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The Complete Guide To Wrongful Death Lawsuits

by Harry Brown / February 2, 2018

The wrongful death claims are usually initiated against a defendant who has allegedly caused a person’s death. Whether the incident was an accident or intentional harm.

The wrongful death claims let the family of the deceased victim file a lawsuit. This is usually filed by an estate representative for the family of the surviving victim as well as other parties.

The wrongful death claim is a very special kind of personal injury lawsuit which can only be made when any party is killed due to the other party’s negligence or maybe after an intentional act.

There are so many incidents like this that happened, and the family of the victim is not able to get the right verdict that they deserve because of their limited knowledge about the legal process. So here is what you need to know about wrongful death lawsuits.

What is a Personal Injury Law?

The Personal Injury Law is also called the tort law. It covers the situations where a person’s body, mind as well as emotions are hurt due to someone else’s negligence. This includes wrongful death or where the injury from the incident is fatal. The case will begin when the injured party or the plaintiff sue the person or maybe the business or called the defendant.

With the personal injury lawsuit, it claims that the defendant is the reason or the cause of the plaintiff’s injury or death and demands compensation. This is usually in the form of monetary payment or also called damages. Basically, a personal injury law covers any case where a person is injured. 

What is a Wrongful Death?


If an individual is killed because of wrongful conduct, the family of the victim and the other beneficiaries may be able to file a wrongful death action against the person or the people who are responsible for the incident.wrongful_death_lawsuits.jpg

This Tort Law is governed by the statute. But the wrongful death statutes differ from every state. Here is the link to Georgia's CodeBut generally, this will define who may sue for wrongful death and if there are any limits applied to the damages. 

Even before, the wrongful death statutes were created to provide the needed financial support for the widows and orphans and also to motivate people to exercise extra care to prevent injuries.

A wrongful death action is separate and very different from criminal charges. And neither of these two proceedings affects or controls the other. This only means that the defendant acquitted of murder can still be sued by the victim’s family in a civil action for wrongful death.

Wrongful Deaths May Be INTENTIONAL or UNINTENTIONAL.


These actions cause injury which results in death. For example, a blow to the head during an argument which will later result in the death of the person is a type of injury that is intentionally caused.

Another example is when the driver of a car unintentionally causes the death of another person in an accident can be sued for negligence. And if a person who violates the local law neglects to enclose a swimming pool which causes an accident of a child can be held responsible for his actions.

You must remember that the wrongful death statutes do not apply to unborn fetus since the individual has no legal status until he is born alive. But an exemption is, when an infant is born alive and later on passes away because of the injury caused before he is born, this can lead to wrongful death.

The Wrongful Death Lawsuit: The History


The Historical Approach - Before the modern approach became official, you will not be able to sue someone in the civil court for the death of a relative or someone close to you even though it is caused by another person. The suspect can still go to jail, but the family of the deceased will not be receiving any monetary payment for the damages.

The Modern Approach - This is when every state has mandated that everyone should follow the laws that replaced the historical approach. These days, most wrongful death cases are now allowing a representative of the decedent or also a decedent’s estate to sue for the civil damages. This includes the losses incurred for grief, sorrow, as well as mental suffering.

Popular Systems Used By Wrongful Death Statutes

The Lord Campbell System

The “Lord Campbell’s Act” is the basis of most wrongful death statutes in most states. This was proposed in 1846 by the British Parliament. Based on this Act, any wrongful death claim can only be made by the beneficiary only specified by the statute. This is usually based on the relationship of the person to the decedent.

The benefits will only be given to these specified individuals. If in any case that there are no living relatives, the right will be passed on to the members of the next class. If sadly there are no members on any classes at this point, the claim for the wrongful death will not be possible.

The designated beneficiaries:

  • Immediate family members who include the spouse, the children, any adopted children, and also the parents of unmarried children.
  • Any distant family members like the siblings and also the grandparents.
  • The parents of the deceased fetus.
  • The domestic partners
  • Any financial dependents
  • Members who suffer financially because of the death.
The “Loss-To-Estate” System

A wrongful death claim in other states can only be made by the decedent's estate. This is to compensate for any losses that were incurred because of the death of the decedent. The lawsuit will be brought about by the personal representative of the estate.

This representative will be appointed by the probate court who will administer the assets of the decedent. The representative will bring the suit under his or her own name, but the amount that will be recovered will be subject to a trust for the disbursement to the beneficiaries. This will again differ in different states.

Wrongful Death: When Is It Applicable?


A wrongful death claim in only applicable when a victim who was supposed to file a personal injury claim is killed because of the negligence of the person at fault or it can because of an intentional act.

Here are the situations that wrongful death can be applicable.

  • The victim is intentionally killed.
  • The victim dies because of medical malpractice. If for example, a doctor fails to diagnose a condition and if the doctor was too careless in providing care and results to death, it is considered as a wrongful act and can be taken against the doctor.
  • Vehicular accident death because of negligence. When a victim dies because of the car accident injuries, a wrongful death claim is applicable.

Who Are Entitled To Compensation Following A Wrongful Death?


Individuals entitled to wrongful death compensation will depend on the state statute.

There are statutes that provide for the recovery by the surviving spouse, or next of kin, or maybe the children. There are some states that allow a surviving spouse to take action even when they are separated unless the spouse is proven guilty of desertion or maybe the spouse did not provide support.

There are some instances that the children will file a lawsuit for the wrongful death of their parents. And parents will also be able to file a lawsuit for the wrongful death of their children. There are some states that only minor children will be allowed to sue the one responsible for the wrongful death of their parents. And there are some state statutes which will not allow the parents to file a suit for an adult child who is already financially independent or married.

Wrongful Death Claim: Who Can File?


The claim is brought about by an estate representative of the victim. This will be on behalf of the survivors related to the victim. Remember that the considered survivors would different in every state.

A spouse should be able to take action for the wrongful death on behalf of the deceased husband or wife. For the parents of the minors who were killed, they should also be able to bring a wrongful death action.

The argument in some states is if the parent of adult children, or if adult children can sue the responsible person for their parents, or whether the grown siblings can bring a wrongful death action.

The case where the relatives left are cousins, aunts, and uncles, or even grandparents are also the same. The case is, the more distant the family relationship is, the more difficult it will be to decide if you are allowed to claim for the wrongful death.

What Must Be PROVEN When Filing A Wrongful Death Lawsuit?


For the defendant to be liable for the wrongful death claim, the plaintiff should be able to meet the proof required. Here is an article that talks about evidence.

This will be the same proof that the deceased victim would have provided if he or she lived.

By using “negligence” against the defendant, this goes to show that the defendant needs to provide the victim their deserved care.

This also means that the defendant did not meet his required duties where these duties were the cause the death of the victim. This also means that the death of the victim caused the damages which the plaintiff now in trying to recover.

How to Prove “Negligence” In Wrongful Death Case


Usually, the damages that are made incurred in a wrongful death case is different from the other standard negligence case. Still, the plaintiff should be able to prove this in the lawsuit. 

The things that needed proof will be duty, breach of duty and also the causes and damages. You can learn more about these here.

For example: Let's say, the defendant was driving negligently when the incident happened which resulted in the death of the decedent.

Fatal Car Accident on Highway
Proving Duty.

The defendant will only be accused of negligence when the defendant owes the decedent the required duty of due care. Due care is defined differently depending on the case. This means that keeping another person safe or making sure that nothing will harm the other person. For the example mentioned above, the plaintiff would argue that the defendant needs to have a duty of care when driving a vehicle.

For wrongful death cases, the judge and not the jury will decide whether the defendant owes a duty of care. Before the decision is made, a number of factors will be considered.

The factors will include the consequences of public policy when it comes to finding a duty with the same cases. The predictability of the harm and how it occurred will also be considered. Aside from this, the connection of the defendant's actions and the harm will also be taken into consideration.

Proving Breach of Duty

If it is determined that duty is needed, the plaintiff should be able to present any evidence that the defendant breached the said duty.

Based on the example given above, say the plaintiff is able to provide a proof that the defendant is not paying attention when on the road when the accident happened, this is a statement is worthy enough to prove that the defendant is not a responsible driver, and by this, the driver breached the duty of due care on the said incident.

Proving The Defendant Caused the Accident

Then the plaintiff should be able to prove that because of the breach of duty, it resulted in losing the life of the decedent. With the example above, the plaintiff should prove that it was the defendant’s that hit the decedent.

Otherwise, the jury will not be able to prove that the breach of the duty of the defendant is what caused the accident. If for example the decedent is already severely wounded, and the defendant’s breach of duty caused harm and killed the decedent, the jury will decide that the defendant caused the death of the decedent.

Proving the Damages

Together with the breach of duty as well as causation, the plaintiff should prove that the decedent suffered damages. If a breach of duty and also causation is present in the wrongful death case, the damages will be obvious as of the death of the decedent. But for other negligence cases, the plaintiff would be able to prove the other elements but would fail to prove the suffering of the victim and will likely lose the case. 

The IMMUNITY from a Lawsuit


There are certain exceptions when it comes to the rule of wrongful death claims. One of the traditional exceptions is applied to the family members. This is known as the “family immunity.” This means that the person is safe from the lawsuit which can be done by any member. This is to promote the unity of the family and also to prevent any fraudulent activity amongst the family members.
However, this rule has prevented the children from collecting money from the insurance. This is why many states have decided not to use the rule of family immunity. Some of these limitations are retained like allowing an adult child to sue a parent but should not allow a minor child to do this.

The Defendant’s Responsibility - Wrongful Death Damages


For the person to be able to sue for wrongful death, there should be proof that the defendant’s acts have caused the decedent's injuries and death. This only means that the wrongful acts of the defendant have made natural reactions that have led to an injury which caused death.

Compensatory Damages - Each state law decides about the number of damages that can be covered by the statutory beneficiaries. Compensatory Damages are intended to make sure that it covers the amount of the money that was lost like the damages in the wrongful death actions.

The plaintiffs may be able to recover for the medical and the funeral expenses which will be in addition to the amount of the economic support that you will receive if the decedent lived. This amount will sum up to compensate for the grief as well as the loss of services and companionship.

Punitive Damages - This will be given in a wrongful death case if ever the actions of the defendant are proven reckless. Punitive Damages are meant to teach the defendant a lesson for his actions and will be awarded by the jury. The damages recovered will be distributed to the survivors. This will be divided based on the less of the beneficiary.

There are different categories of the losses for the damages of a wrongful death claim where a survivor will be able to receive compensation.

The categories are as follows:

  • The pain and suffering of the deceased person before he or she passed away. This is also called a survival claim.
  • It also includes medical costs where the deceased victim has spent because of the injury before death.
  • The funeral as well as the burial costs.
  • The loss of income of the deceased person.
  • The loss of inheritance because of the early death.
  • The average value of the services that the decedent could have provided.
  • The loss of love and companionship to spouse and children.

What is Considered For The Computation of Wrongful Death Damages


There are certain factors to be considered when determining the amount of the damages for the wrongful death. In order to compute the compensation, the salary of the decedent that he or she could have earned will be multiplied to the number of years of the possible number of years that the decedent could have lived but will also be adjusted with inflation.

There are actual tables used as a guide for the average life expectancy depending on the age and gender. The health status, as well as the nature of his or her work, will also be taken into consideration by the jury.

TIPS in Choosing A Lawyer for a Wrongful Death Lawsuit


There are some important things that you have to know when choosing a lawyer to handle your wrongful death lawsuit.

Contact your local bar association and ask for a list of the best lawyers who are experts in wrongful deaths lawsuits, also search on Google and check out Attorney reviews.

If you know a medical provider, you can also ask for a referral that other patients have used as well. If you have friends who have had a wrongful death case experience, personal injury, or maybe medical malpractice, they are also a good source of information of the lawyers that they also trust.

Experience is a Must


When hiring a lawyer, you need to find someone who has the best experience in this kind of cases. There are people who have been lawyers for decades but still, they don't have enough experience.

Aside from this, the person should also be dedicated to the job. You will not need just any kind of attorney. You need to find someone who has specialized in personal injury especially in wrongful death cases.

Here are some other questions to ask your personal injury attorney.

Has a Good Reputation in the Community

The best lawyers usually have the best reputations as well. But you must remember that not all popular lawyers are good at what they are doing. You can start reading online reviews.

You can mostly find a good story about a lawyer that you might just have been looking for. It is also best if you can check your state bar association. This is to make sure that the lawyer does not have any bad history.

Trust Your Instincts

We always have that instinct about how we feel about a person even in just the first meeting. This is very important so you will know if this is the person that you would want to work with.

You should be able to discuss the frequency of your meetings, method of communication, your odds of winning, how you can help to win the case, and so much more. These are just simple questions, but it will help you decide how you feel about the person.


Losing a loved one is not something that anyone should have to experience. But accidents are inevitable. When this happens, you should know your rights and what settlements or benefits are you entitled to.

Do not be a victim and let the person who is responsible for your loss win over you. Know what you need to do.

Let this guide help you along the way. If you need further assistance, you can contact The Brown Firm Wrongful Death Attorneys for free legal advice.

[Original Article Published Here]

Tags: Georgia Wrongful Death Attorney Personal Injury Questions Wrongful Death Lawsuits

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