Overview of Wrongful Death

A "wrongful death" is when someone dies from the negligence or misconduct of another.   In the case of wrongful death, the surviving members of the victim's family may bring a suit for wrongful death against the plaintiff.   Many wrongful death lawsuits ensue in the wake of a criminal trial, using parallel evidence but with lower requirements of proof.  

While a prosecutor many are not able to establish guilt beyond a reasonable doubt, the surviving family members may still win a civil trial because the plaintiffs were able to prove the defendant was responsible for a preponderance of the evidence.

A wrongful death suit can only be brought to court by a relative or a representative of the deceased's estate.  Each state has a civil wrongful death statute, or series of statutes, which determine the procedures for taking actions.  Actions for pain and suffering, personal injury and expenses incurred prior to the deceased's death can also be brought by the family representative.  The awards from the action(s) will be appropriated to the estate and could flow to designated parties as directed by the deceased's will.

Aspects of a Wrongful Death Lawsuit
To bring a successful action of wrongful death, the following components must be present:

• Death of a person.
• Another's intent to cause harm, or negligence that caused harm.
• The surviving family members have or will suffer monetary injury as a result of the untimely death, and.
• The selection of a personal agent for the deceased's estate.

Many circumstances can lead to a wrongful death claim, such as:

• Occupational exposure to hazardous substances or conditions.
• Wrongful death during a supervised activity.
• Medical malpractice resulting in death.
• Vehicular or aircraft accident.
• Criminal conduct.

Damages in a Wrongful Death Lawsuit
Economic injury is the core measure of damages in a wrongful death lawsuit.  Courts have interpreted "economic injuries" as loss of support, lost prospect of inheritance, lost services, and medical and final expenses. 

The law provides that the damages awarded for a wrongful death will be just and fair compensation for the economic injuries resulting from the deceased.  In addition, if the plaintiff is responsible for the deceased's medical care and funeral, they may be compensated for those expenses. Ultimately, a damage award will include interest from the date of the decedent's death.

Determining Economic Loss
When determining economic loss, it is appropriate to consider the age, nature, and condition of the deceased, life expectancy, earning capacity, health, and education, as well as the circumstances of the surviving family members. This determination may seem uncomplicated, but it often becomes a convoluted inquiry, keeping in mind that the measure of damages is actual economic loss.

The principal consideration in awarding damages is the deceased's circumstances at their time of death. As an illustration, if an adult income earner with dependants dies, the critical areas of the recovery are: loss of income and loss of parental guidance.  A jury considers the deceased's income at the time of death, or the last known income if unemployed, and potential future income.

Adjustments in the Jury's Award
In a wrongful death lawsuit, a jury determines the extent of the damages awarded after hearing the evidence.  The jury's determination is not always the final word.  The size of the award can be adjusted down or up by the court for an array of reasons. For instance, if the deceased routinely wasted his income, this could reduce the recovery.  Likewise, the courts could diminish a jury's award if the decedent had inadequate income, even if he were young, had good earning potential, and supported multiple children.  Concurrently, a jury can award lost income despite the deceased being unemployed; if the plaintiff can present evidence, the deceased worked in the past and can present evidence of the deceased's typical earnings while employed.  If the plaintiff is unable to present evidence of the deceased's typical earnings, the court may dismiss the jury's damage award and order a new trial.

Using Expert Testimony to Determine Economic Loss
The surviving family representative can present expert testimony of economists to establish the economic value of the deceased to his family.  Until recently, expert testimony was inadmissible when a housewife died, but that statute has changed. When a homemaker, not employed outside the home, dies - the economic impact on the survivors is absent. However, there is an increase in expense to substitute the services she provided or would have provided if she had lived can be considered.  If jurors are not knowledgeable about the monetary value of a housewife's services, expert testimony may support the jury in this evaluation.

Punitive Damages
Punitive damages are awarded if serious or malicious misconduct is found, to punish the transgressor, or as a deterrent to keep others from behaving similarly.  In most states, plaintiffs can not recover punitive damages in a wrongful death lawsuit.  However, some states award recovery of punitive damages.  In state's that do not explicitly exclude punitive damages in wrongful death cases, courts have held punitive damages applicable.   A wrongful death attorney  can advise you on your state's position on punitive damages.

Survival Actions for Personal Injury
In addition to wrongful death damages, plaintiffs may be able to recover personal injury damages.  These damages are called "survival actions" because the personal injury action survives the person who suffered the injury.  The deceased's representative can bring survival action jointly with the wrongful death action, for the benefit of the deceased's estate.
In a survival action for a deceased's conscious pain and suffering, the jury may make inquiries to help determine the value of damages, including:

• The deceased's degree of consciousness.
• The severity of pain experienced by the deceased, and
• The trepidation of impending death, along with duration of suffering by the deceased.

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