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Wrongful Death

From lawbrain.com

The taking of the life of an individual resulting from the willful or negligent act of another person or persons.

If a person is killed because of the wrongful conduct of a person or persons, the decedent's heirs and other beneficiaries may file a wrongful death action against those responsible for the decedent's death. This area of <a href="Tort Law">tort law</a> is governed by statute. Wrongful death statutes vary from state to state, but in general they define who may sue for wrongful death and what, if any, limits may be applied to an award of damages.

Originally, wrongful death statutes were created to provide financial support for widows and orphans and to motivate people to exercise care to prevent injuries. A wrongful death action is separate and apart from criminal charges, and neither proceeding affects nor controls the other. This means that a defendant acquitted of murder may be sued in a civil action by the victim's family for wrongful death.

An action for wrongful death may be brought for either an intentional or unintentional act that causes an injury that results in death. A blow to the head during an altercation that later results in death is an injury that is intentionally caused. The driver of an automobile who unintentionally causes the death of another in an accident may be held liable for <a href="Negligence">negligence</a>. An individual who, in violation of local law, neglects to enclose a swimming pool in his yard can be held liable for the omission or failure to act if a child is attracted to the pool and subsequently drowns.

Wrongful death statutes do not apply to an unborn fetus, as an individual does not have a distinct legal status until he is born alive. If an infant is born alive and later dies as a result of an injury that occurred prior to birth, an action may be brought for wrongful death.

Contents

Who May Sue

The individuals entitled to sue for wrongful death are enumerated in each state statute. Many statutes provide for recovery by a surviving spouse, next of kin, or children. Some states permit a surviving spouse to bring an action even in the event of a separation, but not if the surviving spouse was guilty of desertion or failure to provide support.

Ordinarily, children may bring suit for the wrongful death of their parents, and parents may sue for the wrongful death of their children. In some states, only minor children are allowed to sue for the death of a parent. Similarly, some state statutes preclude a parent from recovery for the death of an adult child who is financially independent or married.

Immunity from Suit

In the absence of a legal exception, the surviving beneficiaries may sue any person who caused the injuries that precipitated the death.

A traditional exception to this rule has been applied to family members. This doctrine is known as family immunity and means that an individual is protected from suit by any member of his family. This rule was intended to promote family harmony and to prevent family members from conspiring to defraud an insurance company. However, its strict application prevented children from legitimately collecting insurance money. Therefore, many states have discarded the strict rule of family immunity. Some limitations have been retained, such as allowing an adult child to sue a parent but not allowing a minor child to do so.

Wrongful death actions filed against state or local government will be allowed to go forward only if the state has waived its <a href="Sovereign Immunity">sovereign immunity</a>, a doctrine that bars lawsuits against the government. Since the 1960s a majority of states have relinquished the right to claim sovereign immunity in many instances. Therefore, if a child drowns in a municipal swimming pool, the parents may be able to sue the city for wrongful death based on negligence.

In states that allow wrongful death actions to be brought against government, there is generally a strict notice requirement. The plaintiff must promptly notify the government that a lawsuit is contemplated in order to give the government an opportunity to estimate the potential losses to its budget. The time period for filing a notice may be as short as 30, 60, or 90 days. Failure to file a notice of claim precludes the possibility of a lawsuit.

In one of the most widely followed wrongful death suits involving a governmental entity, a federal judge in Texas allowed a suit to be brought against the federal government by family members of the Branch Davidians, a religious


sect based near Waco, Texas. About one hundred plaintiffs sought $675 million in damages from the federal government, alleging that the government used excessive force in a standoff with the group at its compound. The standoff ended on April 19, 1993, when the sect's compound, which was believed to contain a hoard of weapons, burst into flames, killing everyone inside. Included among the deceased were leader David Koresh and 17 children. The judge, Walter Smith, later found that the federal government bore no responsibility for the incident and was not liable.

The Defendant's Responsibility

In order to sue for wrongful death, it must be proven that the acts or omissions of the defendant were the proximate cause of the decedent's injuries and death. This means that the defendant's wrongful conduct must have created a natural, direct series of events that led to the injury.

Damages

The law of each state governs the amount of damages recoverable by statutory beneficiaries. <a href="Compensatory Damages">Compensatory damages</a>, which are intended to make restitution for the amount of money lost, are the most common damages awarded in wrongful death actions. Plaintiffs who prevail in a wrongful death lawsuit may recover medical and funeral expenses in addition to the amount of economic support they could have received if the decedent had lived and, in some instances, a sum of money to compensate for grief or loss of services or companionship.

Determining the amount of damages in a wrongful death action requires the taking into account of many variables. To compute compensation, the salary that the decedent could have earned may be multiplied by the number of years he most likely would have lived and can be adjusted for various factors, including inflation. Standard actuarial tables serve as guides for the life expectancy of particular groups identified by age or gender. The decedent's mental and physical health, along with the nature of his work, may also be taken into consideration by a jury.

Damages cannot always be calculated on the basis of potential earnings because not everyone is employed. Courts have set minimum yearly dollar amounts for the worth of an individual's housekeeping and for <a href="Child Care">child care</a> services.

<a href="Punitive Damages">Punitive damages</a> may be awarded in a wrongful death case if the defendant's actions were particularly reckless or heinous. Punitive damages are a means of punishing the defendant for his action and are awarded at the discretion of the jury. Any damages recovered are distributed among the survivors subject to the statutes of each state. Courts frequently divide an award based on the extent of each beneficiary's loss.

In 1997, in the wrongful death action brought against <a href="O. J. Simpson">O. J. Simpson</a> by the families of Ron Goldman and Nicole Brown Simpson, the former football star was required to pay a total of $33.5 million in punitive and compensatory damages. Although he was acquitted in 1995 of murdering his ex-wife and Goldman, a Superior Court jury in Santa Monica, California, found him liable for their deaths. As a result, Nicole Brown Simpson's estate received an award of $12.5 million, while Goldman's estate received $13.475 million and Sharon Rufo, Goldman's mother, received $7.525 million. Simpson retained custody of his two children with Nicole; the children were beneficiaries of her estate.

Limitations on Recovery of Damages

Some states limit the amount of money that can be recovered in a wrongful death action. For example, many state and local governments that waive sovereign immunity set a maximum amount of damages that can be recovered for a wrongful death. However, a number of states do not limit the amount of damages for wrongful death.

International treaties limit the amount recoverable for the death of passengers on international airlines. <a href="Workers' Compensation">Workers' compensation</a> laws, which exist in some form in every state, place limits upon an employer's liability. Employers must carry insurance for their employees that compensates workers based on a legal schedule for each type of injury or for death. In return for carrying such insurance, employers are immune from negligence suits. The result is that the amount workers can recover is limited, but recovery is guaranteed for injury or death sustained in the course of employment.

Further Readings

Dombroff, Mark A. 2000. Evaluating and Reserving Wrongful Death and Personal Injury Cases. Tucson, Az.: Lawyers & Judges Publishing.

Critical Issues—Wrongful Death: Annotations from the ALR System. 1990. Rochester, N.Y.: Lawyers Cooperative.

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