Wrongful death: No one wants to think about the loss of a loved one under any circumstances, but when a beloved family member passes away due to the negligence of another person, the victim’s family has the right to sue for “wrongful death”.
An attorney with experience in times of turmoil
While difficult and overwhelming for the family, an experienced board certified civil trial attorney can help mitigate the stress and emotional turmoil caused by a wrongful death. Experienced board certified legal counsel knows the ins and outs of the legal system.
It’s important to act quickly, because the statute of limitations in the state of Florida is (2) two years from the time of death. If you exceed the statute of limitations, the case will be dismissed no matter how valid the claim.
After your loss, the bills add up
An experienced attorney can obtain financial compensation on behalf of the family. Nothing can replace the loss of a loved one, but compensation can help to reduce stress, medical bills, and funeral expenses incurred due to someone else’s negligence that ultimately resulted in loss of life.
The standard of proof, civil vs. criminal in personal injury law
The first thing to know about a wrongful death lawsuit, is that regardless of liability the negligent person may not be convicted of a crime in association with the death. However, in this article we will be looking at the area of law known as wrongful death from the standpoint of a personal injury attorney.
The reason for separating the two is simple: There are multiple differences between lawsuits that are filed by a board certified civil trial attorney and wrongful death lawsuits that become criminal cases and ultimately, convictions.
The first thing we'll approach is preponderance of evidence vs. beyond a reasonable doubt.
The standard of proof: a closer look
In civil cases, "standard of proof" is what the law calls a preponderance of evidence.
To better understand this in the context of a wrongful death lawsuit and, as it pertains to personal injury law, let’s look at the legal definition of the term:
"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 the context of a civil lawsuit in regards specifically to personal injury, the court would use "preponderance of evidence" to determine the standard of proof, not "beyond a reasonable doubt", which is found in criminal court cases.
However, as we go more in-depth you'll find that the standard of proof is just one area of a wrongful death lawsuit and that many factors play into a successful outcome for the injured party. Several elements go into your attorney successfully obtaining compensation for your tragedy.
A wrongful death lawsuit: the whole picture
Next, let’s list the puzzle pieces necessary to make up an entire picture of a wrongful death lawsuit:
- The death of a human being
- The death must be caused by the negligence of another or with intent (to cause harm, to maim or kill)
- Surviving family who suffer financial injury because of the loss
- Appointing of a personal representative for the deceased’s estate
Circumstances: the who and why
The circumstances surrounding what makes up a wrongful death lawsuit make up the rest of the legal puzzle:
- Medical malpractice
- Nursing home abuse and/or neglect
- Occupational exposure that are not considered occupational hazards (i.e.: toxic substances, hazardous conditions, negligent security)
- Criminal actions
- Death during an activity with supervision
The outcome of a wrongful death lawsuit: damages for financially injured survivors
Financial injury is the measure of damages used in a wrongful death lawsuit. This is also known as “pecuniary injuries” and can include: loss of support, termination of inheritances, medical and funeral expenses for the deceased, and any other financial needs that are no longer met for the family after the death.
It’s also important to look at how “pecuniary loss” is determined by law, and in the next section we will do so.
“Pecuniary loss”, financial injury, and damages
When financial injury is determined, age, health of the deceased prior to the negligence that caused the injury, the deceased’s earning capacity, their life expectancy and intelligence are all factored in the compensation you hope to ultimately receive. The surviving family members circumstances are also taken into consideration during this phase of the case.
While it may seem like a simple process, it’s more complicated than it looks. This is where your board certified civil trial attorney’s experience and know-how when it comes to navigating personal injury cases is of utmost importance.
Determining the circumstances
The main thing the court will look at when determining damages to be awarded are the circumstances surrounding the deceased at the time of death. Simply put:
- Loss of income; if unemployed at the time of death, a jury considers the deceased’s last known earnings and awards based in part on this information, as well as the potential for future earnings, now lost
- Loss of a parent: parental guidance is considered when determining damages to be awarded
- If the decedent had dependents at the time of death, their children are considered as they were the adult wage earner in the home