What Is a Wrongful Death Lawsuit?

Wrongful Death Means a Death Caused by Another's Negligence or Wrongful Act

A wrongful death lawsuit is a civil case a family brings when someone they love died because of another person's or a company's carelessness or wrongful act.

The law calls a death wrongful when the same conduct would have given the person an injury claim had they survived it.

The lawsuit asks for money for what the family lost, such as income, care, and companionship, and it does not depend on anyone being charged with a crime.

The insurance company of the person or business at fault is usually the one that pays.

Common examples are fatal car and truck crashes, medical errors, nursing home neglect, deaths on the job, unsafe property, and defective products.

Each state writes its own wrongful death law, and that law sets who may file, what can be recovered, and how long the family has.

You do not have to know which kind of case yours is before you ask a lawyer whether the death qualifies.

What Qualifies as Wrongful Death, From Carelessness to a Defective Product

A death qualifies as wrongful when someone else's carelessness, a wrongful act, or a defective product caused it, and the person who died could have sued over the same conduct had they survived. Each state's wrongful death law then gives the family a claim of its own for what the death cost them.

Carelessness, which the law calls negligence, covers a driver who ran a red light, a hospital that missed a treatable infection, and a landlord who left a broken stair unrepaired. A wrongful act covers conduct that was intentional or reckless, such as an assault or driving drunk. A defective product covers a vehicle part, a drug, a machine, or a household item that was dangerous as designed, built, or labeled.

A family has to show four things.

• The person or company owed your family member a duty of care, as every driver, doctor, manufacturer, and property owner does.
• They failed in that duty, by acting as a careful person would not have or by failing to act.
• The failure caused the death or brought it sooner.
• The death left losses the state's law counts, such as lost income, lost care, and funeral costs.

If you can point to something a person or a company should have done differently, ask a lawyer whether the death qualifies.

Examples of Wrongful Death Cases and Who Is Responsible in Each

Wrongful death cases are grouped by how the death happened, because the cause decides who is responsible, what proves it, and which insurance company pays.

Fatal Car, Motorcycle, and Pedestrian Crashes

The claim is against the driver whose carelessness caused the crash, and the police report, the witnesses, and the data from the vehicles and phones prove it. The policy limit caps what the at-fault driver's insurance company will pay, so a wrongful death claim after a fatal car accident often comes down to finding every policy that applies, the family's own included.

Fatal Crashes With Commercial Trucks

When the other vehicle was a semi or another commercial truck, the trucking company answers for its driver and for its own hiring and scheduling. A violation of the federal trucking regulations can be used to show fault. The black box and the driver's logs are kept for a limited time, so a fatal truck accident claim begins with a letter demanding that they be preserved.

Deaths From Medical Errors

A death is medical malpractice when a doctor, a nurse, or a hospital gave care below the standard their profession accepts and the death followed from it. The medical chart, reviewed by physicians, is the proof. Two examples are a diagnosis that was missed or made too late and an infection picked up in the hospital that was not treated in time.

In more than half the states a malpractice lawsuit needs an expert-backed filing at or before the start, such as a certificate of merit or an expert affidavit. A medical malpractice wrongful death claim can also face a cap on part of the recovery and a shorter deadline. When a mother or a newborn dies in labor and delivery, the claim is built from the delivery records, as a birth injury malpractice case is.

Deaths From Nursing Home Neglect

A nursing home and the company that owns it are responsible when a resident dies of neglect or abuse, as with an infected bedsore, a fall, or dehydration. The question is whether the death came from the resident's illness or from care that was never given, and the care plan, the nursing notes, and the staffing records answer it. Being elderly or already ill does not rule out a nursing home wrongful death claim.

Deaths on the Job

When someone dies at work, workers' compensation death benefits are usually owed whoever was at fault, and the employer's insurance company pays them. A lawsuit is usually aimed at an outside company or person, such as the maker of a machine, another contractor on the site, or a driver. Taking the benefits leaves that lawsuit intact, and a workplace wrongful death case can pay for losses the benefit schedule leaves out.

Deaths Caused by Defective Products

When a vehicle part, a drug, a medical device, or a machine fails and kills someone, the claim is against the company that made it and, in many states, the companies that sold it. In most states the family proves the defect and its link to the death and does not have to show the company was careless. A few states, including North Carolina, ask for proof of negligence or a broken warranty. The product is the main evidence in a defective product wrongful death lawsuit, so it should not be repaired, returned, or thrown away.

When one product has harmed many people, a family's case can proceed alongside others over the same product, as in the Roundup weed killer lawsuits and the AFFF firefighting foam lawsuits.

Deaths on Unsafe Property

A property owner, or the business occupying the property, can be responsible when a dangerous condition there caused a death. Examples are a drowning in an unfenced pool, a fire in a building with blocked exits, and carbon monoxide from a faulty heater. The owner's inspection and repair records are the usual proof, and the rules for a premises liability claim differ by state and by why the person was on the property.

Deaths Caused by a Crime or an Intentional Act

An assault, a shooting, or a drunk driving death can lead to a prosecution and to a wrongful death case. The family's lawsuit needs no conviction, or even a charge, and its standard of proof is lower than a criminal court's. It can also reach a business whose carelessness made the crime possible, such as a property owner that ignored earlier attacks on its premises. A family told to wait for the verdict should first learn how a wrongful death claim differs from the criminal case, because the civil case runs on a deadline of its own.

 

 

Why a Fatal Crash on the Job Can Be Two Kinds of Case

A death does not always fit one type. A delivery driver killed by a semi while working leaves the family a workers' compensation claim and a truck crash claim. A resident who dies of a medication overdose in a nursing home may leave a neglect claim against the home, a malpractice claim against the prescriber, and a product claim if the drug was defective.

Each type can bring a different insurance company, a different kind of expert, and sometimes a different deadline, so a claim overlooked at the start can run out of time.

Over the many years handling these cases we've learned that most wrongful death claims have more than one defendant hiding in the file.

Working out which claims a death supports is among the first things in what a wrongful death lawyer does for your family.

Who Is Allowed to Bring a Wrongful Death Lawsuit for the Family

State law names the person. In many states the lawsuit is filed by the personal representative of the estate, who acts for the whole family. In others the relatives the statute lists, usually a husband or wife, children, or parents, file in their own names. The same statute sets whom the lawsuit is for, so which relatives can bring the claim in your state is among the first questions a lawyer answers.

When the law requires a personal representative and the estate has none, the appointment comes from a probate court, and helping a family start that proceeding is part of our work.

What Money Can a Family Recover in a Wrongful Death Lawsuit?

A wrongful death lawsuit can pay for the income and support the family lost, the work the person did at home, the funeral and burial, and in most states the lost companionship and guidance. States differ on that last part. New York holds a family's recovery to its financial loss, and in Alabama the only damages are punitive ones. Which damages a wrongful death claim can include depends on the state whose law applies.

Most states also give the estate a second claim, covering what the person went through after the injury and before the death, and a few, such as Florida and Tennessee, combine both into one lawsuit. That second claim is the estate's survival action, and which claim a dollar is paid under decides who receives it.

What one family's case is worth depends on its losses, how clear the fault is, how much insurance can be reached, and any cap the state sets. Those same things decide a wrongful death settlement amount.

A Wrongful Death Lawsuit Deadline Depends on the State and the Cause

Every state sets a filing deadline. Two years is the usual figure, the range is one year to three, and in most states the clock begins the day the person died. The wrongful death statute of limitations for your state is the date to find first, because a case filed after it is dismissed however strong the proof.

The kind of case can move that date. When medical or nursing care caused the death, the malpractice deadline may apply, and it may be counted from the treatment date or from the date the error was discovered. Many states also end a defective product claim a fixed time after the product's sale. When a government body is the defendant, a written notice is due within months in some states (90 days in New York, 180 days in Arizona, six months in Texas), and other states allow years or ask for no notice.

Ask for your date early, and tell the lawyer if medical care, a product, or a government body was involved.

Death Certificate, Bills, and Records to Gather in the First Weeks

Nothing has to be decided in the first weeks, and four steps keep a claim from being damaged in the meantime.

• Order several certified copies of the death certificate, and if anyone is unsure what caused the death, ask about an autopsy before the burial or cremation.
• Keep the funeral contract, the medical bills, and recent pay stubs or tax returns, and note who paid each bill.
• Hold on to physical evidence, such as the vehicle, the product, or photographs of the place where it happened.
• Do not record a statement for an insurance company or sign its release until a lawyer has seen the paper.

An insurance company may offer money early, sometimes toward the funeral, and the payment may come with a release that ends the claim.

An unpopular opinion: a fast wrongful death settlement is usually a bad one.

The defending parties want to rush closure before all the facts are out. Our job is to make sure that doesn't happen.

Cost should not keep a family from asking. The attorney fee is a portion of the recovery, named in the fee agreement before any work starts, and none is due when nothing is recovered. Records and expert fees are advanced by the firm. The steps of a wrongful death lawsuit run from the investigation and a demand to the insurance company through a settlement or a trial.