Wrongful death is a civil action wherein you seek damages against a person, company, or some other entity for causing the death of a loved one.
Wrongful death claims encompass all types of fatalities. Defendants might be persons, companies, or other entities that you believe to be legally at fault for causing the death of your loved one, either by negligence or intent.
This blog entry provides essential information about what you need to know if you have lost a loved one by way of wrongful death, and/or need legal assistance filing a wrongful-death suit. FAQs include:
What is a wrongful death claim?
Is wrongful death a crime?
What is the difference between a criminal trial and a civil one?
How is a wrongful death suit different from a “survival action”?
Under what conditions can you file a wrongful death claim?
What are some types of wrongful death claims?
What compensation can you seek in a wrongful death suit?
Who is eligible for compensation in a wrongful death suit?
Who can be sued for a wrongful death?
What is a wrongful death lawyer?
Why should you hire a wrongful death attorney?
How long do I have to file a wrongful-death suit?
How much does it cost to hire a wrongful death lawyer?
1. What is a wrongful death claim?
A wrongful death claim is generally filed by the qualified survivors of someone who has died due to the legal fault of another person, company, or some other entity. Such fault is almost always negligence. But it could also be intent, in which case a wrongful-death civil claim might be made alongside a criminal case, regardless of whether the criminal prosecution is successful.
Every U.S. state has a wrongful-death law, and wrongful death claims involve all types of fatal accidents. These can be simple car accidents, complicated instances of medical malpractice, or complex product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (i.e. failing to act as a reasonable person would have acted) or for acting intentionally.
2. Is wrongful death a crime?
No. A victim’s family can sue for wrongful death when their loved one dies due to the negligence or misconduct of another party. They can even do so if the wrongful death was the result of murder. Such a case typically follows a criminal murder trial, and since it is a civil action rather than a criminal one, there is a lower standard of proof.
In other words, the family need only prove that the alleged murderer was responsible by way of a preponderance of evidence—not beyond a reasonable doubt. So there are cases where a person is not found guilty of murder in a criminal court, but he or she is successfully sued for wrongful death in a civil one.
For example, in 1994 O.J. Simpson was found not guilty of murder because the prosecution was not able to establish guilt beyond a reasonable doubt. But he was found liable for the wrongful death of the two victims in his civil trial because, by way of a preponderance of evidence, the plaintiffs were able to prove he was responsible.
Criminal convictions do not do much—if anything—to help you emotionally or financially should your loved one be the victim of murder. This is why every U.S. state now has legal provisions for bringing wrongful‑death civil suits against alleged murderers, whether or not they are criminally convicted.
3. What is the difference between a criminal trial and a civil one?
Criminal trials deal with offenses against the public, society, or the state. E.g. murder, assault, theft, and driving while impaired. Only the federal or state government can initiate a criminal trial. Punishment is usually imprisonment and/or a fine paid to the government. On the other hand, civil trials are about injuries to a person, company, or some other entity. E.g. libel, slander, breach of contract, negligence resulting in injury or death, and/or property damage. Civil trials are initiated by private parties, the outcome of which is decided by a judge or jury and punishment almost always consists of a monetary award to the injured party bringing the suit (see source).
4. How is a wrongful-death suit different from a “survival action?”
A survival action can and often should be filed in conjunction with a wrongful death claim, which is yet another reason that it is wise to engage a lawyer whose practice is focused on wrongful death.
In contrast to a wrongful death claim, a survival action is not filed by surviving family members. Instead, it is an action brought forth by the executor of your loved one’s estate, seeking compensation for his or her wrongful death. It requires a cause of action that your loved one would have had, had he or she survived the incident that caused the wrongful death.
Damages awarded to your loved one’s estate in a survival action might be for pain and suffering; loss of earning power (from the date of injury until death); and loss of earning power (from time of death through his or her estimated working lifespan).
Because a survival action is brought by the estate of your loved one, awards go directly to his or her estate. Thus, any monies you eventually receive from that estate will be treated as an inheritance. This is generally a moot point, as there are no federal inheritance taxes; and only six states impose an inheritance tax. They are Iowa, Kentucky, Maryland, Nebraska, New Jersey, and Pennsylvania (see source).
5. Under what conditions can you file a wrongful death claim?
Four requisites are common to wrongful-death claims, regardless of your state of residence. Among these, you must be able to establish:
That the defendant had a duty of care to your deceased loved one
That the defendant violated that duty in some way
That your loved one died because of that violation
And that you have suffered damages due to his or her death
Otherwise, requisites differ significantly from state to state, making it important that you are assisted in your suit by an attorney who is familiar with the wrongful-death laws applicable to where you live. For example:
Some states allow siblings, adult children, extended family, and other affected individuals to sue for wrongful death.
Other states only permit a surviving spouse and/or minor children to do so.
There are some states in which relatives cannot sue for wrongful death at all. Instead, only an executor (or another personal representative) of the estate can file a suit and, if successful, distribute the compensation among qualified family members.
States have different statutes of limitations, i.e. how much time you have to file a suit.
6. What are some types of wrongful death claims?
Five common types of wrongful-death suits are the result of:
Car accidents. These make up the most common sort of wrongful death cases. Most are the result of at least one driver’s negligence. I.e. speeding, reckless driving, inadequate attention, or DWI. A municipality might be held negligent if the accident occurred because of road issues.
Medical malpractice. These cases of wrongful death are usually caused by misdiagnosis, failure to diagnose, surgical errors, or improper treatment of a medical condition.
Workplace accidents. These are instances of wrongful death that might be caused by “slip and fall,” “struck by,” “struck against, “ or “entanglement” accidents. They also might be fatal injuries involving motor vehicles, electrocution, or falling from heights.
Defective products. Tainted foods, defective drugs, defective cars, and unsafe children’s products are common causes of this kind of wrongful death.
Semi-truck accidents. The most common causes of wrongful death involving “semis” are accidents resulting from oversized loads; poor truck maintenance resulting in mechanical issues (e.g. defective brakes); and driver errors such as aggressive driving, loss of control, or driving while fatigued.
7. What compensation can you seek in a wrongful-death suit?
Losses traceable to the wrongful death of a loved one are typically difficult to quantify, which is a major task with which your wrongful death lawyer can provide skilled assistance. Such losses can be:
Funeral expenses
Costs for estate administration of the deceased
Loss of affection, support, and companionship
Loss of inheritance
Loss of services your loved one would have provided
Medical bills
Loss of your loved one’s income
8. Who is eligible for compensation in a wrongful-death suit?
Generally speaking, a wrongful-death suit is filed by a representative of your loved one’s survivors who is plausibly suffering damage from his or her death. These people are legally referred to as the “real parties of interest.” Depending upon the state in which you reside, they most typically include your loved ones:
Spouse or life partner, whether legally or common law married
Children under a certain age (e.g. 25), whether biological or adopted
Parents, whether biological or adoptive
Siblings, if the deceased provided for their full or partial support
Less typical but often enough:
Some states permit brothers, sisters, and grandparents to bring wrongful-death lawsuits. E.g., a brother who has been raising a child of the deceased might be able to file.
Some will include persons who plausibly are suffering a financial loss traceable to the wrongful death, even if they are not related by blood or marriage.
Some states include the death of an unborn fetus.
9. Who can be sued for a wrongful death?
A wrongful death lawsuit might be brought against one or more individuals, corporations, government entities, and other parties. For example, in a case of wrongful death attributable to medical malpractice, you might file a claim against the physician, his or her employer, and the hospital in which the malpractice occurred. Depending on the circumstances, a drug company might be named a defendant, as might a medical equipment manufacturer.
In such cases, it is crucial to retain a wrongful death attorney who can identify all the at-fault parties. This requires gathering evidence and presenting it in accordance with applicable tort law. E.g. medication-admin and prescription records, nurses’ and doctors’ notes, diagnostic information, lab reports, treatment plans, discharge papers, and more.
10. What is a wrongful death lawyer?
Most any attorney who is licensed to practice law in your state is legally qualified to handle your wrongful death claim. However, you would do well to seek out a lawyer who can document extensive experience handling wrongful death cases. He or she will offer wide-ranging skills and detailed knowledge about wrongful-death suits that a generalist—i.e. an attorney who takes on any or all cases—might not be able to offer.
11. Why should you hire a wrongful death attorney?
Insurance companies know that the vast majority of people have no idea what is fair compensation for a wrongful death; and the representatives sent to investigate your wrongful‑death claim work for those companies, not for you.
Remember, no matter how warm, friendly, and sympathetic an insurance representative might apparently seem, he or she will do whatever it takes within the law to pay you as little as possible to compensate you and/or your family for the wrongful death.
Also bear in mind that insurance representatives are skilled at persuading you that an unsubstantial offer is a generous one, which is something you might want to believe while enduring the pain, grief, and sorrow of a wrongful death. You just “want it to be all over.” So you are emotionally vulnerable.
You need a wrongful death attorney who is keenly knowledgeable about the applicable law in your state and experienced in dealing with insurance representatives. That way, you will realize fair and just compensation for the wrongful death of your loved one.
12. How long do I have to file a wrongful-death suit?
You need to act quickly if you want to file a wrongful‑death suit. While the statute of limitations for criminal charges related to death are indefinite, they expire quickly for civil lawsuits. Each state specifies its own length of time after which you can no longer file a wrongful-death suit, one or two years being typical.
13. How much does it cost to hire a wrongful death lawyer?
Galindo Law does not charge any upfront or out-of-pocket fees. We are only paid a percentage of the settlement we are able to secure for you. So by working with Galindo Law, you incur zero financial risk.
Remember, when it comes to a wrongful death claim, you are not asking for charity. You deserve to be adequately compensated for your loss.
And thank you for reading our blog!
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