|
|
|
|
| Wrongful
death cases are traditionally amongst the
most emotionally charged cases in personal
injury. It is a tremendously difficult time
for families because, not only must they
deal with their heartbreak over their loved
one’s death, they must also deal with
a very complicated legal situation. In their
grief, family members are often unable to
appreciate the importance of a prompt investigation
of the circumstances of death and the preservation
of evidence. These matters are extremely
important in determining how the incident
occurred and identifying the person or persons
legally responsible for the incident. It
is of utmost importance that they obtain
the representation of a successful wrongful
death attorney with expertise in this specialized
field of law.
A wrongful death is a death that has
been caused by another person, entity
or company, due to their carelessness
or negligence. Sometimes more than one
person or entity can be found negligent.
Negligent acts can include:
- A drunk driver striking a pedestrian
- A semi-truck rear-ending a car due
to faulty brake repairs
- A child being attacked by a vicious,
untethered dog
- A vehicle losing control due to unsafe
roads
- A child drowning due to lack of safety
precautions at a pool
Every state has a civil “wrongful
death statute” or set of statutes,
which establish the procedures for bringing
wrongful death actions. In Indiana, Michigan
and New Mexico, survivors must prove fault
in order to succeed in any claim against
the other driver’s insurance company.
|
|
| Elements
of a Wrongful Death Lawsuit |
|
A wrongful death claim may arise out
of any number of circumstances, including
motor vehicle accidents, bicycle accidents,
dog attacks, premise accidents, supervised
activities, and defective products or
negligent repair. Liability may arise
for both negligent and intentional acts.
In order to win a wrongful death case,
the following elements must be present:
- The death of a human being
- Caused by negligence of another person,
company, or entity
- 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.
It is crucial to obtain a knowledgeable
attorney who understand the importance
of:
- Identifying and preserving evidence
crucial to the determination of liability
- Obtaining key witness statements and
documenting photographs
- Understanding the engineering dynamics
involved in accident reconstruction
- Knowing how to calculate the multitude
of losses involved, including loss of
financial support, companionship, and
medical bills.
Knowing how to calculate the multitude
of losses involved, including loss of
financial support, companionship, and
medical bills. |
| |
|
| Damages
in a Wrongful Death Lawsuit |
| In
most states, such persons as the decedent’s
immediate family members, such as the surviving
spouse and children, and sometimes parents
and siblings, may bring the action. Damages
permitted in a wrongful death lawsuit
might include:
- Medical, hospital and funeral expenses
- Compensation from the decedent’s
pain and suffering while conscious,
between the time of injury and the time
of death
- Losses sustained by the decendent’s
spouse, children or next of kin, including
- Loss of financial support, gifts,
and future contributions
- Loss of parental training and guidance
- Loss of companionship, love, care
and comfort.
|
|
|
| Survival Actions
for Personal Injury |
| In
addition to damages for wrongful death,
you may also be able to recover damages
for personal injuries that the decedent
sustained. These are called “survival
actions”, since the personal injury
action survives the person who suffered
that injury. In a survival action, the
jury may make enquiries to help determine
the amount of damages, including what
the decedent went through before his or
her death, such as:
- The degree of consciousness
- The serverity of the pain
- The apprehension of impending death,
along with the duration of such suffering
|
|
|
| Caring for the
Survivors |
|
|
When a family member dies an unexpected,
wrongful death, the grief can be overwhelming.
Grief, which is a natural reaction to
the loss of a loved one, can numb a person
so severely that they have difficulty
carrying on with daily life. At this time,
friends and family members may look to
various resources that are available,
to help ease them through this difficult
time, which may last for months or years.
In addition to the help that your wrongful
death attorney will provide, other professionals
are available to assist in a variety of
areas, such as:
Grief Counseling and Support Groups:
There are many credible and helpful grief
support groups and social services agencies
available, in addition to religious organizations
and medical professionals. There are also
web sites such as Mayoclinic.org and WebMD.com
are two sites with a wealth of helpful
information. Your medical professional
will also be able to suggest additional
options.
Social Security Agency:
This agency should be contacted regarding
death benefits and survivor benefits for
any children.
Insurance Companies:
A trusted family member or attorney should
determine what benefits are available
on insurance policies, including mortgage
insurance, life insurance and pensions.
Estate, Tax Planning, Probate
and Estate Administration: an
experienced attorney will be able to assist
with changing documents, probate and property
title transfers.
When a family suffers a wrongful death,
there are many issues to deal with to
secure their legal and financial future.
The attorneys at Keller & Keller will
assist you with those issues.
|
|
| |
| Wrongful Deaths
Involving Children |
|
There are on average well over 100 deaths
per day in America due to car accidents,
many of which involve children. In fact,
the leading cause of death in children
over one year of age is accidents, with
automobile accidents accounting for the
majority of these deaths. Children are
also needlessly killed by faulty car seats,
unsafe swimming pools, falls, dangerous
equipment or animals. Children are the
continuation of our family, our hopes
and our dreams. The loss of a child can
therefore be overwhelmingly painful to
those who cared for the child. Our attorneys
understand that the death of a child can
therefore be an extremely painful and
overwhelming loss to a family. If you
have lost a child due to the negligence
or fault of another, please contact our
experienced attorneys today.
No one can set a price on human life,
but it is one that courts and juries are
required to attempt to do in wrongful
death actions. As the primary measure
of damages in a wrongful death action
is financial, the death of a child brings
up some difficulties. When an adult dies,
the financial loss is more quantifiable.
For example, when a parent dies, a child
may seek damages for income, nurturing,
guidance, and loss of the parent’s
care. When a child dies, the parents’
recovery is limited to their financial
loss. Attorneys experienced in handling
wrongful death cases can help explain
these and other legal concepts and be
your best allies at this time of terrible
loss.
Prior to 1960, most jurisdictions restricted
recovery for the death of a child to lost
provable earnings and support to parents.
In the early part of the 20th Century
it was more appropriate, as children contributed
significant labor to the family farm or
business. However, as society and children
as a significant labor-force changed,
the fact that raising a child could exceed
the direct economic benefit that the parents
might expect from their child in the form
of household services or earnings. This
presented a perplexing problem for the
judicial system in calculating the economic
loss of a child.
In 1960, George Keller, an admirable
trial lawyer for over 50 years, won the
famous and precedent-setting case of Wycko
v Gnodtke in the Michigan Supreme Court.
This case changed the views of the Courts
forever. The opinion declared that the
traditional child labor formula (basically
the probable wages minus loss of keep)
did not adequately measure the child’s
loss to the parents. The Courts agreed
that the value of life also included the
value of mutual society and companionship.
The Courts also agreed that loss could
be measured as “lost investment”
and held that the parent’s investment
in raising a child is an appropriate basis
for damage recovery. Most states now consider
the parents’ recovery of loss of
society and companionship of their child,
in addition to the pecuniary loss, in
determining the recovery of damages.
|
|
|
Statute of Limitations
for
Wrongful Death Lawsuits |
| Every
wrongful death lawsuit is subject to a “statute
of limitations”. The statute of limitations
is a law which places a certain time limit
for a loved one to initiate a lawsuit. If
the claim is not settled, or an action is
not filed before the statute of limitation
expires, in most cases you permanently waive
your rights to recover any damages.
However, there may be an exception to
the standard statute of limitations in
specific situations, or there may be may
be multiple causes of actions which allow
different lengths of time to bring a claim.
It is for these reasons that you should
consult with highly experienced attorneys
such as Keller & Keller, who can help
determine which statutes apply and help
preserve the right to recover damages.
- Indiana - a cause
of action accrues on the date of death
and must be filed within two years of
that date
- Michigan - a cause
of action accrues on the date of death
and must be filed within three years
of that date.
- New Mexico - a cause
of action accrues on the date of death
and must be filed within three years
of that date
- Government Entities:
- a cause of action must be filed within
180 days
At Keller & Keller, our goal is to
insure that we provide the highest level
of legal representation to our clients
in an effective and compassionate manner.
In times of loss, it is difficult for
family members to deal with all the problems
and uncertainties involved in a wrongful
death lawsuit. Our experienced attorneys
will do the work for you. |
|
|
| Determining the
Damages |
| Pecuniary,
or financial, injury is the main measure
of damages in a wrongful death action. Courts
have interpreted "pecuniary injuries"
as including the loss of support, services,
lost prospect of inheritance, and medical
and funeral expenses. Most laws provide
that the damages awarded for a wrongful
death shall be fair and just compensation
for the pecuniary injuries that resulted
from the decedent's death. If the distributees
paid or are responsible for the decedent's
funeral or medical care, they may also recover
those expenses. Finally, a damage award
will include interest from the date of the
decedent's death. |
|
| |
| Determining Pecuniary
Loss |
| When
determining pecuniary loss, it is relevant
to consider the age, character and condition
of the decedent, his/her earning capacity,
life expectancy, health and intelligence,
as well as the circumstances of the distributees.
This determination may seem straightforward,
but it often becomes a complicated inquiry,
keeping in mind that the measure of damages
is actual pecuniary loss. Usually, the main
consideration in awarding damages is the
decedent's circumstances at the time of
death. For example, when an adult wage earner
with dependants dies, the major parts of
the recovery are: 1) loss of income, and
2) loss of parental guidance. The jury may
consider the decedent's earnings at the
time of death, the last known earnings if
unemployed, and potential future earnings.
|
|
| |
| Adjustments in
the Jury's Award |
| In
a wrongful death action, the jury determines
the size of the damages award after hearing
the evidence. The jury's determination is
not the final word, however, and the size
of the award may be adjusted upward or downward
by the court for a variety of reasons. For
example, if the decedent routinely squandered
his income, this might reduce the family's
recovery. Similarly, the courts will reduce
a jury's award if the decedent had poor
earnings, even though he was young, had
great potential, and supported several children.
At the same time, a jury may award lost
earnings despite the decedent's having been
unemployed, if he had worked in the past
and if the plaintiff presented evidence
of the decedent's average earnings while
employed. If the plaintiff fails to present
such evidence of the decedent's average
earnings, the court may set aside the jury's
damage award and order a new trial. |
|
| |
| Using Expert
Testimony to Determine Pecuniary
Loss |
| Plaintiffs
are able to present expert testimony of
economists to establish the value of the
decedent to his family. Until recently,
this testimony was not admissible when a
housewife died, but that rule has changed.
When the decedent is a housewife who was
not employed outside the home, the financial
impact on the survivors will not involve
a loss of income, but increased expenditures
to continue the services she was providing
or would have provided if she had lived.
Because jurors may not be knowledgeable
regarding the monetary value of a housewife's
services, experts may aid the jury in this
evaluation |
|
|
| Punitive Damages |
Punitive
damages are awarded in cases of serious
or malicious wrongdoing to punish the
wrongdoer, or deter others from behaving
similarly. In most states, a plaintiff
may not recover punitive damages in a
wrongful death action. There are some
states, however, that have specific statutes
that permit the recovery of punitive damages.
In states that do not explicitly allow
or disallow punitive damages in wrongful
death actions, courts have held punitive
damages permissible. An attorney will
be able to advise you as to whether your
state allows punitive damages. Top
|
| |
|
|
|
|
|
