In a nutshell, a wrongful death lawsuit consists of an act by an individual resulting in the death of a person. The death may follow as either an intentional or accidental action, and the deceased person’s estate may find themselves eligible to file a wrongful death lawsuit. In order to recover from a wrongful death suit, a variety of different damages may apply, such as the decedent’s medical bills, lost wages, and the pain and suffering before death. Some examples of wrongful death claims include:
The term for recovery is referred to in the law as “damages.” Damages are the plaintiff’s claimed losses in a personal injury case which is the category of most wrongful death cases. Damages fall into two categories: compensatory and punitive damages. Most states award compensatory damages to the decedent’s family to compensate for their loss caused by the decedent’s death. Punitive damages are also awarded to the decedent’s surviving family; however, punitive damages act to punish the defendant and deter others from similar behavior. Thus, some states focus on compensating the decedent’s family, while others focus on punishing the defendant.
Now, one must remember which state the accident occurs in since each state contains its own protocol for a wrongful death attorney and what qualifies as wrongful death.
What Qualifies as Wrongful Death?
Wrongful death may be defined by each state’s own “wrongful death statute,” which establishes the procedures for wrongful death actions. In addition to being found financially reliable for the death of an individual, one may also suffer conviction of a crime associated with that death. For a wrongful death attorney to take on a case, they must first examine the elements used to define a wrongful death lawsuit. Each of the following elements must be present:
- The death of a human being,
- The death was caused by another’s negligence, or with intent to cause harm,
- The survival of family members who are suffering monetary injury as a result of the death,
- The appointment of a personal representative for the decedent’s estate.
Following the elements above, the following examples may help you determine whether to seek help from a wrongful death attorney.
Example 1: Vehicle Accident
Anthony is driving to college after a long last summer in his parent’s house. He cannot contain his excitement and has been texting with his new roommate throughout the day. Anthony knows better than to text while driving but cannot seem to resist the temptation. Unfortunately, while sending a text, Anthony finds himself in a vehicle accident with Mary and her daughter in the backseat in the blink of an eye. Mary suffered severe head trauma upon impact with Anthony’s vehicle and died shortly after the collision. Mary’s surviving family members may find a wrongful death attorneyto seek damages for the loss of their relative’s life in addition to justice.
In this example, if the wrongful death attorney for Mary’s surviving family members establishes negligence by Anthony for texting and driving, Anthony may be found liable for a wrongful death claim.
The plaintiff in a vehicle accident wrongful death case may recover the customary damages such as lost earnings, lost employment benefits, medical bills, and the deceased’s pain and suffering. And the driver at fault could be held liable in a wrongful death lawsuit.
Example 2: Slip and Fall Mishap
Eddie is addicted to coffee and fuels his addiction every morning at Starbucks, located just down the street from his home. One morning Eddie walks into the front door of Starbucks and slips on a freshly mopped floor. The Starbucks intern and the rest of the employees who mopped the floor forgot to place a “wet surface” sign after completing the job. Unfortunately, Eddie died immediately upon impact with the floor. Eddie’s family may seek the services of a wrongful death attorney to file a suit against Starbucks for the death of their beloved Eddie.
In this example, if the wrongful death attorney for Eddie’s surviving family members establishes negligence by Starbucks for failure to place a “wet surface” sign, Starbucks may be found liable for a wrongful death claim.
The plaintiff in a slip and fall wrongful death case may recover the customary damages such as lost earnings, lost employment benefits, medical bills, and the deceased’s pain and suffering. Both employees and owners may be held liable in a wrongful death lawsuit.
Example 3: Medical Malpractice
Casey brings his son, Billy, to the hospital for the rupture of Billy’s appendix. Billy is diagnosed with Appendicitis. Although Appendicitis surgery is common, it must also be treated with care. Unfortunately, halfway through the intended routine surgery, a doctor nicks an artery in Billy, killing him within minutes. Casey learns of this doctor’s mistake and seeks to hire a wrongful death attorney for the death of his son, Billy.
In this example, if the wrongful death attorney for Billy’s father establishes negligence by the doctor for the death of Billy, the doctor may be found liable for a wrongful death claim.
In a medical malpractice wrongful death case, the plaintiff may recover the customary damages such as lost earnings, lost employment benefits, medical bills, and the deceased’s pain and suffering. Both doctors and hospitals may be held liable in a wrongful death lawsuit.
Example 4: Products Liability
Joe buys a new candy at the checkout line of the grocery store every time he shops. One day, Joe buys a new flavor of Skittles that no one has ever tried before. Joe eats the entire bag of Skittles and suffers from kidney failure that leads to his eventual death. Joe’s family may seek the services of a wrongful death attorney as a response.
In this example, if the wrongful death attorney for Joe’s surviving family member establishes negligence by Skittles for producing a deadly batch of product, Skittles may be found liable in a wrongful death claim.
In a products liability wrongful death case, the plaintiff may recover the customary damages such as lost earnings, lost employment benefits, medical bills, and the deceased’s pain and suffering. The producer of the product may be held liable in a wrongful death lawsuit.
Example 5: Assault/battery
John and Bob get into an argument over who runs faster. One day the two men decide to race to settle the dispute once and for all. Both John and Bob ran a 6-minute mile which raised even bigger tempers to flare. John finds himself so angry that he threatens to grab his tire iron. John then walks to his car, reaches for his tire iron, and kills Bob. Bob’s family may seek a wrongful death attorney’s services to obtain damages for Bob’s death.
In this example, if the wrongful death attorney for Bob’s surviving family members establishes intent by John for the death of Bob, John may be found liable in a wrongful death claim.
For clarification, assault does not require that the defendant make contact with his or her victim. Instead, assault is an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm. Battery, however, is the intentional touching of another person in a harmful or offensive way without consent. Thus, although people always seem to say “assault and battery” together, they are separate torts, and it is possible to have one without the other.
In an assault/battery wrongful death case, the plaintiff may recover the customary damages such as lost earnings, lost employment benefits, medical bills, and the deceased’s pain and suffering. The person who causes harm may be held liable in a wrongful death lawsuit.
How to File a Wrongful Death Lawsuit
In order to file a wrongful death lawsuit, a wrongful death attorney must first consider who may qualify as the authorized person by the state’s statute to file this suit. In some states, compared to others, the decedent’s surviving spouse, children, parents, siblings, or other relatives may qualify as authorized to file a wrongful death lawsuit. However, other states require that only the personal representative or executor of the decedent’s estate is allowed to file a wrongful death lawsuit. Of course, each state’s laws and regulations prove vital towards this issue.
Another essential step for a wrongful death attorney is to learn a state’s implemented time limit that restricts whether a wrongful death lawsuit may be filed. For example:
- In California, the wrongful death statute of limitations is 2 years.
- In Montana, the statute of limitations is 3 years.
- In Florida, the statute of limitations is 2 years from the date of death.
Some states begin their statute of limitations (time limit) at the date of the death, while others start upon discovery of the harm. If the statute of limitations as defined by your state’s laws had run, then, unfortunately, you may not be able to bring a wrongful death lawsuit.
Next, a wrongful death attorney must file the proper documents to commence the lawsuit officially. Typically, this first document in a civil case is called a complaint or petition. This complaint or petition must provide the defendant with notice of the factual and legal grounds for the claim. In addition, a wrongful death attorney must file a summons, which essentially notifies the defendant that he is being sued and where the lawsuit will be heard. Finally, once the wrongful death attorney files the lawsuit, all relevant documents must be provided to all defendants. Once again, each state may enforce its own rules about proper methods to provide such information.
A wrongful death attorney’s most significant task lies in proving fault for the wrongful death claim. To prove fault, the wrongful death attorney must prove negligence on behalf of the defendant unless the defendant commits an intentional act. Negligence lies at the heart of this task which contains elements in itself. Proving negligence requires proving duty, breach of duty, causation, and finally, damages. Regarding duty, it is primarily a duty to protect another person or refrain from doing something that would cause them harm. Regarding breach of duty, a plaintiff needs to convince a jury that the plaintiff’s version of the facts is more than 50% likely to be true. Regarding causation, the plaintiff must prove that the breach of duty caused the decedent’s harm. In addition to breach of duty and causation, the plaintiff must prove that the decedent suffered damages. A wrongful death attorney contributes to these actions toward discovering the truth.
In relation to the first example of a wrongful death case above, a vehicle accident, the plaintiff, Mary’s surviving family, alleges that Anthony was driving negligently when he killed Mary. Mary’s surviving family may argue that Anthony owed Mary a duty of care to operate a vehicle as a reasonably prudent person.
In full transparency, the above process may be challenging to navigate, and serving initial documents is only the first step in the process. Lawsuits may last for multiple years, including many nuanced steps, which may be challenging for a non-lawyer. In order to navigate through the legal process in a smooth and effective manner, it may be a good idea to seek the services of a wrongful death attorney.
Why The Cochran Firm
The attorneys at The Cochran Firm are among the nation’s most successful and tenacious attorneys. When navigating through the legal process, you deserve to have an experienced attorney by your side. The Cochran Firm attorneys know how to fight for you.
Here at The Cochran Firm Cleveland, our experienced attorneys are ready to help families pursuing a wrongful death claim. Our attorneys work closely with each of our clients using pooled resources and their access to legal expertise to ensure the most effective legal representation available is provided.
You need the help of an experienced, wrongful death lawyer who has proven successful results in other similar cases to guide you through the process and help you to receive the monetary damages you are entitled to under the law. At The Cochran Firm, we have the offices, the experience, the results, and the resources to aid our clients. Please contact the wrongful death attorneys at The Cochran Firm Cleveland today for your free, no-obligation initial consultation today. 216-333-3333