The untimely death of a friend or loved one is an incredibly confusing time. In addition to facing permanent loss, there are sudden, unexpected expenses to meet and, generally speaking, less or no money coming in to pay these bills.
When most people seek legal assistance in a wrongful death situation, they have moved past the first stage of grief (denial) and moved on to the next phase (anger). Typically, people in this situation are angry because someone else’s negligence was responsible for their loved one’s death.
Unfortunately, no one can turn back the clock and bring the deceased victim back to life, warn her not to go to work that day, or whatever. But, a wrongful death attorney can obtain compensation that gives loved ones a little extra financial security, which is probably what the deceased person would have wanted.
What is a Wrongful Death Suit?
These lawsuits are negligence actions which are filed in civil court. To obtain compensation, the plaintiff must prove the following elements:
- Duty: Most people have a duty of ordinary care, which means that drivers must avoid crashes whenever possible, landowners must inspect their property to make sure it is safe, and so on. Some people, such as professional drivers and medical personnel, owe a higher duty of care.
- Breach: Duty is a legal question, and breach is a fact question. For example, drivers breach their duty when they speed and doctors breach their duty when they make medical mistakes.
- Cause in Fact: Some lawyers call this element “but for” causation, because the plaintiff must prove that the wrongful death would not have occurred “but for” the tortfeasor’s (negligent person’s) conduct or misconduct.
- Proximate Cause: In California, this element is usually termed either “substantial cause” or “foreseeability.” For example, it is foreseeable that a loose step might cause a fatal fall, but probably not foreseeable that a loose step would cause the stairway to collapse onto a passerby.
- Damages: The wrongful death itself always satisfies this element.
Plaintiffs must prove these elements by a preponderance of the evidence (more likely than not).
Who Can File a Wrongful Death Suit?
Since the victims cannot file lawsuits, it is up to someone else to obtain justice. That someone else is usually the decedent’s surviving spouse, surviving child(ren), or someone “who would be entitled to the property of the decedent by intestate succession;” these people are normally more distant blood relatives.
Curiously, and unlike some other states, California’s wrongful death statute does not name a personal legal representative as a person with standing to sue.
In some cases, a common law spouse, the decedent’s parents, or the decedent’s stepchild(ren) may also bring a lawsuit. To be eligible to file, these people must prove that they depended on the decedent for financial support.
How Long Do We Have to File?
If a wrongful death lawsuit is not filed within two years of the person’s death, the family probably loses any right for compensation. If a government agency was involved, like the MTA, the time period could be as short as six months, because plaintiffs must first file a notice of claim.
What Damages Are Available?
Typically, both economic and noneconomic damages are available in wrongful death cases. These economic damages include money for:
- Medical bills related to the decedent’s final illness or injury,
- Burial and funeral costs, and
- Future lost income.
These losses are designed to compensate the estate for the direct expenses related to the untimely death.
Family members who sue may also be entitled to noneconomic damages, including money for the loss of:
- Consortium (companionship and household services),
- Guidance and emotional direction, and
- Future financial support.
To ascertain future expenses, attorneys often work with accounting professionals who can give a reasonable estimate to the jury.
How Are These Cases Resolved?
Over 90 percent of civil cases settle out of court before trial. Determining a case’s settlement value is part science and part art. After determining the amount of concrete damages, such as lost future income, most attorneys consider the facts in the case, the strength of the evidence, and the jury’s likely verdict before making a formal offer to the defendant; the defendant is usually an insurance company.
About the Author:
Joshua Glotzer is the founder of Joshua W. Glotzer, APC, a Los Angeles personal injury law firm. Mr. Glotzer has over 20 years experience handling all accident matters.