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General Legal Concepts of Wrongful Death

The law concerning the death of a human being at the hands of or as a result of some negligent action or inaction by another person has historically been divided into two distinct legal categories, criminal and civil. Each state and the federal legal system has its own version of these concepts.

In the criminal context, the person accused of causing the death maybe arrested and charged with a variety of crimes anywhere from murder to negligent homicide (unintended killing.) These cases are prosecuted by the government, usually a county District Attorney’s office. If convicted, the offender may be fined, given probation, sentenced to prison or even death, depending on the circumstances and whether the charge was an infraction, misdemeanor, or felony, the possible charges upon which the conviction is based.

In the civil context, the death of a human being is usually termed “wrongful death.” This term means that a person has died as a result of the negligent fault of another, either through improper but unintentional action or inaction. The offending party may have violated a statute or what is known as the common law, a concept developed in England for the recognition that some actions require a remedy. The remedies for this kind of death range from administrative proceedings against the negligent party for violating a government code or for monetary damages suffered by the victim’s immediate family. The remedies available in any type of wrongful death case are essentially the same.

In an administrative proceeding, a governmental agency can hold hearings to determine if the wrongdoer should be fined or lose a license to perform the activity, do the work, or sell the product that caused the death. There are no damages which a private person can obtain in this context.

A private claim by the immediate family of the victim includes only money damages. Money damages include costs of medical care the victim incurred before death, funeral expenses, lost financial support (present and future), and the loss of love, care, comfort and society the family members had with the victim These damages are both economic and non- economic, that is one such as lost financial support can be calculated with reasonable accuracy, while the loss of the relationship cannot be measured by any standard except that which maybe fixed by the circumstances of the relationship.

Money damages are paid for by the wrongdoer’s insurance, if covered under their insurance policy. If the wrongdoer is uninsured, then the damages maybe obtained directly from the wrongdoer (if they are solvent) or, possibly, from your own auto or homeowner’s insurance contract. Usually, the victim’s pain and suffering before death is not an element of
damages, though this can be under certain scenarios, which you should talk about with a lawyer.

Civil Wrongful Death Specifics Determining Monetary Damages

1. Suppose a middle age married man with children provides financial support to his family and is killed by someone else’s negligence in an auto collision. Money damages would include the medical bills incurred, his funeral expenses, the financial support (salary, insurance, and other monetary benefits) he would have provided to his family over his estimated lifetime, and his family’s loss of the relationship they had with him. The other driver’s insurance and, possibly your insurance policies, would be used to pay for the damages.

2. Assume a 5 year old youngster in foster care dies instantly when he falls off a swing while unattended at the foster parents’ home, in violation of state regulations. He had no medical care since he died instantly. The youngster had been placed in foster care for child sexual abuse and has 2 natural parents and some siblings. Depending on the circumstances, the economic damages would likely only be for funeral expenses and the loss of the relationship the child had with his family. In this case, damages would be paid by the state foster agency and/or the foster parent. This situation is vastly different from example 1 because the damages are much more difficult to assess. “While a child may have had a longer life expectancy, his or her future financial service to the family and relationship to his natural family is questionable.

But in each example above, there is a claim to be made. In either of these cases or those cited below, you would need the advice of a competent personal injury lawyer to sort out what type of claim to make.

Examples of Wrongful Death

There are many examples of wrongful death cases: victims who have been killed in crashes where one driver’s neglect of traffic or other laws causes the wreck and subsequent death of the innocent person, including the other driver, any passengers, or innocent bystanders. Examples of these kinds of negligence may include but are not limited to:

Motor vehicle accidents

  • One driver runs a red light and strikes another car, killing people in one or both cars;
  • A driver is distracted when talking on a cell phone causing his/her car to drift into the path of other people, whether pedestrians, bicyclists, or other motorists;
  • A truck driver falls asleep at the wheel and careens into a family on vacation;
  • A drunk driver drives the wrong way and plows head-on into another person;
  • An incompetent driver accidentally hits the gas pedal instead of the brake;; and drives into someone’s house killing someone watching television in their living room;
  • A person hauling items not properly tied down which then fall off onto the road causing a fatal accident.

Nursing home neglect or abuse

Nursing home neglect or abuse is another area where wrongful deaths occur. People neglected or mistreated in nursing homes who die as a result of medical negligence or abuse are common. Often there is a failure to follow feeding and medication protocols. Nurses and aides can drop elderly people who break bones and quickly die from complications.

Medical Malpractice

Hospital and physician medical malpractice can cause death. There are too many factors to list here. If you believe your loved one has been killed by medical negligence, immediately consult with a personal injury lawyer.

Defective products

Defective products often kill people even when they are properly using the product. Some examples of product liability wrongful death cases include but are not limited to:

  • Severe burns suffered from explosions of defective gas containers or other devices using flammable substances;
  • Suffocation of children from plastic bags or crib bumpers and pillows;
  • Ingestion of medications which have not been proven safe;
  • Spinal cord injuries suffered from defective steering or braking devices intended to assist disabled drivers become mobile;
  • Amputations caused by unguarded moving parts on machinery.

Governmental agency and employee abuse or neglect

Excessive and unreasonable use of force or neglect by police of prisoners which kills a person is actionable under state and federal law. It is important in a case like this to make sure that you immediately contact a civil rights lawyer or personal injury lawyer in order to preserve rights to compensation and to preserve evidence. Since the police control the evidence of the abuse, absent a citizen witness who comes forward with evidence to assist you, it is essential to see to it that evidence is preserved by making the proper demands on the law enforcement agencies involved in the incident and the ones investigating the incident. This would also include contacting any medical personnel who maybe witnesses to the injuries sustained.

A jail’s or prison’s deliberate indifference to serious medical needs of detainees of convicts which results in death maybe grounds for compensation. If the custodial personnel refuse to treat or delay treatment where treatment is needed to protect the inmate or to keep them from suffering adverse health consequences, the individuals and the government can be held responsible for wrongful death monetary damages.

“Where a person has been abused and killed by the law enforcement authorities described above, the surviving family members may also make a claim for the pain and suffering the victim suffered. This is over and above the damages economic and non- economic damages usually limited by wrongful death statutes. Such pain and suffering damages can only be obtained though through use of civil rights laws in conjunction with a wrongful death claim. Again, it is necessary to consult a personal injury or civil rights lawyer to analyze the claim.

An important note on government wrongful death cases is that when any wrongful death or even a simple injury claim is made against a governmental entity or employee, a governmental tort claim notice must be provided to the entity within a certain period of time, usually within a matter of several months, though not all entities have the same time requirements. This notice formally tells the government department and its employees that you intend to sue. Unless one of these notices is filed within a short period after the incident, you may lose all rights to compensation. This is another reason why it is essential that any claim against the government or its employees or agents be made with the assistance of a competent personal injury or civil rights lawyer in a timely manner.

Industrial or work related accidents

Many people who work for someone else, whether in private industry or for the government, are covered for injuries and death by a state or federal worker’s compensation system This is a no-fault system set up to compensate workers who have been hurt on the job. (Please see our Workers’ Compensation section.)

Often, a worker is hurt on the job by someone who does not work for the same employer or is, by some means unconnected with the worker’s job. For example, let’s say a flower delivery truck crossing an intersection and a semi truck unlawfully barrels into the delivery truck injuring the delivery person. Although the delivery person maybe covered by workers’ compensation benefits, he may also be able to recover money from the trucker’s insurance. This is what is called a “third party case.”

‘Why is this important? It is important because often the workers’ compensation benefits do not cover all medical expenses or lost income; and it does not cover damages for pain and suffering that the delivery person goes through or has to live with. While the delivery driver is entitled to recover all his damages from the trucker’s insurance, assuming the truck is insured, then the driver will have to repay his workers’ compensation insurer a portion of what he recovers in the third party case. But the delivery driver may receive more money if he combines the third party case with the workers’ compensation case. We can give you more information on the interplay between the civil justice system and the worker’s compensation system.

Product defects

Every day there is a news story about how someone dies or is badly injured in an accident from a poorly designed car or a defective crib. Designers and manufacturers are supposed to test their products for consumers’ safety. If the product is unsafe and the manufacturer or retailer sells the product anyway, this breaches the trust consumers are entitled to have in things they buy. This is why when a product fails and causes people to be hurt, the law provides a remedy. This is commonly called product liability.

There are governmental regulations governing the design and construction of many of products. While governmental agencies can sanction manufacturers with fines for creating poor products, and this may help society as a whole over time, the truth is that one way to make sure bad manufacturers become more responsible to consumers is to make them pay for hurting innocent people who have paid good money for a product they believed would not cause them grief.

We have handled defective product cases ranging from Ford Explorer rollovers to disabled person’s driving systems to defective appliances. The damages to be awarded include economic and non-economic losses for the harm caused by the defect. In addition, if the company knew it was putting out a defective and dangerous product which then caused injury/death, punitive damages may be awarded.

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