Information below excerpted by Pamela S Evers Assoc Prof of Business Law University of North Carolina Wilmington from materials available on www findlaw com For educational purposes only Monday Jun 27 2005 http public findlaw com Wrongful Death Overview A wrongful death occurs when a person is killed due to the negligence or misconduct of another individual company or entity An action for wrongful death belongs to the decedent s immediate family members often called distributees The most common distributees are surviving spouses and children and sometimes parents A suit for wrongful death may only be brought by the personal representative of the decedent s estate Every state has a civil wrongful death statute or set of statutes which establish the procedures for bringing wrongful death actions Actions for personal injury conscious pain and suffering or expenses incurred prior to the decedent s death are also brought by the personal representative The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent s will Elements of a Wrongful Death Lawsuit In order to bring a successful wrongful death cause of action the following elements must be present The death of a human being Caused by another s negligence The survival of family members who are suffering monetary injury as a result of the death and The appointment of a personal representative for the decedent s estate A wrongful death claim may arise out of a number of circumstances such as in the following situations Medical malpractice that results in decedent s death Automobile or airplane accident Occupational exposure to hazardous conditions or substances Death during a supervised activity Damages in a Wrongful Death Lawsuit Pecuniary or financial injury is the main measure of damages in a wrongful death action Courts have interpreted pecuniary injuries as including the loss of support services lost prospect of inheritance and medical and funeral expenses Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent s death If the distributees paid or are responsible for the decedent s funeral or medical care they may also recover those expenses Finally a damage award will include interest from the date of the decedent s death Determining Pecuniary Loss When determining pecuniary loss it is relevant to consider the age character and condition of the decedent his her earning capacity life expectancy health and intelligence as well as the circumstances of the distributees This determination may seem straightforward but it often becomes a complicated inquiry keeping in mind that the measure of damages is actual pecuniary loss Usually the main consideration in awarding damages is the decedent s circumstances at the time of death For example when an adult wage earner with dependants dies the major parts of the recovery are 1 loss of income and 2 loss of parental guidance The jury may consider the decedent s earnings at the time of death the last known earnings if unemployed and potential future earnings Adjustments in the Jury s Award In a wrongful death action the jury determines the size of the damages award after hearing the evidence The jury s determination is not the final word however and the size of the award may be adjusted upward or downward by the court for a variety of reasons For example if the decedent routinely squandered his income this might reduce the family s recovery Similarly the courts will reduce a jury s award if the decedent had poor earnings even though he was young had great potential and supported several children At the same time a jury may award lost earnings despite the decedent s having been unemployed if he had worked in the past and if the plaintiff presented evidence of the decedent s average earnings while employed If the plaintiff fails to present such evidence of the decedent s average earnings the court may set aside the jury s damage award and order a new trial Using Expert Testimony to Determine Pecuniary Loss Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family Until recently this testimony was not admissible when a housewife died but that rule has changed When the decedent is a housewife who was not employed outside the home the financial impact on the survivors will not involve a loss of income but increased expenditures to continue the services she was providing or would have provided if she had lived Because jurors may not be knowledgeable regarding the monetary value of a housewife s services experts may aid the jury in this evaluation Punitive Damages Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer or deter others from behaving similarly In most states a plaintiff may not recover punitive damages in a wrongful death action There are some states however that have specific statutes that permit the recovery of punitive damages In states that do not explicitly allow or disallow punitive damages in wrongful death actions courts have held punitive damages permissible An attorney will be able to advise you as to whether your state allows punitive damages Survival Actions for Personal Injury In addition to damages for wrongful death the distributees may be able to recover damages for personal injury to the decedent These are called survival actions since the personal injury action survives the person who suffered the injury The decedent s personal representative can bring such an action together with the wrongful death action for the benefit of the decedent s estate In a survival action for a decedent s conscious pain and suffering the jury may make several inquiries to determine the amount of damages including 1 the degree of consciousness 2 severity of pain and 3 apprehension of impending death along with the duration of such suffering Getting Help If a loved one has dies after an accident or injury caused by the negligence or misconduct of another individual company or entity you may be entitled to bring a legal action for wrongful death against those responsible Especially in light of time deadlines for filing such a lawsuit you should contact an experienced personal injury attorney as soon as possible to discuss your legal rights and your potential case Monday Jun 27 2005 Wrongful Death Cases Children and the Elderly
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