A wrongful death lawsuit can be brought following a fatal accident by the representative of the deceased’s estate, usually an immediate family member of the deceased. In some states, multiple family members such as parents, spouses and children are entitled to bring a lawsuit individually as well. Who can sue, and for what types of damages, depends on the state laws that apply to a case where death has occurred. Our attorneys have successfully handled these types for estates and families in a number of states across the country.
Compensation in a wrongful death lawsuit tends to be greater if the surviving family members are monetarily affected. Some states allow certain family members to be compensated for mental anguish resulting from their loss. Many times, the estate’s representative may bring a “survival action” together with the wrongful death suit in order to recover such damages.
Cases Where Injury Results in Death
Whenever someone dies from the negligent conduct of another person or company, the law allows for a certain type of personal injury lawsuit, known as wrongful death (by the representative of the estate, family or heirs depending on the state law that applies), as well as a lawsuit brought by the estate for the deceased’ own injuries, meaning those damages the decedent suffered prior to and as a result of the death. The latter type of case is known as a “survival” action–i.e. the injuries of the deceased that the law recognizes survive a person’s death and allow for recovery. As a practical matter, both of these lawsuits or “actions” are invariably joined together in one case. Moreover, some states permit the recovery of punitive damages in cases of intentional malicious, or knowing wrongful conduct that resulted in the death.
The principal measure of damages in a wrongful death action is fair and just compensation for for various economic and non-economic damages. Depending on the state laws that govern the case, these damages may range from mental anguish to loss of consortium of family members, to loss of society, as well as lost wages and loss of future earning capacity, and/or reasonable and necessary medical care and services, and the like.
With respect to lost earnings, these may be awarded even if the deceased was not working at the time of his or her death, because the law looks at the deceased’s past history and ability to have worked or, in the case of children, the likelihood of gainful employment after reaching the age of majority, had they not died.
In a survival action, the damages focus on the injuries which a person would have been able to sue for had he or she not died. So for example, since a person can sue for their own pain and suffering, their estate is entitled to do so for the conscious pain and suffering that occurred as a result of the injury prior to death. Additionally, funeral and burial expenses are typically costs of a person’s estate, and so these are a part of the survival action as well. Likewise, some states allow for the recovery of financial contributions that a person would have reasonably been expected to have left to their estate upon natural death, such as savings, that were interrupted or prevented by the negligent conduct of another.
Punitive or Exemplary Damages
Punitive or exemplary damages are intended to punish the wrongdoer and deter others from behaving similarly. In South Carolina, “punitive damages may be awarded only upon a finding of actual damages.” While the legal action is referred to as wrongful death, it is simply a personal injury case where the injury amounted to death. So, just like in injury cases, wrongful death actions involve situations like car accidents, medical malpractice, defective products, dangerous premises, etc., etc.
The basis for most wrongful death and survival action cases is usually negligence. A wrongful death attorney will need to show that the wrongdoer’s action, or failure to act in a responsible manner, caused the deceased’s death. A wrongful death lawyer must also have access to experts who can testify with regard to the determination of the pecuniary losses to plaintiffs in the case. In light of the statute of limitations, (i.e., deadlines by which a wrongful death lawsuit must be filed), it is important to contact an experienced personal injury attorney as soon as possible. Such an attorney will be able to discuss your legal rights and the potential merits of pursuing a wrongful death and survival action case. There is no cost or obligation to you in scheduling a free case evaluation.
Contact a Charleston wrongful death lawyer now.