Wrongful Death Litigation

When a death is caused by someone else, it may give rise to a wrongful death lawsuit. The person bringing the lawsuit is usually the spouse, children, or parents of the deceased person. They are often called "distributees" in the case.

Wrongful death claims usually come about as a result of automobile accidents, exposure to toxic chemicals, accidents at work, defective products or machinery, or medical malpractice.

Wrongful death is a type of personal injury claim. So, just like other personal injury claims, the lawsuit is filed against the people who are believed to be responsible for the injuries that led to death. This might be another driver, a doctor, a manufacturer, or an employer who has perhaps failed, for example, to keep machines functioning properly. The responsible party or parties may have caused the death due to negligence or due to blatant misconduct.

An experienced personal injury attorney is necessary to assist with a wrongful death lawsuit so that the family can receive just compensation for medical expenses, funeral costs, and even pain and suffering. The deceased's heirs may also claim the loss of an expected inheritance. In some cases, the spouse and children may have relied on the deceased person's income, and the death may leave them without enough money to live. Therefore, they would make a claim for loss of income as well.

A "survival action" is another option. In this case, family members seek additional compensation for the pain and suffering of the person who passed away. This can help to bring healing to the family, as well as a feeling that justice was done on behalf of the deceased loved one. Generally, however, the remaining family members must have lost money in some way as a result of the loved one's death in order to receive a wrongful death settlement.

In some cases, the responsible person may also be criminally prosecuted for the wrongful death. This depends upon many factors. In a criminal case, however, family members have no opportunity to receive a monetary settlement. This is why a wrongful death lawsuit must be filed in civil court.

In the criminal case, the state is actually the plaintiff which brings the lawsuit against the responsible party. In the civil case, the family members are the plaintiffs, and the party responsible for the wrongful death is the defendant. You may remember that this is what happened in the OJ Simpson case. He was first prosecuted criminally, and even though he was acquitted in that case, the families of those he allegedly murdered filed a civil lawsuit against him for monetary damages.

How Is the Amount of the Settlement Determined?

The lawyers begin the process of a wrongful death lawsuit by negotiating a settlement. If they fail to come to an agreement, the case may go to court for a judge or jury to decide the amount that the family will receive.

What does the judge or jury take into account? There are several things. First and foremost, of course, is how much the responsible party is at fault for the wrongful death. This is not always cut and dry. For example, if the death was caused by negligence, how much could the responsible party have known about the risks involved?

A judge or jury may decide that the family is not entitled to as large a settlement if the responsible party could not have anticipated what happened. The evidence could also show that the deceased was negligent in some way and contributed to the cause of the accident.

Other considerations are the age of the deceased. This makes a difference in how much money the family receives for lost earnings or potential lost inheritance. How much money would the deceased have been expected to make for the rest of his or her life? That will change the amount of money the family is due.

What if the person who died was unemployed? If that person had worked in the past and was expected to be able to work in the future, the family might be awarded a settlement for lost future earnings. A family might also be entitled to money if the deceased never worked. If, for example, this person was a stay-at-home mother, many contributions to the family would be lost as a result, and the family might have to pay for childcare. Sometimes, an attorney will even have an economy expert testify to how much money the family is likely to lose as a result of the wrongful death.

Obviously, if you take all of this into account, when the deceased is a child or an elderly person, the amount of money received in the settlement is likely to be smaller. Again, all elements of the case have to be taken into account, such as the amount of negligence or misconduct on the part of the responsible party. If someone was aware that there was a hazardous condition on their property, for example, and did nothing to fix it for a period of time, the amount of the settlement might be greater in some states and in some cases than if the hazardous condition occurred on the property just before the accident.

If the family is seeking money for the pain and suffering of the deceased in a survival action, the judge or jury may want medical professionals to testify as to the amount of pain the person suffered prior to death, including how much the injured person was conscious of what was happening.

Punitive damages - money for malicious misconduct on the part of the responsible party - may be awarded to families in Pennsylvania in wrongful death lawsuits. In New Jersey, however, like many other states, punitive damages are not allowed.

Obviously, wrongful death cases can be very complicated, so it's very important for family members to hire an attorney immediately. In both Pennsylvania and New Jersey, you have two years from the date of death to file a wrongful death lawsuit. The sooner you take action, however, the better, as it will be easier to find witnesses and recover evidence to support your case if you file your lawsuit as soon as possible.

Source by Chris N. Jackson