Wrongful Death
It is always very sad when a loved one dies. When the death was caused by another person’s negligence, the sadness is compounded. Although no amount of money can bring a loved one back, beneficiaries may be able to receive compensation for their economic and noneconomic losses by filing a claim for wrongful death or survival actions.
A Wrongful Death Claim in California
California law defines wrongful death as “the death of a person caused by the wrongful act or neglect of another.” A lawsuit to collect damages due to the wrongful death can be brought by the decedent’s beneficiaries which are those who have one of the following relationships with the decedent.
- The surviving spouse or domestic partner. For a domestic partner to be eligible to file a lawsuit, the partnership must have been legally registered.
- The surviving children or issue of deceased children.
- A putative spouse, children of the putative spouse, stepchildren, or parents, if at the time of the death, they were dependent upon the decedent. A putative spouse is one who believed in good faith the marriage was valid even if it is determined the marriage was void or voidable.
- A minor who had resided with the decedent for 180 days prior to the death and was dependent on the decedent for at least one-half of his or her support.
- The personal representative of the decedent.
To prevail on a wrongful death claim, the beneficiary must prove all the elements the decedent would have had to prove in a personal injury claim if he or she had lived.
Potential Defendants in a Wrongful Death Action
Anyone whose negligence was responsible can be sued for wrongful death. Some examples include, but are not limited to:
- Health care providers whose action or inaction amounted to medical malpractice.
- Vehicle drivers, including car, rideshare (Uber/Lyft), motorcycle, truck or other commercial vehicle, bus, train, or boat drivers and airplane pilots. If the negligent driver was driving on behalf of the employer at the time of the accident, the employer may also be responsible for paying damages (respondeat superior and/or vicarious liability).
- Manufacturers, distributors, installers, and sellers of defective or unsafe products.
- Counties, cities, municipalities, and other government entities responsible for maintaining safe roadways.
- A person who acted criminally in a way that caused the death.
A wrongful death action must be brought within two years of the death. If a governmental entity is a defendant, you generally must file your claim with the government within six months of the death.
There may be exceptions to the two-year statute of limitations. For example, if the person responsible is charged with a criminal offense, the wrongful death claim will not proceed until the criminal case is completed, either by a jury verdict or guilty plea. Even if the person is acquitted of a crime, the wrongful death action can still go forward.
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Damages for Wrongful Death: Economic
“Damages” refers to the compensation the beneficiaries are entitled to receive from the negligent party or parties responsible for the death. The damages available for a wrongful death claim are divided into economic and noneconomic. Economic damages include:
• Medical expenses incurred by the decedent as a result of the negligence.
• Funeral and burial expenses.
• Lost wages and earning potential of the decedent that were expected to aid the beneficiaries depending on the life expectancy of the decedent at the time of his or her death.
• The loss of gifts decedent is expected to have given the beneficiaries.
• The value of household services the decedent would have provided the beneficiaries.
• Other tangible economic losses that can be specifically identified.
Damages for Wrongful Death: Noneconomic
Noneconomic damages are intangible and include:
- The loss of the love, care, companionship, and moral support the decedent would have provided.
- The loss of the decedent’s training and guidance, protection, and assistance.
- A spouse, putative spouse, or domestic partner may receive damages for loss of consortium.
Although rare, punitive damages may also be awarded to punish the criminal or negligent person whose negligence rose to the level of egregious conduct. Usually, punitive damages are awarded in a survival actions, and not in wrongful death claims.
Survival Actions Versus Wrongful Death
When a person lives for a time after the negligent act that caused the death, the personal representative of the estate may file a survival action on behalf of the decedent. This is to benefit the estate of the decedent, not just those beneficiaries who are entitled to bring a wrongful death lawsuit.
A survival action advances the interest of the decedent in a lawsuit as though the decedent had not died and was pursuing his or her own personal injury action. The estate may recover damages for medical expenses incurred due to the wrongful act and lost wages as a result of the negligence act which caused the death, loss of future earning capacity, and other damages to which the decedent would have been entitled to if she or he had lived. Damages are not legally available in survival actions for the decedent’s pain and suffering; however, punitive damages can be recovered if malice, fraud, or oppression is proven. Statute of limitations for survival actions is 2 years from date of injury (like wrongful death), or 6 months after death (unlike wrongful death), whichever is later.
Contact a California Wrongful Death or Survival Action Lawyer
If you think you may have a wrongful death or survival action claim, contact us for a free consultation as soon as possible.
