Wrongful Death

When someone dies due to the fault of another person or entity (like a government agency), the survivors can bring a wrongful death lawsuit. Such a lawsuit seeks recompense for the survivors' losses, such as wages of the deceased, lost companionship, medical and funeral expenses. Here's a primer on wrongful death claims -- what they are, who can sue, who can be sued, and what damages may be recovered.

What is a Wrongful Death Claim?

A wrongful death claim exists when a person dies due to the legal fault of another person. The right to file a suit for wrongful death is a relatively new idea. "Common law" (the laws brought to the United States from England) didn't allow for this kind of suit. However, during the twentieth century, state and federal courts created the right to bring a wrongful death action. Every state in the union now has some type of wrongful death legislation.

Wrongful death claims involve all types of fatal accidents from car accidents to complicated medical malpractice, product liability cases and industrial mishaps. Persons, companies, and governmental agencies can be legally at fault for negligent actions (failing to act as a reasonable person should have acted) and for acting in an intentional manner.

Who May Sue for Wrongful Death?

A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent's death. These individuals are referred to as the "real parties in interest". The representative is usually the executor of the decedent's estate. Who qualifies to become a "real party in interest" varies from state to state. Some of those people might include:

Immediate family members. In all states, immediate family members like spouses and children (including adopted children) and parents of unmarried children are entitled to recover under wrongful death legislation. A qualified attorney can readily determine proper standing of parties to bring a suit.

Life partners, financial dependents, and putative spouses. In some states, a domestic or life partner, anyone who was financially dependent on the decedent, and a "putative spouse" (a person who had a good faith belief that he or she was married to the victim) have a right of recovery. Partners in same-sex living arrangements may also be entitled.

Distant family members. Some states allow more distant family members, such as brothers, sisters, and grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action if the child was dependent upon income from the deceased.

All persons who suffer financially. Some states allow any person who suffers a financial deprivation from the passing of the decedent to bring a wrongful death action for lost care and/or support, even if they are not blood related or married to the victim.

Parents of a deceased fetus. In some states, the wrongful death of a fetus can be the basis of a suit. In other states, parents cannot bring a wrongful death action to recover for financial and/or emotional stress as the result of the death of a fetus. In such states, the parents are entitled to bring a wrongful death action provided that the child had been born alive and died subsequently. Check your state law and consult with an experienced wrongful death attorney to determine if such action is allowed in your state.

Who May Be Sued for a Wrongful Death?

Wrongful death lawsuits can be brought to bear against a wide variety of persons, companies, government agencies, and employees. For example, in a car accident which involves both a faultily constructed roadway and a drunken driver, a wrongful death action might include such defendants as:

the negligent driver or employer of the driver at fault
the designer and/or builder of the faulty road
a government agency whose responsibility it was to provide adequate hazard warnings that caused the accident
the manufacturer, distributor, or installer of a faulty or dangerous
component on the vehicle
the persons who sold, served, or gave alcohol to his/her impairment as a driver, or
the owner of the premises whereat the alcohol had been served.

Immunity for Government Agencies and Employees

In some cases, certain persons or agencies may be deemed legally immune from a wrongful death lawsuit. That means they cannot be sued for wrongful death. Who might be entitled to immunity again varies from state to state. For example, in some situations, government agencies and employees might be immune from a wrongful death lawsuit, or even family members in certain circumstances.

Recent federal laws provide immunity from wrongful death claims to defendants in railroad collisions and certain product liability cases including medical devices. Such immunity might also extend to large pharmaceutical drug companies who manufacture defective vaccines laced with mercury as a preservative that cause convulsions, autism and sometimes outright death in children.