Wrongful death is the term used when someone causes the death of another person, whether by action or by failure to act (neglect). Wrongful death is a civil action rather than a criminal action. Since the person killed (decedent) cannot file suit or collect damages, it is the family or representatives of the estate that do so. The intent is to recompense family members who have suffered monetarily and emotionally from the death. Damages can be assessed for lost wages and benefits, loss of companionship, and emotional pain and suffering caused by the trauma.
A defendant can only be held responsible for a wrongful death if it can be proved that the defendant's conduct was the cause of the death. It must be proved that the death would not have occurred without the defendant's act or negligence. The time between the defendant's action and the death of the decedent is not a factor as long as it can be proved that the defendant's action was the cause of death.
If it can be shown that the decedent was partially responsible for his or her death, then he or she may be found to have comparative or contributory negligence, and dependening upon the state in which the incident occurred, damages may be awarded based on the percentage of negligence imputed to the decedent. Also, if the decedent failed to seek appropriate medical care and that failure led to his or her death, there may be no grounds for a wrongful death claim or a reduction of an award.
Different states have different methods for deciding who may file a wrongful death suit and who may recover damages. Generally, it must be shown that the death was caused by another's wrongful act, that the act was such that the decedent would have been due damages from the act, and that monetary damages did arise from the act. If these three criteria are met, it is possible that a wrongful death claim can be filed.
In a case of wrongful death, damages are assessed to compensate family members for their loss. There are many ways in which damages can be calculated, but since damages can be awarded in a number of areas, it is important to examine each one carefully.
The most obvious loss in a case of wrongful death is the actual expense occasioned by medical and death expenses. These usually are easy to determine.
Less obvious but equally important are the loss of future earnings and benefits, as well as the loss of companionship. These damages are more difficult to calculate and include anticipating the lifespan and earnings of the decedent, as well as the relationship to remaining family members.
Loss of companionship is very difficult to calculate since it is totally subjective and does not lend itself to empirical measurements. It is a measure of the emotional pain and suffering experienced by the survivors.
A final area of damages is punitive damages. This is an amount awarded to punish the person who caused the death, rather than to compensate for a specific loss. It typically can be awarded only when the action of the defendant was intentional or grossly negligent.
If you or a loved one has suffered as a result of a wrongful death,
call the Law Firm of Allen L. Rothenberg at 1-800-624-8888 or
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