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In general, a wrongful death claim is one in which it is alleged that a person died as a result of another’s negligence. The deceased person’s surviving relatives, dependents or beneficiaries may bring suit against the responsible party or parties, seeking monetary damages for their losses. Each state has its own wrongful death laws and not every state follows the same guidelines, principles or rules. A personal injury attorney from The Orlow Firm in Flushing, New York, can advise you on whether you have a valid wrongful death claim and help you pursue that claim against the responsible party or parties.
Wrongful death laws vary from state to state
Some states have “true” wrongful death acts in which the deceased person’s survivors or next of kin are entitled to bring a cause of action for their damages resulting from their family member’s death. Other states have acts that are more properly called “survival actions.” In general, survival actions are brought on behalf of the deceased person for the deceased person’s pain, suffering and other damages resulting from the injuries that caused his or her death.
The individuals who are entitled to bring a wrongful death claim also depends on the jurisdiction. Generally, the primary beneficiaries of the person who has died (often the spouse and children) are able to bring a claim, and in some states the parents of the deceased person may be also designated as beneficiaries. In most states, if the deceased person did not leave behind a husband or wife, children or parents, there may be no one who may bring a wrongful death claim.
In many jurisdictions, it is not necessary that the defendant’s conduct be the sole cause of death. Even when the defendant’s negligence contributes only in part or in tandem with other circumstances to a person’s death, liability may still attach.
Wrongful death damages
- Types of damages. When a defendant is found legally liable for the death of another, the types of damages that may be recovered can also vary greatly. For example, the plaintiffs in a wrongful death case may be able to recover the deceased person’s medical expenses; funeral and burial expenses; lost earnings; and lost benefits (such as pension benefits or medical and health insurance coverage). Additionally, in a few states, the plaintiffs may be able to recover damages for pain and suffering or mental anguish that they experienced as a result of the death as well as punitive damages.
- Calculating damages. The method and manner of calculating damages in a wrongful death action can be complicated. This potential complexity is especially true when trying to calculate the monetary loss to which the plaintiffs are entitled. Monetary loss, sometimes called pecuniary loss, generally includes the survivor’s lost support, contributions and services of the deceased person. The computations for these damages are typically based on the deceased person’s life expectancy and work life expectancy as well as the life expectancies of the beneficiaries and, where necessary, the remaining period of minority of any beneficiaries.
- Multiple beneficiaries. In cases where there is more than one beneficiary, the damages will be distributed among those beneficiaries. Most states allocate the damages among the beneficiaries in accordance with their losses. However, in some states the recovery is divided as spelled out in its wrongful death or intestacy laws.
Defenses to liability in wrongful death cases
In general, a defendant is entitled to raise any defenses in a wrongful death action that could have been raised in an action brought directly by the decedent, had he or she not died. Therefore, if the decedent was contributorily negligent in causing his or her own death, the defendant may assert that defense in the wrongful death action. Also, in most states, if the decedent had already recovered damages, such as in a case where the death was not immediate and the decedent was able to bring his own successful personal injury claim, the survivors may not then successfully bring a wrongful death action and recover for the same injury. There are limitations to this prohibition, and in some situations the survivors may still be entitled to bring a wrongful death action in their names.
Contact a personal injury lawyer
When a loved one dies, the complexities of a legal claim against the wrongdoer can be overwhelming. At this already stressful and emotion-laden time, the assistance of an experienced personal injury attorney at The Orlow Firm in Flushing, New York, who can guide surviving family members through the complex legal maze and help secure compensation for their devastating losses, can be invaluable.
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