What Is Wrongful Death?


Wrongful Death
Virginia’s Wrongful Death Statute of Limitation

When someone acts negligently or recklessly that leads to another person’s death, the law creates grounds for the survivors of the decedent to bring what is called a “wrongful death” lawsuit. In some cases, the responsible party could face criminal charges in addition to a civil lawsuit. Even if a jury acquits the defendant, though, you can sue for wrongful death in civil court.

The things you need to prove for a criminal charge often differ from what you need to prove to establish wrongful death, and the standard of proof for wrongful death in civil court is lower than that for charges in criminal court. Thus, where the state may have lacked the evidence to prove the defendant committed a certain crime, survivors of a wrongful death victim may have enough to prove their case and recover damages.

Circumstances of Wrongful Death

There are many different life scenarios where a person’s wrongdoing can lead to another’s death, and thus there are many different circumstances that may create grounds for a wrongful death lawsuit.

Wrongful death cases often proceed from:

Intentional acts that create grounds for a wrongful death claim are also often criminal, such as kidnapping or trespassing with the intent to harm a person. The state handles criminal charges, leaving it to the decedent’s family to bring a wrongful death lawsuit. Criminal activity resulting in a basis for a wrongful death claim could include breaking and entering, driving while under the influence, or excessive speeding.

Each state has a wrongful death statute to hold those whose negligent, reckless, or intentional acts result in death accountable to a decedent’s surviving family. Thus, a wrongful death statute will generally allow survivors to bring suit against anyone whose misbehavior led to their loved one’s death.

Who Can File a Wrongful Death Lawsuit?

The personal representative of the decedent’s estate brings the wrongful death lawsuit on behalf of the estate. The representative has a limited amount of time after the wrongful death incident, under what’s called a statute of limitations, to bring the wrongful death lawsuit. While the statute of limitations may seem like a long time, it is always best to contact a wrongful death attorney as soon after the incident as possible to secure your right to compensation.

Because only the personal representative can file a wrongful death lawsuit, someone must start the probate process so that the court can approve the personal representative if the decedent designated someone in a will or estate plan. If not, the court will appoint a personal representative. This can take time and can eat up some of the wrongful death lawsuit statute of limitations period.

Recoverable Damages in a Wrongful Death Lawsuit

The personal representative can recover compensation, referred to as economic damages and non-economic damages, on behalf of the decedent’s estate. Once a judge or jury makes a compensation award and the court signs the final judgment, the money is paid to the estate to be distributed to those family members who are eligible to recover compensation for their loss. The court orders compensatory damages—economic and non-economic damages –to make the plaintiffs whole again.

While the money does not bring back a loved one, it can help the family with the financial blows and other impacts they may experience in wrongful death cases, especially if they lose a primary wage earner.

Economic damages may include:

  • Medical expenses incurred from the time of the accident to the time of death, or those incurred during medical malpractice
  • Lost wages, including future lost wages for the family
  • Funeral, burial, and/or cremation expenses

Non-economic damages may include:

  • Pain and suffering, including emotional distress
  • Loss of companionship and support the decedent provided
  • Loss of consortium
  • Loss of household services that the decedent provided

Punitive Damages

In instances where the court finds that the defendant’s actions or inactions were grossly negligent or intentional, the personal representative may recover punitive damages on behalf of the decedent’s estate.

The court orders punitive damages as a punishment for the defendant’s grossly negligent, reckless, or intentional actions or inactions—not to compensate a plaintiff for any tangible expenses or impacts resulting from the wrongful death. For example, a doctor who makes a negligent mistake might not have to pay punitive damages, but a doctor who makes the same mistake because they were drunk or under the influence of illicit substances might be subject to pay punitive damages. Consult with a wrongful death attorney to determine whether you might be eligible for punitive damages in your specific case.

Proving a Wrongful Death Claim

To win in a wrongful death action, the plaintiff—the personal representative in a wrongful death claim—must show the court that the defendant was more likely than not responsible for the wrongful death. The burden of proof is the same as if the decedent was still alive.

Walter H. Emroch Attorney
Walter H. Emroch, Wrongful Death Attorney

Thus, if the personal representative is alleging negligence as a reason for the wrongful death, they would have to prove that:

  • The defendant had a duty of care. In a car accident case, a defendant has a duty to drive safely and legally to avoid injuring others.
  • The defendant breached the duty of care. In a car accident, the defendant might breach their duty of care by driving under the influence, driving while distracted, or by speeding.
  • The breach caused the decedent’s death. In a drunk driving wrongful death case, if not for the defendant’s drunk driving, the decedent would not have died.
  • The decedent’s death caused the damages. Because the decedent died, his or her family lost income, incurred expenses, and experienced other impacts.

Contact a wrongful death lawyer today to find out whether you have a good case and what damages you can pursue for the loss of your loved one.

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