When someone dies due to the fault of another person or entity, survivors may have the option of bringing a wrongful death lawsuit. This legal action seeks damages, otherwise known as compensation, for the survivors’ loss. 

 

This may include but is not limited to lost wages that would have been earned by the deceased, lost companionship, and the cost of funeral expenses. Of course, there is no way of adequately replacing the victim, but providing compensation for the victim’s loved ones can offset some of the challenges associated with their absence.

While the right to file a claim for wrongful death is relatively new, every state in the United States now has some form of wrongful death law. Wrongful death claims arise from a wide variety of fatal accidents. This may range from an unexpected car accident or a more complicated case of medical malpractice. Other cases include issues like product liability, where a defect or malfunction resulted in death. Under wrongful death law, persons, companies, and government entities can be at fault for negligence or intentional harm done.

A wrongful death claim differs from a criminal case in that it involves civil matters and disputes over rights relating to duties of individuals or entities. Criminal cases are pursued when the government seeks to hold an individual responsible for an act that is deemed a crime. The burden of proof is more stringent in a criminal case, and the penalty results in a consequence like incarceration. With civil matters, the result is more often financial compensation based on a monetary judgment entered against the individual or entity.

 

Elements of a wrongful death suit

  • Death of an individual caused by negligence or an intent to inflict harm
  • Survival of an individual or multiple family member(s) who are experiencing hardship because of the death
  • Appointment of an estate representative on behalf of the deceased person

Who can sue for wrongful death?

Along with actions for personal injury, conscious pain and suffering, or expenses incurred before the deceased’s passing, a suit for wrongful death can only be brought by a personal representative or estate administrator of the deceased.

Life partners & dependents

In some states, a partner has a right to recovery for the death of their loved one. This includes cases where the survivor was financially dependent on the person who died.

Immediate family

In all states, immediate family like spouses and children can recover under wrongful death statutes. This includes adopted children and parents of deceased unmarried children.

Distant family

Some states also allow more distal family members like siblings or grandparents to file a wrongful death lawsuit. One example of this might include a grandmother who was raising her granddaughter.

Those with substantial financial need

Select states allow persons suffering financial consequences from death to bring a case for lost care or support. Individuals in these instances do not need to be a blood relative or married to the person who has passed away.

Parents of a deceased fetus

In some states, the death of a fetus can be grounds for pursuing a right to recovery. In those states, parents are only able to file a suit in the event the child was born alive and passed away thereafter, or if it can be shown that the fetus was viable pre-birth.

 It is important to note, though, that a wrongful death action can be pursued even if the deceased adult never held a job, if they contributed in some other way to the care of loved ones.

Who can be sued for wrongful death?

As stated, wrongful death suits can apply to individuals, companies, and larger agencies. Suits can also be brought against multiple persons or entities in the event of wrongful death. For example, if a person died during surgery, the surgeon themselves could be sued, along with the manufacturer of the surgical instrument, or the hospital system or persons who inspected and tested the instrument before use. A proper investigation will determine the cause(s) of death.

Victims of wrongful death

Though it is impossible to truly place a value on the victim’s life, the legal system needs to provide calculations and sometimes estimations of damages for the suit. Children and older adults can present a challenge when determining monetary losses, as their needs and levels of occupation vary from the working-age population. It is important to note, though, that a wrongful death action can be pursued even if the deceased adult never held a job, if they contributed in some other way to the care of loved ones. An example of such a case might include a stay-at-home husband or wife who contributes to the guidance and nurturing of the family.

Loss of children

When a child dies, parents’ recovery is limited only to loss of care and companionship. By comparison, if a child lost his father in an accident, the child could seek damages for his father’s lost income as well as his parental care and guidance. There can be variations, such as assessing the earning potential of a 15-year-old who is close to entering the workforce, as opposed to an 8-year-old child. For determinations of loss after the death of a child, the following factors are considered:

  • Age, sex, life expectancy, health, and skills of the child
  • The child’s earning potential and work expectancy
  • The health, age, and economic circumstances of the claimants of the wrongful death

Loss of older adults

An older adult’s death will result in a smaller economic recovery potential, although the emotional loss can be just as devastating for the family. Compensation for the death of an older adult can hinge on several factors, including their earning potential and the economic needs of their descendants.

It is generally assumed that older adults who are past retirement age do not possess as strong an earning potential as a younger adult. Additionally, older adults often have adult children who do not require the same degree of support or nurturing that younger children do.

Conclusion

Although a wrongful death suit cannot bring the victim back, it can restore a sense of justice, and help offset the burden associated with the victim’s death. There are a wide variety of circumstances giving rise to wrongful death actions, and it is recommended to enlist the help of experienced legal professionals when pursuing wrongful death suits.

 

Joseph A Swartz is an accomplished trial attorney with over 35 years of experience litigating cases in New England and around the country focusing in the areas of personal injury, including but not limited to wrongful death, products liability, medical malpractice, brain injury, dram shop (liquor) liability, automobile liability and premises liability.

 

 

Need Help?

If you or someone you know, needs help from a lawyer, contact the law offices of Swartz & Swartz, use our live chat, or send us a message using the form below and we’ll get in touch to assess your case and how we can help.