Wrongful death is an area of law that many people don’t consider following the death of someone close to them. However, if successful, such an action can bring some monetary relief to surviving family members. When a person dies or is killed due to the negligence or misconduct of another, the surviving family members may sue for “wrongful death.”
The majority of wrongful death lawsuits come after a criminal trial where the defendant may or may not have been convicted of a crime associated with that death. A wrongful death case will have a lower standard of proof than a criminal case (i.e. murder), therefore it is possible to be found guilty of wrongful death but not criminally responsible.
A famous example of this is when former football star and actor O.J. Simpson was found not guilty of murder in 1994. He was, however, later found to be liable for the wrongful deaths of the same two victims in the civil trial.
Wrongful Death Basics
Every state has a civil “wrongful death statute,” which establishes the procedures for bringing wrongful death actions. A suit for wrongful death can only be brought by the personal representatives of the decedent’s estate. Other actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent’s death can also be brought by the personal representative.
Generally, if the lawsuit is successful, the damages awarded will form part of the decedent’s estate and be distributed to the parties stipulated in the decedents will. However, this general rule does not apply in all states and issues can arise when distributing damages if the decedent died without a will. Therefore, before filing a wrongful death suit, check with your attorney as to how the damages will be shared.
Elements of a Wrongful Death Case
In order to bring a wrongful death cause of action the following elements must be present:
- The death of a human being
- Caused by another’s negligence or with the intent to cause harm
- The survival of a family member(s) who is suffering monetary injury as a result of the death
- The appointment of a personal representative for the decedent’s estate
Not all wrongful death cases will be a result of criminal behavior and they can occur from other circumstances such as; medical malpractice, death during a supervised activity, occupational exposure to hazardous substances, and automobile or airplane accidents.
Damages in a Wrongful Death Case
Pecuniary (financial) injury is the main measure of damages in a wrongful death action. Pecuniary injuries include the loss of support, services, lost prospect of inheritance, and medical/funeral expenses suffered as a result of the death. Most courts allow for fair and just compensation for the pecuniary injuries and the damages awarded will include interest from the date of the decedent’s death.
When determining pecuniary loss the courts will consider the age, character and condition of the decedent, their earning capacity, life expectancy, health and intelligence, and the circumstances of the distributees. The main factor will be the decedents earnings and the court may consider the earnings at the time of death, the last known earnings if unemployed, and potential future earnings to determine the full amount of damages. The court may also decide to award punitive damages if it is a serious case of malicious wrongdoing in order to punish the defendant and deter others from behaving in a similar fashion. Not all states allow for punitive damages but an attorney will be able to advise you as to whether your state allows for them or not.
If you are a surviving family member trying to cope with the loss of a loved one and you would like to speak with an experienced attorney about pursuing a wrongful death action, we invite you to contact the law firm of Charles J. Argento today online or by calling (713) 225-5050. We speak both English and Spanish and look forward to helping you with your case.