Losing a loved one is one of the most difficult experiences of anyone’s life. If their death was due to someone’s negligent or wrongful actions, you may experience even greater feelings of grief, anger, and helplessness. You have legal rights in this kind of situation, and you do not have to go through this process alone. You may be entitled to damages through a personal injury claim known as “wrongful death.”

No amount of money can truly compensate your loss, of course, but a wrongful death settlement or award can cover expenses, offer greater financial stability, and provide you with a sense of closure. A wrongful death attorney can advise you about the law in your area and help you prepare a claim. They can negotiate with the insurance company on your behalf and, if necessary, file a lawsuit and advocate for you in court.

What is wrongful death?

Wrongful death is a legal claim that seeks monetary damages from someone who caused another person’s death. This could involve, for example, a car accident, medical malpractice, a workplace accident, or a criminal act. Each state has its own laws that govern wrongful death claims.

Wrongful death based on negligence

Many personal injury cases are based on a legal theory known as “negligence,” which usually consists of the following four parts:

  1. The defendant owed a duty of care to the plaintiff or the general public. For example, a driver has a duty to drive safely.
  2. The defendant breached that duty. A driver might drive recklessly or not pay attention to the road.
  3. The defendant caused the plaintiff’s injury, such as by colliding with the plaintiff’s car after running a red light.
  4. The plaintiff suffered damages because of their injuries, such as medical bills, lost wages, and pain and suffering.

In a wrongful death case, a plaintiff’s main injury is the loss of a family member.

Wrongful death based on other personal injury claims

Not all personal injury claims are based on negligence, such as the following:

  • Intentional actions: A person may recover damages for injuries caused by an intentional act, such as assault.
  • Statutory violations: Some personal injury claims may arise from violations of laws or regulations, such as an employer’s failure to follow workplace safety rules.
  • Defective products: Manufacturers have a legal obligation to make sure their products do not have any defects or hazards that could cause injuries to consumers.

Wrongful death based on a criminal offense

A crime victim’s family members may be able to assert a claim for wrongful death against the perpetrator. A wrongful death action is different from a criminal case, as discussed in more detail below.

State wrongful death statutes

Each state has its own statute that addresses wrongful death claims. Your state might have specific procedures that you must follow before you may file a lawsuit. If you do not follow these procedures, or if you do not file suit by the deadline set by state law, a court will dismiss your case. Certain government agencies might be immune from liability, meaning that you cannot sue them for wrongful death.

How is a wrongful death case different from a criminal case?

Wrongful death cases look similar to criminal homicide cases in some ways, but they are very different. The goal of a criminal case is to determine whether a defendant is guilty of a crime and, if they are found guilty, to determine a punishment. A wrongful death case is about obtaining monetary compensation for a deceased person’s family members.

Prosecutors have a very difficult burden of proof in criminal cases. They have to prove the defendant’s guilt “beyond a reasonable doubt.” A plaintiff in a wrongful death case only has to prove that a defendant is liable for damages by a “preponderance of the evidence.” This means that the plaintiff must show that it is more likely than not that the defendant caused their loved one’s death.

Who can bring a wrongful death claim?

While state laws may vary, a deceased person’s immediate or close family may file a wrongful death claim in most situations. Family members may file a claim or a lawsuit directly, or the deceased person’s estate may file on their behalf. People who may file a wrongful death claim typically include the following relatives:

  • Spouse, including a common-law spouse or domestic partner;
  • Adult children, adopted children, or stepchildren;
  • Minor children, adopted children, or stepchildren through a guardian or “next friend”; and
  • Parents, if the deceased person was unmarried.

Some states may also allow the following people to file a claim:

  • Siblings;
  • Grandparents;
  • Individuals who were financially dependent on the deceased person; or
  • Any individual who suffered financial harm because of the deceased person’s death.

Parents may sue for wrongful death for the loss of a fetus in certain states, although the circumstances vary from one state to another.

What kind of damages are available in a wrongful death claim?

The goal of a wrongful death lawsuit is to compensate the plaintiff or plaintiffs for the losses they have experienced as a result of someone’s death. The amount of damages that a plaintiff may be able to recover will depend on many factors, including:

  • The plaintiff’s relationship with the deceased person;
  • The deceased person’s age, health, and life expectancy;
  • The deceased person’s income; and
  • Any limitations in state law on what the plaintiff can recover.

The process of determining the value of a wrongful death claim can seem harsh, but it is important. A wrongful death claim involving a young and healthy deceased person might be worth more, for example, than one with a deceased person who was elderly and in poor health. A plaintiff who was wholly financially dependent on the deceased person might have a more valuable claim than other possible plaintiffs.

Different types of damages may be available in a wrongful death case. Each type of damage serves a different purpose for the plaintiff.

Economic damages

Economic damages, also known as “financial damages” or “actual damages,” compensate a plaintiff for losses that have or will come directly out of their pockets, including:

  • Medical bills;
  • Funeral and burial costs;
  • Loss of financial support, due to the deceased no longer being able to earn money to support the plaintiff; and
  • Loss of inheritance, based on what the deceased would have saved over the rest of their life for the plaintiff’s benefit.

Non-economic damages

Non-economic damages are harder to prove than economic damages. To establish the amount of lost financial support, for example, a plaintiff can show how much money the deceased person made and how much support they provided. Non-economic damages compensate the plaintiff for the physical and emotional impact of the person’s death, such as:

  • Pain and suffering;
  • Emotional anguish;
  • Loss of emotional support;
  • Loss of parental guidance, especially for a plaintiff who is a minor child; and
  • Loss of consortium, meaning the loss of companionship and intimacy for a plaintiff who is a spouse or partner.

Punitive damages

Some states allow plaintiffs in wrongful death lawsuits to recover damages with the sole purpose of punishing the defendant for wrongdoing. This usually requires proof that the defendant intentionally caused the person’s death, or that they acted recklessly or with “gross or wanton negligence.”

How long do I have to file a wrongful death lawsuit?

State laws establish deadlines to file different kinds of lawsuits, known as the “statute of limitations.” The statute of limitations for a wrongful death lawsuit might vary from state to state, but it is often two or three years from the date of the person’s death.

Some states may set separate deadlines for different types of claims. A wrongful death claim based on simple negligence, such as a car accident, might have a three-year statute of limitations, while one based on medical malpractice might allow four or five years.

Please note that this is the deadline to file a lawsuit. Many wrongful death claims begin with insurance claims. It is important to contact an attorney and begin work on an insurance claim as long as possible before the statute of limitations runs out.

What are some examples of wrongful death claims?

The following examples demonstrate possible scenarios that would support a wrongful death claim:

Automobile accident

A driver runs a red light and fatally hits a pedestrian as they are crossing the road. The driver may be liable to the pedestrian’s family for damages.

Trucking accident

A trucking company threatens to fire a truck driver if they do not continue driving beyond the maximum amount of time allowed by federal long-haul trucking regulations. The truck driver falls asleep behind the wheel and hits a car on the road, resulting in the death of a passenger in the car. The passenger’s family can sue the trucking company for wrongful death.

Premises liability

A retail business knows about a broken step on the stairs between the store’s first and second floor, but fails to repair it or put up signs warning about the danger. A customer trips on the broken stair and falls, sustaining fatal injuries. The business could be liable for wrongful death.

Medical malpractice

An emergency room doctor discharges a patient without checking for a possibly life-threatening complication that could result from the treatment they received. The patient later dies at home from that complication.

Product liability

Despite knowing about a defect in a new model’s brakes, a car manufacturer allows the model to go to market. The brakes fail on several cars, resulting in someone’s death.

Nursing home abuse

Staff members at a nursing home ignore a resident’s complaints about pain and discomfort. The resident’s condition worsens until they are in severe distress. By the time the staff calls for paramedics, it is too late to save the resident’s life.

Do I need an attorney to file a wrongful death lawsuit?

You are not required to have an attorney for a wrongful death lawsuit. Trying to do it all yourself, however, will be a tremendous challenge, especially while you are grieving your loss.

How can a lawyer help me with a wrongful death claim?

A wrongful death attorney has expertise that can be invaluable to your case. They can handle the difficult work of preparing the case and advocating for your rights so that you can focus on healing.

Gathering evidence

You will need a substantial amount of evidence to back up your claim. This may include medical records, police reports, and witness statements. An attorney knows what documentation you will need and how to get it.

Preparing a claim

Preparing an insurance claim involves collecting all of the evidence and calculating how much to demand in damages. A lawyer will know how to prepare and present your claim.

Negotiating a settlement

Insurance companies are not on your side. They know a vast array of tricks to minimize the amount of money they must pay you. Lawyers with experience in personal injury law know these tricks and how to get around them.

Filing a lawsuit

If the insurance company will not budge on a settlement, you may have to file a lawsuit. The requirements for a lawsuit depend on state laws and local court rules. Your lawyer will know how to draft and file the paperwork.

Advocating for you in the litigation process

Your lawyer will make another attempt to negotiate a settlement with the defendant’s lawyer. They will also advocate for you in the various stages of litigation.

Taking the case to trial if necessary

Most lawsuits settle before going to trial. If your case does not settle, a wrongful death lawyer will work tirelessly to convince a judge or jury that you deserve compensation for your losses. 

Act now to protect your rights

Founded more than 50 years ago by legendary litigator Johnnie Cochran, The Cochran Firm is one of the top plaintiffs’ litigation and criminal defense firms in the country. Its experienced personal injury attorneys represent clients who have lost family members due to someone’s negligent or criminal conduct. The firm handles all personal injury and wrongful death cases on a contingent fee basis, meaning that you owe the firm nothing until they recover money for you.

Our call center staff is available 24/7 to talk to you about your case. Contact us today to speak with a Cochran Firm intake specialist or attorney and schedule a free, no-obligation consultation:

Our team will discuss your legal matter with the confidentiality, understanding, and respect you deserve.