7 Things to consider for a Wrongful Death Lawsuit

As opposed to a criminal prosecution, a wrongful death action is a case brought in a civil court that seeks damages for the death of somebody else. Nearly all wrongful death cases are brought under the legal theory of negligence. Here are seven things to remember if you’re contemplating a wrongful death action.

Only certain people can bring the wrongful death case
Every state has its own statute involving who can bring a wrongful death lawsuit. Suitable individuals are usually close family members. You can find an example of a wrongful death statute at 740 ILCS 180.

The statute of limitations
Each state also has its own time period within which a civil lawsuit for injuries or death can be brought. If you fail to file a timely lawsuit, you can be forever barred from proceeding further.

Negligence
To prove a wrongful death case on the theory of negligence, the person bringing the action is required to prove certain elements. Those elements are:

  • The defendant owed the person who died a legal duty
  • The defendant breached that duty
  • The breach of that duty caused the decedent’s death
  • The decedent’s estate suffered legally recognized damages

If you fail to prove any single one of those elements, the wrongful death case fails in its entirety.

Survival actions
Nearly all wrongful death lawsuits also have a second count known as a survival action. That’s because wrongful death statutes limit the types of damages that can be claimed,. Additional damages can be sought in a second survival count.

Damages caps
Some states like California have placed damages caps on non-economic damages. Those damages might include pain and suffering, permanent disability or disfigurement.

The decedent’s comparative negligence
In most states, any percentage of fault attributable to that decedent has to be deducted from any award of damages. For example, if total damages are $1 million, and the decedent was determined to be 20 percent at fault for the accident, the award would be reduced to $800,000. In some states, if the decedent is determined to be 51 percent at fault, the wrongful death case fails. In a small minority of states, even one percent of comparative negligence by the decedent can cause a case to fail.

Intentional acts
If a death results from an intentional act, it’s highly likely that an insurance company will deny coverage. That leaves the decedent’s estate chasing a person who caused a death but probably has few or no assets.

Wrongful death cases involve highly complicated litigation strategies. If somebody in your family has been killed by somebody else, you’ll serve your remaining family well by consulting with an experienced wrongful death attorney.

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