The Basics of a Wrongful Death Claim

The Basics of a Wrongful Death Claim

When someone dies due to the fault of another person or business entity, the survivors may be able to bring a wrongful death lawsuit. Such a lawsuit seeks compensation for the survivors’ loss, such as lost wages, lost companionship and funeral expenses.

Here, we provide a primer on wrongful death claims — what they are, who can sue, who can be sued, and what damages may be recovered.

What is a wrongful death claim?

A wrongful death claim exists when a person dies due to the legal fault of another person. The right to file a lawsuit for wrongful death is a relatively new concept. Common Law — the laws brought to the United States from England — did not allow this kind of lawsuit. However, during the last century, state and federal courts created the right to bring a wrongful death action. Every state in this country now has some kind of wrongful death law.

Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) and for acting intentionally.

Who can sue for wrongful death?

A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent’s death (they are called the “real parties in interest”). The representative is usually the executor of the decedent’s estate. The definition of “real parties in interest” varies from state to state. Some of these people might include:

Who can be sued for a wrongful death?

Wrongful death lawsuits can be brought against a wide variety of persons, companies, government agencies, and employees. For example, in a car accident involving a faulty roadway and a drunk driver, a wrongful death action might include defendants such as:

• the driver or employer at fault in the automobile accident;
• the designer or builder of the faulty roadway;
• a government agent who failed to provide adequate warnings regarding a road hazard that caused the accident;
• the manufacturer, distributor, or installer of a faulty or dangerous part of the vehicle;
• the persons who sold, served, or gave alcohol to the impaired driver; or
• the owner of the premises where the alcohol was served.

Immunity for Government Agencies and Employees

In some cases, certain persons or agencies may be immune from a wrongful death lawsuit. That means they cannot be sued for wrongful death. Who might be entitled to immunity again varies from state to state. For example, in some situations, government agencies and employees might be immune from a wrongful death lawsuit, or even family members in certain circumstances.

Recent federal laws provide immunity from wrongful death claims to defendants in railroad collisions and certain product liability cases including medical devices. Such immunity might also extend to drug manufacturers.

Types of Damages

In general, there are three types of damages that may be available to the survivors in a wrongful death lawsuit: (1) economic; (2) non-economic; and (3) punitive.

Economic Damages. These include the value of the financial contributions the victim would have made to the survivors if he or she did not die, and include the following:

• Medical and funeral expenses connected to the death.
• Loss of the victim’s expected earnings.
• Loss of benefits, such as pension plans or medical coverage.
• Loss of an inheritance caused by the untimely death.
• The value of the goods and services that a victim would have provided.

Non-economic Damages. Although less tangible, non-economic damages often have more value than economic damages. Examples include:

• Damages for the survivors’ mental anguish or pain and suffering.
• Loss of care, protection, guidance, advice, training, and nurturing from the deceased.
• Loss of love, society, and companionship from the deceased.
• Loss of consortium from a deceased spouse.

Punitive Damages. Punitive damages are awarded to punish the defendant for especially bad conduct. In many states these damages are not available in wrongful death lawsuits or not recoverable against certain defendants including most governmental agencies. However, treble damages (which are in an amount equal to three times the actual damages) may often be recovered against nursing homes for elder abuse and death.

Note: Survivors can recover interest on the damages from the time they were incurred up to the time they are collected. In some cases, the survivors can get reimbursed from the defendant for attorney’s fees and costs incurred in bringing the lawsuit.

Calculating Damages

Calculating damages can be extremely complicated, and the parties often use expert witnesses, such as economists and actuaries, to give their opinions on the proper amount of damages. These calculations include not only income and benefits earned outside the home, but also the monetary value of services and care provided inside the home by a homemaker parent (such as childcare, cooking, laundry, house cleaning and maintenance, shopping, education, medical care, and transportation).

Time Limits for Filing a Wrongful Death Claim

Every state sets certain time limits, called the “statute of limitations,” on bringing wrongful death lawsuits. Generally speaking, the time limit in Washington State is three years. That said, there are exceptions to this.

In many states, the statute of limitations does not begin ticking until the harm is discovered (sometimes referred to as the “date of discovery”). For example, if a doctor’s failure to diagnose cancer is not discovered for years after the error (because the cancer lays dormant), the statute of limitations may not start until the patient learns of the cancer.

Because wrongful death actions often involve complex areas of law (like medical malpractice) and can result in large damage awards, it is often wise to hire, or at least consult with an attorney.

Have questions regarding a possible wrongful death case? Contact us.