Republished with Permission © 2009 Nolo.
Learn about wrongful death claims -- what they are, when survivors can sue, who might be liable, and what damages survivors can recover.
When someone dies due to the fault of another person or entity (like a car manufacturer), the survivors may be able to bring a wrongful death lawsuit. Such a lawsuit seeks compensation for the survivors’ loss, such as lost wages from the deceased, lost companionship, and funeral expenses. Here’s a primer on wrongful death claims -- what they are, who can sue, who can be sued, and what damages may be recovered.
A wrongful death claim exists when a person dies due to the legal fault of another person. The right to file a lawsuit for wrongful death is a relatively new concept. “Common law” (the laws brought to the United States from England) did not allow this kind of lawsuit. But during the last century, state and federal courts created the right to bring a wrongful death action. Every state in this country now has some kind of wrongful death law.
Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) and for acting intentionally.
A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent’s death (they are called the “real parties in interest”). The representative is usually the executor of the decedent’s estate. The “real parties in interest” vary from state to state. Some of those people might include:
Immediate family members. In all states, immediate family members like spouses and children (including adopted children) and parents of unmarried children can recover under wrongful death actions.
Life partners, financial dependents, and putative spouses. In some states, a domestic or life partner, anyone who was financially dependent on the decedent, and a “putative spouse” (a person who had a good faith belief that he or she was married to the victim) have a right of recovery.
Distant family members. Some states allow more distant family members, such as brothers, sisters, and grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action.
All persons who suffer financially. Some states allow all persons who suffer financially from the death to bring a wrongful death action for lost care or support, even if they are not related by blood or marriage to the victim.
Parents of a deceased fetus. In some states, the death of a fetus can be the basis for a wrongful death suit. In several other states, parents cannot bring a wrongful death action to recover for financial and emotional losses resulting from the death of a fetus. In those states, the parents can bring a wrongful death action only if the child was born alive and then died. Check your state law and consult with an experienced wrongful death attorney to find out if such an action is allowed in your state.
Wrongful death lawsuits can be brought against a wide variety of persons, companies, government agencies, and employees. For example, in a car accident involving a faulty roadway and a drunk driver, a wrongful death action might include defendants such as:
the driver or employer at fault in the automobile accidentthe designer or builder of the faulty roadwaya government agent who failed to provide adequate warnings regarding a road hazard that caused the accidentthe manufacturer, distributor, or installer of a faulty or dangerous part of the vehiclethe persons who sold, served, or gave alcohol to the impaired driver, orthe owner of the premises where the alcohol was served. Immunity for Government Agencies and Employees
In some cases, certain persons or agencies may be immune from a wrongful death lawsuit. That means they cannot be sued for wrongful death. Who might be entitled to immunity again varies from state to state. For example, in some situations, government agencies and employees might be immune from a wrongful death lawsuit, or even family members in certain circumstances.
Recent federal laws provide immunity from wrongful death claims to defendants in railroad collisions and certain product liability cases including medical devices. Such immunity might also extend to drug manufacturers -- this will be decided by the U.S. Supreme Court in 2009.
The damages available in wrongful death lawsuits vary a great deal from state to state. Many states “cap” or limit the amount and type of damages, especially in medical malpractice claims. (To learn more about medical malpractice, read Nolo’s articleMedical Malpractice Basics.)
In general, there are three types of damages that may be available to the survivors in a wrongful death lawsuit: (1) economic, (2) non-economic, and (3) punitive.
Economic damages. These include the value of the financial contributions the victim would have made to the survivors if he or she didn’t die, and include the following:
medical and funeral expenses connected to the deathloss of the victim’s expected earningsloss of benefits, such as pension plans or medical coverageloss of an inheritance caused by the untimely death, andthe value of the goods and services that a victim would have provided. Non-economic damages. Although less tangible, non-economic damages often have more value than economic damages. Examples include: damages for the survivors' mental anguish or pain and sufferingloss of the care, protection, guidance, advice, training, and nurturing from the deceasedloss of love, society, and companionship from the deceased, andloss of consortium from a deceased spouse.
Punitive damages. Punitive damages are awarded to punish the defendant for especially bad conduct. In many states these damages are not available in wrongful death lawsuits or not recoverable against certain defendants including most governmental agencies. However, treble damages (which are in an amount equal to three times the actual damages) may often be recovered against nursing homes for elder abuse and death.
Interest and attorneys’ fees. In some states, the survivors can recover interest on the damages from the time they were incurred up to the time they are collected. And in some cases the survivors can get reimbursed from the defendant for attorneys’ fees and costs incurred in the bringing the lawsuit.
Calculating damages can be extremely complicated, and the parties often use expert witnesses, such as economists and actuaries, to give their opinions on the proper amount of damages. These calculations include not only income and benefits earned outside the home, but also the monetary value of services and care provided inside the home by a homemaker parent (such as child care, cooking, laundry, house cleaning and maintenance, shopping, education, medical care, and transportation).
Every state sets certain time limits, called the "statute of limitations," on bringing wrongful death lawsuits. The general rule is that a lawsuit must be filed within two years of the date of the misconduct that caused the death of the victim. (To learn more about these time limits, read Nolo's articleStatutes of Limitations: Is Your Lawsuit Timely?)
In certain cases, however, the statute of limitations may be as short as one year. Special rules apply to minors (minors usually have two years from the date they reach their majority to file a lawsuit) and persons with a mental disability and in cases involving fraud or intentional acts.
In many states, the statute of limitations does not begin ticking until the harm is discovered (sometimes called the “date of discovery”). For example, if a doctor’s failure to diagnose cancer is not discovered for years after the error (because the cancer lays dormant), the statute of limitations may not start until the patient learns of the cancer.
Some states put an upper limit on the date of discovery in certain types of cases, such as construction, product liability, medical malpractice, and legal malpractice claims. For example, a state may say that a survivor may bring a lawsuit within two years from the date of discovery of harm, but not more than five years from the actual infliction of the harm.
Because wrongful death actions often involve complex areas of the law
(like medical malpractice) and can result in large damage awards, it is
often wise to hire, or at least consult with, a lawyer.