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Wrongful Death

What is a Wrongful Death claim?

A Wrongful Death lawsuit alleges that the decedent was killed as a result of the negligence (or other liability) on the part of the defendant, and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant's conduct.

This type of claim is different from a normal negligence lawsuit, which is filed by the person injured for the resulting damages. Originally under "common law" (the general legal principles passed from England to the United States over hundreds of years), a Wrongful Death claim did not exist based upon the reasoning that the claim died with the victim where there was no way to compensate for damages. The surviving family members then could not claim damages from the person who caused the victim's death. Over the years, states have passed "Wrongful Death statutes" that provide compensation for persons who may have been damaged from the death of the victim as well as an incentive to act carefully and safely. Today all fifty states have some form of a Wrongful Death claim action in force.

While states' "Wrongful Death Statutes" were drafted independently of each other and are often unique, they all follow the same general principles. A Wrongful Death claim generally consists of four elements: (1) the death was caused, in whole or part, by the conduct of the defendant. (2) the defendant was negligent or strictly liable for the victim's death. (3) monetary damages have resulted from the victim's death. (4) there is a surviving spouse, children, beneficiaries or dependents.

Who can file a Wrongful Death claim?

This depends on your state's statutory language, but generally immediate family members (i.e. spouses, children and parents) can pursue a Wrongful Death claim (although minors, until 18 years of age, may require a "guardian ad litem" to represent their interests in court). In addition, some states may also extend the potential group of plaintiffs to grandparents, legal dependents, or members of the extended family.

What kinds of damages are recoverable in a Wrongful Death claim?

The following damages may be recovered in a Wrongful Death action:

Depending on the jurisdiction, some of the listed damages may be barred or restricted by statute. Also, some of the listed damages may be hard to prove and thus be considered too speculative by the court. As a result, they may be struck or restricted. Punitive damages may require a higher level of proof.

Depending on your jurisdiction, plaintiffs may be able to recover interest calculated from the time of death, the time the damages were incurred, or from the time of the filing of the lawsuit. Finally, most of the damages for future loss (such as the victim's anticipated earnings) will be reduced.

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