When someone passes away because of another’s careless or reckless behavior, the circumstances could support a wrongful death action. State law could allow those closest to the victim to receive money for their related expenses and losses. Immediate family members or the decedent’s personal representative generally represent those who qualify to receive compensation, serving as the plaintiff in a lawsuit.
If you lost a loved one due to negligence, you could have options for seeking justice. A wrongful death lawyer can help you build a case and navigate the legal process. Many offer free consultations.
Understanding Wrongful Death Laws
When one party’s carelessness or bad behavior causes someone else’s injuries, the victim generally has a right to pursue compensation for their expenses and losses. This is known as a personal injury lawsuit. The case goes to trial in civil court unless the victim—or their attorney—negotiates a settlement with the at-fault party’s insurer before the trial date.
Unfortunately, some personal injuries are catastrophic. Some victims pass away from their injuries. When this occurs before they have the opportunity to file a personal injury lawsuit, a wrongful death lawsuit is often possible.
The laws that apply to wrongful death cases and define the process differ greatly from state to state. This is one reason why working with an experienced and knowledgeable attorney can be a good idea.
While each state generally allows someone to pursue and recover damages through an insurance claim or lawsuit, they all have their own rules about:
- Who can represent the family
- Who receives the settlement or court award
- How long plaintiffs have to begin a lawsuit
- The types of damages recoverable
You must be familiar with the laws that apply in your case before you move forward with an insurance claim or lawsuit. A wrongful death attorney can help.
What Are the Possible Causes of Wrongful Death?
Wrongful deaths, like personal injuries, generally occur because of negligence. One person’s bad behavior can cause an accident and injuries in almost any situation.
Some scenarios that support wrongful death cases include:
- Car accidents
- Truck accidents
- Motorcycle accidents
- Pedestrian and bicyclist accidents
- Boating accidents
- Nursing home abuse
- Medical malpractice
- Workplace accidents
- Slip and falls
- Trip and falls
- Falls from elevated heights
- Swimming pool accidents
- Other premises liability incidents
- Criminal actions
- Other events resulting in avoidable harm
Any circumstance where one party’s negligence caused another party to suffer fatal injuries could support a wrongful death action. A good way to learn if you have a viable case is to speak with a law firm near you that handles them. Because these laws differ so much by state, you might have a strong case in one state and not have a right to sue in another.
Most Claimants Must Prove Negligence to Seek Wrongful Death Compensation
To win damages in a wrongful death case, usually, you must show that negligence occurred. There are four elements of negligence that attorneys need to identify when building a case against the at-fault party.
These include:
- Duty of care. Another party had an obligation to act with reasonable caution.
- Breach of duty. Another party violated that obligation by acting without regard for others’ safety.
- Causation. The other party caused your loved one’s passing.
- Harm. You have damages arising from the fatal accident.
Your attorney can work to identify these four elements and provide evidence to support them. For example, eyewitness statements might show that a driver approaching an intersection had a red light.
Traffic law creates a duty of care for them to stop at this light. Running it is a breach of duty and could cause an accident. A video of the crash from a nearby convenience store confirms what happened. The victim’s medical records, bills, and other expenses document the harm they suffered.
Who Can File a Wrongful Death Case?
Not every surviving family member of a fatal injury has the opportunity to file a lawsuit against the at-fault party. It depends on state laws. Sometimes, a family member receives a portion of the payout in the case. Under other circumstances, funds might go to the decedent’s estate.
There are generally three ways states approach wrongful death cases:
- Only the most closely related party sues.
- Any immediate family member can sue.
- Only the personal representative can sue.
Sometimes, this still boils down to the surviving spouse, a parent, or an adult child filing the lawsuit and representing the rest of the family as the plaintiff. After all, immediate family members are most likely to serve as personal representatives. However, this is not always true. There are exceptions, and these often frustrate or infuriate other family members.
Who Can File a Wrongful Death Case Depends on the State’s Laws
As noted, who can file a wrongful death case varies between states.
For example, under South Carolina law, those who receive compensation in a wrongful death case include, in this order:
- A surviving spouse and/or children
- The surviving parents, if there is no spouse or children
- Other next-of-kin, such as siblings, grandparents, or grandchildren
However, the party approved to serve as a plaintiff might not be any of these beneficiaries. The state limits this to only the executor or administrator of the estate. If there is no will, the family must go to court to appoint a personal representative to handle the estate before they can move forward with a wrongful death action.
Other states handle this differently. In some states, the spouse, children, or parents sue directly and also receive the proceeds of the lawsuit or settlement. This makes working with an attorney vital in these cases. You do not want to waste time and money building a case, preparing documents, and demanding compensation only to learn you can’t sue.
What Are the Recoverable Damages in a Wrongful Death Case?
Holding the at-fault party accountable and getting justice for your loved one are often big emotional wins for family members. However, they do little to help make ends meet and secure your family’s financial stability. The court award or settlement in your case could do that.
In most states, a wrongful death action allows family members to recover compensatory damages for the expenses and losses they suffered.
This could include money for:
- End-of-life medical bills and other related expenses
- Funeral and burial arrangements
- Loss of income and benefits
- Loss of services previously provided by the decedent
- Loss of the loved one’s guidance and companionship
- The emotional pain and suffering endured by surviving family members
Some States Allow Survival Actions
Some states also have laws allowing families to pursue compensation through a separate case called a survival action. This case often runs concurrently with the wrongful death action but seeks to recover different damages. Essentially, a survival action allows families to recover the money their loved one could have through a personal injury case had they survived.
This generally centers on the conscious pain and suffering the decedent endured because of their injuries. This is most common in cases when the victim survived catastrophic injuries for a time following the incident but eventually succumbed to the injuries or complications.
Not all states have laws supporting survival actions, and some do not allow compensatory damages in certain wrongful death actions. Again, it depends greatly on the applicable laws in your state. Your lawyer can help you understand your case’s recoverable damages and possible value range as they navigate the process.
Building a Wrongful Death Case With a Lawyer’s Help
Working with a wrongful death attorney familiar with the state laws and local courts is a good way to protect your rights and pursue fair compensation after losing a loved one. Your attorney can handle the investigation, including identifying the liable party (or parties) and gathering evidence.
While many claimants have played detective and gathered evidence on their own, this is not easy or inexpensive. Most individuals and families do not have access to the resources a law firm does.
When a personal injury lawyer works on building a wrongful death case, they take many steps to identify, gather, and analyze evidence that could support the claim or lawsuit.
The evidence available depends on a case’s details but could include:
- The report filed by the police or other first responders
- Eyewitness accounts of what happened
- Physical evidence
- Photographs from the accident scene
- Videos of the incident (if possible)
- An accident scene survey
- Accident reconstruction data
- Information from third-party field consultants
- Documentation of damages, including receipts, bills, and invoices
How Does a Lawyer Use Evidence to Build a Car Accident Case?
Once an attorney has the necessary evidence, they organize it to tell the story of what happened, the role the accused party played, and how it affected their client. This includes calculating an estimated settlement range for the case. Only after they develop strong support can they take the next step.
Depending on their plan for the case, their next steps could involve demanding compensation from the insurer or filing a lawsuit in civil court. Sometimes, firms proceed with both options at once. Most cases end with a negotiated settlement before a trial date is set or arrives, but some go before a judge or jury for a verdict.
How Can I Learn More About Filing a Wrongful Death Case?
Some families choose to proceed with a wrongful death claim without a lawyer. However, they could settle for less than they deserve or make mistakes jeopardizing their financial recovery. Insurance companies might say there is no need to hire a lawyer, but this decision benefits the insurer, not the victim’s family.
Insurers sometimes offer settlements before a family has time to build a case and file a claim. These are generally lowball offers. The insurance company hopes the family members accept the payout before they realize their case is worth much more. The goal is to pay as little as possible and get the family to sign a release, freeing the insurer from liability.
All too often, this is an effective tactic for families who want to put the whole thing behind them. Without the deceased party’s income, paying bills and making ends meet is difficult, and they need the money quickly. Insurers take advantage of this.
Instead of accepting these offers, families who lost loved ones should consider:
- Contacting a local wrongful death law firm
- Scheduling a free consultation
- Discussing the settlement offer with a firm
- Learning their legal options
- Whether hiring an attorney to handle the case is in their best interests
In most cases, working with an attorney is a good idea. Lawyers who handle these cases regularly know how insurance companies and civil courts work. They handle all legal aspects, letting their clients focus on more important things. They understand how to navigate the claims process or otherwise seek and recover fair compensation.
Could I Recover Compensation With a Lawyer’s Help?
Whether you can pursue compensation after losing a loved one ultimately depends on your case’s facts. Each case is different. The circumstances of the death and the value of the related losses differ from situation to situation.
Because of this, there is no one-size-fits-all resolution to wrongful death cases. Attorneys must approach each case individually, using their knowledge and experience to determine the best way to handle the case. This is often difficult for individuals to manage on their own—but they have options.
What Are My Next Steps?
If you have questions or are ready to move forward with a wrongful death action, you can contact a lawyer near you who handles these cases. Many personal injury law firms also accept wrongful death cases and provide no-obligation case assessments.
In many cases, you can discuss your case at no cost during a consultation. This is the first step in hiring a personal injury lawyer and seeking compensation through a wrongful death claim or lawsuit.
