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When Should You File a Wrongful Death Lawsuit?

Thursday, November 28, 2019

When someone you love dies, it can be challenging to see the next steps forward. If the death was a freak accident or caused by something other than personal recklessness, you are probably wondering if there is any way in the world to make things right. Do you go to the police, or have the police already been and gone? Do you file a complaint? Can you file a civil lawsuit against the cause of your loved one's death if the legal system won't prosecute?

Today, we're here to answer that question. For anyone wondering if they can or should file a wrongful death suit in response to the death of their loved one, the criteria are fairly clear. Follow along with us as we explore the basics of wrongful death and you will find the answer to whether a wrongful death suit is right for your situation.

What is Wrongful Death?

Wrongful death is the legal term for a death that should not have occurred. A death that, if everyone was doing their jobs and being responsible, would not have occurred. In other words, it's a death for which blame lies somewhere. And that blame can be applied legally, if not criminally. The police will only open a criminal trial if the death was caused by blatant criminal action - like intentional murder or drunk driving. For all other types of incidental but not faultless deaths, the victims are responsible for taking the case to civil court to find justice.

Therefore, a wrongful death suit is the pursuit of justice. Holding the party responsible for the death accountable, even if their actions were not officially criminal. The result is almost always a money award to the surviving family members to help ease the pain and financial suffering of the loss of the deceased.

Determining Liability After a Death

The next question is one of liability. Liability means "legal responsibility" and is how the law determines if someone's death was just an accident or if someone else was legally responsible in a way that could have prevented the death. Here's a quick run-down of the most common forms of wrongful death liability.

Death Caused by Another's Actions

If someone else did something that caused the death, but their action wasn't criminal, then you may be able to sue them based on personal liability. A distracted driver pulled into the intersection while texting and hit the deceased. A motorboat cuts off a jet-ski in violation of the marina rules, a commuter opens their parked car door and 'doors' a cyclist, killing them. These are examples of personal liability where the defendant will be held accountable for absent-minded, irresponsible, or reckless behavior that caused the death.

Death Caused by Unsafe Property

A property owner is liable for injuries and deaths that occur on their property, to varying degrees of responsibility. The primary form of property-based negligence is if the property was somehow unsafe for it's intended use. An un-salted parking lot where someone slips and cracks their head. An unsafely stacked pile of merchandise that falls and crushes someone. Or a cracked unrepaired step that causes someones' foot to slip as the step down the stairs. These are all examples where property owners have created a potentially deadly situation through negligence.

Death Caused by Negligence of Responsibility

Another form of negligence liability is one where death is caused by the failure of responsibility. A four-wheeler rental that fails to inform customers on the safe use of the vehicle, a driving instructor who does not take an ailing student back up to the surface, or a daycare worker who failed to keep an eye on the children.

Death Caused by Breach of Contract

Then there are situations where the deceased had every reason to believe the liable party would ensure their safety through a contractual agreement. They may have needed certain safety equipment installed before a stunt, equipment that was not installed by the time of the event, for example.

Death on the Job

Then there's death that occurs on the job. In some states, your family may be eligible for death benefits through worker's comp. But these top out, don't pay emotional damages and close the door on suing the employer for harm-causing decisions. Instead, you may want to file a wrongful death suit where you could have a strong case that the employer was responsible for the circumstances of your loved' one's death.

Close Family Member Eligibility

Finally, there's the question of who can file a wrongful death suit. Most people don't know this, but only very close relatives can file the suit and be the recipient of any monetary rewards. The first tier is the surviving spouse or children. If they decline or are unavailable to file, parents may file. If they decline, siblings may file. And if they decline, domestic partners and more distant relatives may file. But the right to file goes in that order. 

If you are a friend and want to file on behalf of distant relatives, that is also a legal responsibility. But you will not be awarded the damages, those go to the family.

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Should you file a wrongful death suit? Here at Freeman & Freeman, we believe in finding justice for deaths that the criminal court can't address. If the case of your dead loved one is within these circumstances, then filing a wrongful death is the best way to get that justice. For more information, contact us today!


When Should You File a Wrongful Death Lawsuit?

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