Wrongful death litigation. It’s difficult to think about the loss of a loved one. Even under natural circumstances (old age, after a long and happy life), It’s difficult to think of losing someone close to us. However, when a person dies due to the recklessness of another, the surviving family is left in turmoil. This mental anguish brought upon the surviving family after wrongful death may entitle them to pursue legal action.
During wrongful death litigation, there’s a complex process that must be followed to ensure the victim’s surviving family is compensated.The most important aspect of a wrongful death claim is the justice owed for a catastrophic loss.
A victim of wrongful death may have been the sole provider for their family, leaving them not only in emotional anguish, but in financial ruin as well. When a child loses the parent that was providing for him or her, that child suffers not only the catastrophic outcome of no longer having Mom or Dad, but the anxiety of worrying about who will be there for their needs. This, too, is considered when litigation is brought after a wrongful death.
Within this article, a comprehensive followup to Wrongful Death: The Law After Tragic Loss we’ll provide further insight into what must happen in order for a family to seek the justice owed to them in a time of tragedy.
Wrongful death law can be difficult to litigate without experience. Aside from the emotional aspect of meeting families during the worst time of their lives, the lawyer is also presented with the the knowledge that regardless of liability the negligent party (“defendant”) may not be convicted of a crime in association with the death they caused. However, in our wrongful death articles we attempt to look at this area of law from the standpoint of a personal injury attorney.
The reason for separating civil and criminal is simple: There are many complex differences between lawsuits that are filed by a board certified civil trial lawyer and wrongful death litigation that becomes criminal cases–only criminal cases will turn into convictions.
How are finances affected after wrongful death?
An experienced lawyer is there to seek the maximum compensation on behalf of the family. Surviving family must be provided for after a breadwinner passes away. However, always remember nothing can replace the loss of a family member. Compensation helps to reduce stress, medical bills, lifetime mental health and grief counseling, and funeral expenses incurred by a family after they experience a wrongful death.
What happens after an accident that results in wrongful death?
When a family suffers a wrongful death, a Board Certified lawyer should be retained as quickly as possible. Handling sensitive cases such as wrongful death must be reserved for Board Certified lawyers. These are lawyers who understand the emotional and mental toll taken on the surviving family members. The sensitive subject of death is not easy for families left behind. Mental anguish occurs when the time comes to share the excruciating and confidential details with their lawyer. Maintaining the sensitivity and professionalism needed to take a case all the way to trial is best achieved by a Board Certified lawyer.
It’s important that once retained, the lawyer acts quickly on behalf of the family. The statute of limitations in the state of Florida is (2) two years from the time of the victim’s death. Once exceeded, the statute of limitations will cause the case to be dismissed by the judge no matter how valid the claim.
What is the “standard of proof”?
“[…]the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other.”
Looking at this principle in the context of Personal Injury law, the court would use “preponderance of evidence” to determine the standard of proof. “Preponderance of evidence” is used in civil trial in lieu of “beyond a reasonable doubt”. The latter is found in criminal cases.
The standard of proof is just one area of wrongful death law and that many factors must align for a successful outcome. In these cases, successful means justice is granted to surviving family members and they are fairly compensated.
Wrongful death factors
The factors that must align for wrongful death litigation can be summed up as follows:
- A person passes away
- The death must be caused by the recklessness or negligent actions of another or with the sole intent to cause harm, maim, or kill the victim
- Family left behind who are then forced to suffer financial ruin due to losing a provider
- Appointing representation for the decedent’s (victim’s) estate
The circumstances surrounding the death make up a large portion of the case as well:
- Medical malpractice
- Nursing home abuse and/or neglect
- Occupational exposure that isn’t considered occupational hazards (i.e.: toxic substances, hazardous weather conditions where the victim was forced to work under the threat of possible job loss, negligent security)
- Criminal actions
- Death during a supervised activity
Wrongful death circumstances
One aspect of a wrongful death the court will look at when determining damages are the circumstances surrounding the death. These factors under the law include (but are not limited to):
- Loss of income or lost wages: if the decedent was unemployed at the time of death, a judge or jury will factor in the deceased’s last known earnings. Future earnings will be factored in if the victim was only temporarily out of work.
- Loss of a parent: parental guidance is another factor strongly considered when determining damages to be awarded. During wrongful death litigation a legal guardian will be determined by the court to care for him or her. This guardian must be able to provide similar insight, love, and life lessons that Mom or Dad could provide.
- Dependents: Did the deceased had any dependents at the time of his or her death? Those dependents are factored in, as the deceased was the adult breadwinner in the home.
How is a wrongful death verdict determined?
Financial injury is the measure of damages used in wrongful death litigation. This measure used by the judge is also known as “pecuniary injuries”. The judge will consider several important factors before determining damages. The factors taken into consideration include: loss of support, termination of inheritances, medical and funeral expenses for the decedent. Also included are any financial needs that are no longer able to be met for the victim’s family.
Lastly, it’s important to look at how “pecuniary loss” is determined within the context of Personal Injury law.
What is “Pecuniary loss”?
Once financial injury has been determined by the judge, age, health, earning capacity, life expectancy and intelligence of the decedent are factored in. This is compensation the family can hope to ultimately be granted. The surviving family members living circumstances are also taken into consideration during this phase of wrongful death litigation.
While it may seem like a forthright process, wrongful death litigation is more complicated than it appears (thus why only experienced lawyers should take the lead in wrongful death cases).