What is a Wrongful Death claim?
A wrongful death lawsuit alleges that the decedent was killed as a result of the negligence (or other liability) on the part of the defendants), and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the conduct of the defendant or defendants.
Under "common law" (the general legal principles passed from England to the United States over hundreds of years) this type of claim did not exist. It was reasoned that the claim died with the victim, and the surviving family members could not claim damages from the person who caused the victim's death. To correct this injustice, the individual states have passed "wrongful death statutes" over the years, and some form of wrongful death claim action exists in all state jurisdictions today. While they all follow some general principles, each state jurisdiction is unique, since each state has drafted its own form of "wrongful death statute."
This section of Free Advice does not attempt to describe the 50 different rules for each state, but instead provides some of the general principles behind wrongful death claims. If you believe you have a valid claim for the wrongful death of a family member, you should consult an attorney as soon as possible.
[ Back to Top ]
What are the elements of a Wrongful Death claim?
Generally,
- the death was caused, in whole or part, by the conduct of defendant
- the defendant was negligent, or strictly liable, for victim's death
- there is a surviving spouse, children, beneficiaries or dependents and
- that recoverable damages have resulted from the victim's death
[ Back to Top ]
What kinds of damages are recoverable in a Wrongful Death claim?
The following damages may be recovered in a wrongful death action:
(1) Immediate expenses associated with the death (medical & funeral):
(2) Loss of victim's anticipated earnings in the future until time of retirement or death;
(3) Loss of benefits caused by the victim's death (pension, medical coverage, etc.);
(4) Loss of inheritance caused by the untimely death;
(5) Pain and suffering, or mental anguish of the survivors;
(6) Loss of care, protection, companionship of the survivors;
(7) General damages; and
(8) Punitive damages.
Depending on the jurisdiction, some of the listed damages may be barred or restricted by statute. Also, some of the listed damages may be hard to prove and thus be considered too speculative by the court. As a result, they may be struck or restricted. Punitive damages require a higher level of proof and generally very difficult to prove and/or collect.
Depending on your jurisdiction, plaintiffs may be able to recover interest calculated from the time of death, the time the damages were incurred, or from the time of the filing of the lawsuit. Finally, most of the damages for future loss (such as the victim's anticipated earnings) will be reduced to "present value" through a well recognized formula.
[ Back to Top ]
How are future damages calculated in a Wrongful Death lawsuit, and what is "present value"?
Many states have adopted life expectancy tables for use in calculating future losses. It is common to take the victim's earnings at the time of their death and calculate the remaining years until retirement or expected death to figure future loss of earnings. Life expectancy table are also used to calculate loss of benefits, such as the amount of pension benefits which would have been available had the victim lived.
Since a settlement or the trial verdict is calculated at one time, the amount of damages to the plaintiffs must include not only damages until the time of settlement or verdict, but also those which reasonably would have been incurred in the future. However, to avoid over-compensating a plaintiff it is common to reduce future losses to present value. The amount of future damages will be calculated, then reduced to an amount that will equal the full amount if it is conservatively invested. As with life expectancy tables, many states have formulas on how future damages are reduced to present value.
[ Back to Top ]
|
