A person injured by a wrongful act (or "tort") of another may be able to bring an action to recover damages. If the person dies, these claims may survive and often can be pursued by the representative, or "administrator," of the decedent's estate. In addition, however, the decedent's heirs and other family members may be able to bring an action against the wrongdoer to recover damages that they have suffered as a result of the death of the loved one. Such claims are usually called "wrongful death" claims, and often arise in the context of automobile accidents, medical malpractice, product liability, or other circumstances in which the fault of a person other than an employer caused the death. Many states do not allow wrongful death lawsuits where the actions of the employee, employer, or a co-worker were the sole cause of death.
Wrongful Death Statutes
There is a body of law recognized and used by U.S. courts called "common" law, developed mostly through cases stretching back into historic England. Many torts were developed and defined by common law. Wrongful death is not one of them; historically there was no recovery for damages suffered as the result of the death of a family member.
The unfairness of this led U.S. states to pass laws creating and regulating the tort of wrongful death. All states now have wrongful death statutes, although they vary markedly in their provisions and procedures.
Who May Bring a Wrongful Death Action
State statutes usually designate the persons who may bring such actions, as well as those who may share in any award. Commonly, close relatives, such as spouses, parents, and children have first preference. Some state laws distinguish between blood relatives and those who were adopted, or legitimate children and illegitimate children. Often, when there are no close relatives, siblings and even further extended family members may bring the action, although usually "step" relatives may not. However, in a recent New York state decision, the survivor of a gay couple that had solemnized their relationship as a civil union under Vermont law was allowed to join in a wrongful death action brought by the decedent's Mother.
In some states, the administrator of the estate or another person appointed by the court may pursue a wrongful death action. Some states require that a wrongful death action be brought separately from a survival action, while others allow them to be pursued together. As a rule, only one wrongful death action may be brought by a single person eligible to bring it. Others entitled to compensation may join in the action and share in any award. The court usually has the discretion to allocate any award based on each person's loss. States have varying, but strict time limits on bringing such an action, usually measured from the time the wrongful act causing the death is discovered.
Establishing a Wrongful Death Claim
Elements that must be established for a wrongful death claim vary from state to state, but generally may include:
- A death caused in whole or in part by the wrongful act of another.
- Surviving spouse, children, or other person(s) entitled by law to bring a claim.
- Monetary damages to the survivors resulting from the death.
Recoverable Damages
Recoverable damages in a wrongful death claim may include:
- Funeral expenses paid for by the claimant.
- Reasonable medical expenses of the last illness paid by the claimant.
- Loss of earnings and support that each claimant could reasonably have expected to receive from the decedent, and/or the value of services reasonably expected to be performed by the decedent.
- Loss of parental training and guidance.
- Loss of companionship (consortium), protection, and nurturing from the decedent.
- Survivors' grief and pain is compensable in some jurisdictions.
Pain and suffering of the decedent before dying are recoverable in some states in a "survival action", where the injured party commenced the lawsuit, but later died as a result of the injuries, leaving the survivors or beneficiaries to continue the lawsuit. There are also limits on recovery for "non-economic," or non-monetary, damages in some jurisdictions. Recovery amounts for loss of future support from the decedent can be speculative and courts often depend on expert testimony and such factors as:
- The age of the deceased and each claimant.
- Health and life expectancy of the decedent and each claimant.
- Earning capacity of the decedent now and in the future.
- Nature and disposition of the decedent to give love, affection, and support. In a California case, a wrongful death award to parents whose son was killed by police was reversed where the facts showed their son ran away when he was young, never kept in touch with his family, and had few job prospects.
Punitive Damages and Defenses
In certain cases, courts may award punitive damages to punish the wrongdoer and to discourage the wrongdoer and others from future, similar actions. Punitive damages are usually awarded only where the conduct is particularly egregious and/or disregards the welfare and safety of others. Whether punitive damages may be awarded in a wrongful death action depends on state law, as well as the conduct of the person responsible for causing the death.
As in other tort actions, defendants in a wrongful death action may point to conduct of the decedent that caused their own death in whole or in part. The award may thereby be eliminated or reduced accordingly. Claimants may also have a duty to "mitigate" their damages, such as finding employment to replace lost support provided by the deceased.
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