations begins when the death occurs.
Damages
In general, most states do not allow punitive damage awards for wrongful death. A plaintiff, however, may recover for the pecuniary injury resulting from the death of the decedent. This is a financial damage award that does not consider the decedent’s pain and suffering. Pecuniary injuries include recovery for loss of support, loss of consortium, and loss of anticipated earnings.
Determining the Damage Award
Courts typically consider the age, earning capacity, health, and life expectancy of the decedent when determining the damage award. The measurement of the financial value of a person’s life is dependent on each individual circumstance. For example, the calculation for a homemaker that did not work outside of the home will involve considering the value of the household work as well as the loss of emotional support provided to the spouse and children. On the other hand, an employed decedent’s value will include the calculation of loss of income as well as the loss of emotional support. Oftentimes, this award determination relies on the expert testimony of economists.
Children and the Elderly
Although recovery for children and the elderly will typically amount to a smaller award than recovery for a healthy adult, courts will allow these wrongful death claims. Because the premise of wrongful death actions rely on determining the value of the decedent, actions to recover for the death of a child or elderly person will mostly likely result in a more modest award.
Survival Actions
While a wrongful death action allows recovery for the financial value of the decedent, many states have statutes known as “survival acts.” These acts allow property and personal injury tort claims to survive beyond a decedent’s death. On behalf of the decedent, damages can be recovered for the injury and for the decedent’s pain and suffering. A survivor may not recover for injuries like defamation and malicious prosecution; these types of personal torts usually expire with the decedent.
Defenses
A defendant in a wrongful death action may have the damage award reduced under certain circumstances. A defendant may use the wrongful conduct of the deceased or a beneficiary to exclude or reduce damages. In the case of a decedent, damages may be limited by what the decedent could have recovered in the action if alive. For example, contributory negligence by the decedent will reduce the damage award in a comparative negligence state. On the other hand, some defenses against a potential beneficiary may result in the exclusion of the beneficiary’s award in the total damage judgment.
By: Chris N. Jackson
About the Author:
Who May Bring a Wrongful Death Action?
Each state defines the eligible family members allowed to bring a wrongful death action. Typically the estate’s personal representative or the decedent’s immediate family, such as the surviving spouse, children, or parents, may sue. In some states, claims by grandparents are allowed.
Standard of Proof
Most states require proof of four elements in order to bring a lawsuit:
1) The decedent’s death was caused by the defendant’s conduct;
2) The defendant was negligent or engaged in intentional wrongful conduct;
3) The decedent’s immediate family members are alive; and
4) The decedent’s family has suffered monetary damages because of the wrongful death.
Statute of Limitations
Each state limits the amount of time that a claimant has to file a wrongful death action. In some states, the statute of limitations begins to run when the complainant either discovers or should have discovered the cause of death. In other states, the statute of limitations begins when the death occurs.
Damages
In general, most states do not allow punitive damage awards for wrongful death. A plaintiff, however, may recover for the pecuniary injury resulting from the death of the decedent. This is a financial damage award that does not consider the decedent’s pain and suffering. Pecuniary injuries include recovery for loss of support, loss of consortium, and loss of anticipated earnings.
Determining the Damage Award
Courts typically consider the age, earning capacity, health, and life expectancy of the decedent when determining the damage award. The measurement of the financial value of a person’s life is dependent on each individual circumstance. For example, the calculation for a homemaker that did not work outside of the home will involve considering the value of the household work as well as the loss of emotional support provided to the spouse and children. On the other hand, an employed decedent’s value will include the calculation of loss of income as well as the loss of emotional support. Oftentimes, this award determination relies on the expert testimony of economists.
Children and the Elderly
Although recovery for children and the elderly will typically amount to a smaller award than recovery for a healthy adult, courts will allow these wrongful death claims. Because the premise of wrongful death actions rely on determining the value of the decedent, actions to recover for the death of a child or elderly person will mostly likely result in a more modest award.
Survival Actions
While a wrongful death action allows recovery for the financial value of the decedent, many states have statutes known as “survival acts.” These acts allow property and personal injury tort claims to survive beyond a decedent’s death. On behalf of the decedent, damages can be recovered for the injury and for the decedent’s pain and suffering. A survivor may not recover for injuries like defamation and malicious prosecution; these types of personal torts usually expire with the decedent.
Defenses
A defendant in a wrongful death action may have the damage award reduced under certain circumstances. A defendant may use the wrongful conduct of the deceased or a beneficiary to exclude or reduce damages. In the case of a decedent, damages may be limited by what the decedent could have recovered in the action if alive. For example, contributory negligence by the decedent will reduce the damage award in a comparative negligence state. On the other hand, some defenses against a potential beneficiary may result in the exclusion of the beneficiary’s award in the total damage judgment.
By: Chris N. Jackson
About the Author:
For information on wrongful death lawyers & attorneys, visit the Philadelphia law firm website FeldmanShepherd.com.
wrongful death lawyers
« Challenging California’s Helmet Laws | Home | Chemical Warning for Cosmetics »
Comments are closed.