The premature death of a family member is a tragedy on its own, but if their death happens as a result of someone else’s negligence or wrongdoing, that may entitle you to compensation. A wrongful death lawsuit can be rather complicated, and combined with the emotional trauma you may be feeling, the process becomes even more difficult. That’s where having an experienced Chula Vista wrongful death attorney handling your case is very beneficial.
What Qualifies as Wrongful Death?
Wrongful death is when someone dies due to someone’s negligence or wrongdoing. This act does not have to be direct for that person to be implicated; in fact, their inaction could be just as much responsible as any action might be. Killing someone in self-defense would not qualify as wrongful, but there are many other situations in which it would apply. There are numerous circumstances under which a wrongful death claim can be made, and neglect or wrongdoing must be proven in order for any potential compensation to be received. Some examples include:
Negligent Driving
If a family member is killed because someone was texting, speeding or drinking while driving, then their irresponsible actions would be grounds for a wrongful death lawsuit.
Safe Premises
When someone walks into a store or someone else’s home, they have a reasonable expectation of safety. However, if an unfortunate accident should befall them which could have been prevented, a wrongful death suit could be appropriate.
Medical Malpractice
This stems from a doctor’s failure to diagnose, improper treatment, or not letting someone know all of the potential risks of medicine or procedure.
Unsafe Product
We see cars, phones, and medicines have recalls issued sometimes due to injuries or deaths suffered by the users. If someone does die as the result of using a product which the manufacturers knew could potentially cause harm, then a wrongful death lawsuit can be filed.
Toxic Substance
It wasn’t until much later that we learned how harmful things like lead or asbestos is, so proving negligence here can be rather difficult. Toxic tort law also notes that this is particularly so because the damage caused by exposure to these substances often doesn’t become apparent for several years.
Suicide
Wrongful death cases of this matter often are filed when it’s apparent that the negligent person should have known the deceased might commit suicide. A real-life example of this is a suit recently filed against Jim Carrey by Cathriona White’s husband. Carrey illegally obtained and supplied White with a dangerous mix of pills, which led to her death by suicide.
Work-Related
According to the Bureau of Labor Statistics, there were 4,679 fatal accidents in the workplace in 2014. Usually, worker’s compensation handles these things, but if the death was caused by a third-party (for example, if a highway worker is killed by an errant driver) then wrongful death would come into play.
Wrongful Death Statistics
More than 140,000 people die every year due to injury, and while not all are wrongful, a lot of them are preventable.
- 98,000 people die every year due to preventable medical errors, and one in five medical errors are fatal.
- According to the Center for Disease Control (CDC), six of the 10 leading causes of injury death are unintentional.
- Every year, 25,000 deaths in the U.S. are attributed to slip and fall accidents.
- In 2014, nearly 10,000 people were killed in drunk driving crashes
In a wrongful death suit, a person has died usually due to someone’s unintentional actions. They did not premeditate the killing of that person; a doctor does not intend to kill someone, and a drunk driver does not intend to kill someone. They may not have done it “on purpose,” but they are still responsible for a death, and should be held as such.
Who Can File a Wrongful Death Claim?
According to California law, explained in civil procedure 377.60-377.62, only those related by marriage, blood or qualify as a dependent would be able to file a wrongful death claim. These people are specifically: the spouse, domestic partner, or surviving children. If there is no spouse or children, then someone who is “entitled to the property by intestate succession” could file a suit.
What does intestate succession mean? This is how it’s determined who may be entitled to compensation in a wrongful death claim. The deceased’s parents, siblings, the putative spouse (e.g., the spouse of a void or voidable marriage), and/or children of the putative spouse. A minor who lived in the decedent’s residence for at least 180 days and was dependent on them for a minimum of half support would be eligible as well.
Anyone other than those listed here by California law, even if they are mentioned specifically in the decedent’s will, is not allowed to seek compensation in a wrongful death suit. This is why a survivorship claim may be a better route, which will be discussed in detail shortly.
How Long Does the Family Have To File a Wrongful Death Claim?
The general statute of limitations with personal injury cases in California is two years from the time the injury was sustained. Generally, the same limitation applies to a wrongful death claim, but there are a few situations in which this would be different. One such case is medical malpractice causing death.
In most medical malpractice cases, the statute of limitations is one year. However, in a wrongful death case, the California code provides three years from the action – or inaction – which caused the death. It never exceeds three years except in cases of fraud, intentional concealment, or the presence of a foreign body in the decedent which has no therapeutic or diagnostic intent (such as a tool left inside someone during surgery). Civil procedure stipulates that 90-day notice be given to the healthcare provider before filing a suit. The manner of this notice is not defined.
Another case in which the limitation is different is if it’s being filed due to toxic substance exposure. If the decedent was exposed to asbestos, then the claim must be filed within one year of their death, or within one year of the date when the plaintiff knew or reasonably should have known, that the death was caused by asbestos exposure. The limitation is two years if the death was caused by another hazardous material or toxic substance.
In a traditional personal injury case, the clock starts ticking after the initial injury is sustained. This is usually a finite event with a discernable start date. This can sometimes not be the case in a wrongful death claim, as the events or actions that caused the person’s death, or the knowledge of these events by the plaintiff, can have a variable start date.
What Is the Procedure For Filing a Wrongful Death Lawsuit?
First, a wrongful death claim is a civil action, and not a criminal prosecution. Jail time or other forms of punishment cannot be sought as reprimand for the negligent action which caused the death. Only monetary compensation can be awarded, and punitive damages are not recoverable. California has a few exceptions to this rule, one of which is if the defendant was convicted of felony murder. Said defendant usually does not have the resources to pay, so punitive damage is usually symbolic.
Another exception can be made if the plaintiff brings a survivorship claim. This is compensation for expenses incurred prior to the decedent’s death. Ambulance fees, care costs, loss of earnings during hospitalization are all applicable here. This is only available if the injured survived for a brief period of time before dying. Usually, damages cannot be sought for pain and suffering, except in cases of elder abuse at a nursing home, which caused the wrongful death.
Other than hiring a competent attorney to handle the case, a plaintiff must first establish themselves as the representative of the decedent’s estate. The plaintiff can do this by proving the relationship (spouse, child, sibling, etc.) and establishing the estate in a courthouse where the decedent was raised. After this, a notice is sent to the responsible parties.
This notice is necessary because it gives the defendant ample time to review the case. If yours has merit, the likelihood of a settlement increases, which means the usually high costs of litigation can be avoided. Settlement discussions can happen at any point during the litigation or trial. Many times a settlement won’t happen until after the deposition when each side has the opportunity to interview witnesses under oath.
Depositions happen after the defendant is made aware of the lawsuit, at which time a request for documents can also be made. This means that the defendant must produce any paperwork it has in relation to the case. It’s also why preserving any evidence you have is important, as it will help you build a case against the defendant, and can serve to compare against what the defendant might produce.
One important thing to note is that only one wrongful death claim can be made as to the result of someone’s death due to negligence. This means that everyone who seeks compensation must be named in the lawsuit because another one cannot be filed against the same defendant for the same person’s death.
Preparation For a Wrongful Death Case
Careful preparation of a wrongful death case is necessary to achieve the best outcome. It is essential to hire an experienced wrongful death lawyer, who will take the following steps:
- Prove and explain liability and damages. Depending on the circumstances of the case, it may be necessary to hire expert witnesses to establish the liability of the defendant for the victim’s death. Depending on the nature of the damages, expert witnesses are often necessary to quantify the amount of financial harm to the heirs resulting from the death of the victim.
- Determine whether an estate should be created. If there are many heirs entitled to recovery, the creation of a probate estate may be preferable. In those cases, the wrongful death claim is brought in the name of the estate instead of by the heirs.
- Establish the life expectancy of the victim. There are many factors to be considered in this analysis; however, determining the life expectancy of the victim is essential to establishing the value of the claim.
- Determine how much financial support has been lost by the heirs. A complex economic analysis of the victim’s assets, wage history, and anticipated future wages is often necessary to determine the amount of financial support lost by the heirs.
- Establish a dollar value for loss of companionship, society, and comfort. These “non-economic damages” are highly subjective, and a skilled trial attorney must persuade the jury to award an amount of money that is fair and reasonable in light of the loss suffered by the heirs.
What Damages Can Be Awarded In a Wrongful Death Claim?
What you can expect in the form of compensation in a wrongful death claim is usually monetary only, except in the cases of survivorship claim or elderly abuse described above. So what qualifies as something for which you can be compensated, how is compensation awarded and how long does it usually take to receive that compensation?
Tying monetary value to a person’s life is difficult to do, but the sudden loss of a spouse or parent can mean the sudden loss of financial support. The present value of that support can be calculated for however many years are applicable if that person had lived a life of normal length. If the child can prove that the lost support would extend into adulthood – college tuition, for example – then the compensation would include that as well.
The disbursement of any monetary award as the result of a lawsuit or settlement is determined by priority. In California, the spouse automatically gets half of the compensation, unless legally separated. The rest of the order goes as follows:
- Spouse and no children, parents, brothers, sisters or their descendants of a deceased brother or sister – spouse takes all.
- Spouse and one child – spouse takes half and the remainder goes to the child or the issue of a deceased child.
- Spouse and two or more children – spouse takes one-third of the intestate, when the victim leaves more than one child, when the victim leaves one child and the issue of one or more deceased children, or if the victim leaves the issue of two or more deceased children. The remaining portion goes to children of the victim equally, as long as they are in the same generation
- Spouse and parents or brothers and sisters, but no children – spouse takes half, the remaining portion goes to the victim’s parents, and if there are no parents, to the children of the parents equally, as long as they are in the same generation.
- Children and parents, no spouse – all shares go to children of the victim equally, as long as they are in the same generation.
- Parents, no children or spouse – victim’s parents take all. If there are no parents, the children of the parents take equally, as long as they are in the same generation.
There are economic and non-economic damages that can be awarded. The economy takes into account all of those medical and funeral expenses, lost wages, and lost inheritance that we’ve covered. Non-economic can be tough to quantify because it considers the mental pain, suffering, as well as loss of guidance and care due to the person’s death. The state of California does place a cap of $250,000 on non-economic awards, but no limit on economic damages.
Why Should I File a Wrongful Death Claim?
If you’ve been in this situation, then you are painfully aware of one thing: money won’t bring them back. However, filing a wrongful death claim is not only worth your while, but it can help you seek justice and find some closure. It also places responsibility squarely where it should be, on the shoulders of those whose negligence caused the death.
If someone upon whom you were dependent dies, many times there is the great monetary loss suffered due to their death. Not only would medical and funeral expenses be compensated, but the loss of future income, housing, goods, tuition; anything that was provided by the decedent can be awarded. The deceased was providing for their dependent’s future, and if that person dies due to someone else’s negligence, that lost income can be compensated.
Another thing to consider is deterring future negligence. If you’re filing a medical malpractice wrongful death against a doctor, or otherwise against a company that could keep their job or stays in business even after your lawsuit, it could help prevent further misconduct. If people find out the hard way that they will be held responsible for their misconduct, then they are much safer in the future.
A wrongful death lawsuit can be particularly important if the person whose negligence caused the death is not convicted of a crime. Even though it wouldn’t bring that person back, there would still be a sense of justice knowing that the negligent party was held financially responsible for their improper actions.
Contact Our Chula Vista Wrongful Death Lawyers
The law offices of Howard Kitay provide experience and expertise to help you receive all of what you should be justly compensated for. If you need a wrongful death attorney, call Chula Vista wrongful death attorney Howard Kitay for a free consultation. We will analyze every facet of your case to determine how best to accommodate you. Dial 619-754-6854 immediately to discuss your case.
