Losing a loved one due to negligence or intentional act of another person can be painful. In such a situation, you and your family have the option of filing a wrongful death suit. It can be quite hard to handle such a lawsuit all by yourself. That's why you need the intervention of a professional attorney to help you in the proceeding. The Personal Injury Attorney Law Firm understands the pain of losing a loved one and can offer legal advise and representation during such a situation. Even so, you need to find relevant information about the case to follow the lawsuit accordingly. This article provides an overview of how to build your case in a wrongful death lawsuit.
The Definition Of Wrongful Death Lawsuit
Under the California Code of Civil Procedure 377.60, close members of those that have lost their loved ones through a wrongful death can recover the damages that result from the act. Some of the things that close relatives can claim include:
- Expenses made in funeral and burial
- The amount that the deceased earned and
- Compensation for any companionship or support the deceased could have offered
Based on the damages that relatives can claim, wrongful death becomes similar to an action taken during the loss of consortium under California laws. This law applies when a registered partner or spouse claims compensation for the lost companionship and intimacy due to the loss of his or her loved one through wrongful death.
Wrongful death is also usually coupled with California Survival's cause of action provided in the Civil Procedure 377.30. In this case, the victim or those representing the victim brings a cause of action to compensate for the loss suffered by the victim.
Qualification For Victims In Wrongful Death Claims
Anyone who has suffered death through the cause of a wrongful act or negligence of another is a victim. However, the party responsible for the wrongful death should have a substantial factor in the cause of death. For instance, in medical malpractice, if the probable cause of death was 50% or less, such a situation does not count as wrongful death.
Also, the California Supreme Court has held that the death of a fetus or unborn child is not actionable as provided under the wrongful death law. This is after the case of Justus Vs. Atchison (1977) that led to the conclusion that a fetus is not a probable element of wrongful death since it is not a living person. Therefore, the conclusion describes that wrongful death only counts until there is a live birth.
Besides that, a death that resulted from a justifiable homicide does not count as wrongful death, as well. For instance, if one dies when committing a felony, the California Penal code Sect. 197 prevents one from bringing it as a wrongful death action.
Finally, a death where the responsible party had a duty of care to the victim and his or her act or omission of a significant factor led to the death; it may be considered as a suicide. Such a situation also does not qualify as a wrongful death case.
Acts That Support The Claim
The fundamental elements that support an action that can support a wrongful death claim include negligence, recklessness, gross negligence, or an intentional act.
How The California laws Define negligence
California laws define negligence as a failure to consider reasonable care to prevent harm to yourself or another party. Therefore, a person becomes negligent when he or she:
- does something that anyone who is reasonably careful cannot do while in a similar situation
- fail to do something that a reasonable person would do while in a similar situation
In a wrongful death claim, the jury usually checks whether the party responsible for a death failed to do what a reasonable person would have done owning him or her the duty of care.
How California Laws Define Gross Negligence
California laws expect everyone to have a duty of care for the other person. Therefore, the duty obligates one to use ordinary care or skill to manage his or her property to avoid harming the other person. Failing to observe the duty of care becomes negligence, which sometimes is referred to as ordinary negligence.
However, in some contexts, California Laws only consider the duty of care to avoid gross negligence other than ordinary negligence. The two most occurrent situation that are:
- When the law imposes the conduct as gross negligence or culpable conduct
- When the culprit assumed the risk that results from ordinary negligence
From the definition, there is no precise consideration of gross negligence as provided by the California laws. However, the court describes gross negligence as:
- A high level of negligence
- The failure to exercise the level of care that a careless person would use
- An extreme assumption of the ordinary standard of a conduct
- An assumption of the least level of care
How California Laws Considers Recklessness
California laws consider recklessness as a high level of liability that is much greater than negligence. This disregards failing to take precautions in action as recklessness.
In that case, reckless involves the deliberate disregard of the high probability of a potential injury that can occur to another person.
From the understanding of the explanation provided above, wrongful acts can include different actions but not limited to:
- Assault and battery
- Car accidents
- Hit by a DUI driver
- Elder abuse or neglect
- Medical malpractice
- Murder or manslaughter
Claimants In A Wrongful Death Claim
The California laws allow certain people to file for a wrongful death lawsuit. The code of civil procedure 377.60 restricts the responsibility to file for the wrongful death to members who are close to the deceased. Some of the people allowed to file the lawsuit include:
- The surviving domestic partner or spouse
- The surviving children. Note that the law allows any minor who've lived with the deceased for a minimum of 180 days. Also, they should've depended on the deceased for at least 50% for their financial support. This applies even if the minor was not a biological or legal child to the deceased.
- If there is no close surviving member, then anyone who has entitlement to the victim can bring a lawsuit to court. Some of the members that fall under this category include the siblings to the victim.
The statute also permits anyone else who was financially dependent on the deceased to bring the case to the court. Those members include:
- The parents to the deceased
- stepchildren of the victim
- the putative spouse of the deceased and any kids born out of the putative spouse
In most cases, there are many conflicts that arise when settling the death of the deceased. Therefore, it is always important to seek the intervention of a designated person who will resolve the estate on behalf of every eligible survivor.
Damages In A Wrongful Death Claim
The civil procedure 377.60 does not sufficiently provide enough information on the damages that a survivor can claim from a wrongful death. However, it still argues that the damages that a survivor should recover should match the level of support that the deceased could have reasonably provided when he or she was alive.
Therefore, the damages that the survivor can claim is a shorter explanation of the:
- The life expectancy of the deceased during the time of the wrongful act or
- the life expectancy of the survivor during the time of the wrongful act
Note, the damages that every surviving spouse can manage to get depends on the personal loss of everyone eligible for the claim due to the situation. For that reason, the California laws have given the court discretion to determine the extent of recovery for each eligible claimant.
It requires thorough evaluation of the situation to recover damages from a wrongful death. Even so, there are a couple of things that one can recover from such a loss. Some of the things that the survivor can recover include:
- a reasonable expense of the burial and funeral
- an estimated amount of the income and any other benefit that the deceased could have earned in their lifetime before the incident occurred
- Any financial support that the household to the deceased could have provided
- Any loss of services around the house such as cooking, care for the kids, landscaping, cleaning and every task that the deceased contributed to his or her family
- Loss of intangible support such as moral support, love, affection, attention, and guidance
In some cases, you might find that external parties could have contributed towards the funeral of the deceased. Also, you could find that the parents to the deceased depended on him or her and need compensation as well. All these circumstances are quite reasonable and can count on the recoverable depending on the decision made by the court.
How To Calculate Damages In A Wrongful Death Claim
After you have decided on the kind of damage to recover from the wrongful death, the next big thing is calculating how much you will be getting from the claim. It can be easy to calculate the cost of things such as funerals and home services, but others can be quite hard to calculate if they are intangible.
Also, it does not mean that every cost of your expenses is recoverable, especially when you went beyond the reasonable amount to throw a funeral for your loved ones. In such a case, the court is only obliged to compensate a portion of your total amount.
All the same, it is quite challenging to calculate the amount of damages to recover if there are many factors that one has to take into account. Some of these factors include:
- The deceased age before the incidence and how long you expected him or her to work
- The educational level, skills and any other abilities of the deceased
- Any potential raise, promotion and other income adjustments that the deceased could have achieved throughout his lifetime and career
- Level of inflation during the deceased career
- The benefit of retirement that one could have received
To factor in all these aspects, it requires the intervention of professional economic experts to reach an accurate estimate of the damages that the survivor should recover. There is no fixed way provided by the law to determine the recoverable in non-economic losses. So, the jury can settle on any amount if it reasonable according to the evidence provided and the common sense of the event.
Interestingly, the court does not consider non-economic damages such as grief, pain, or suffering, or sorrow that resulted from death.
Also, it can be tough to determine how long the deceased could have lived. Therefore, the jury usually considers facts such as general life expectancy, lifestyle, and occupation of the deceased.
Damages That Are Not Available In A Wrongful Death Case
Some losses are not explicitly included in a wrongful death lawsuit. The rationale behind the omission of these elements is to recover them in a survival action. The damages that one cannot claim in a wrongful death do not include anything to do with the losses incurred by the family members.
Instead, the losses include expenses that were incurred before the deceased died. For instance, losses that the survivors incurred through medical expenses before the death or pain experienced by the deceased. It also included any punitive damages if the responsible party actions were egregious.
Elements Of A California Wrongful Death Claim
Since the California laws allow those that are close to a deceased person to recover the losses that resulted from the demise, there is a distinct process that one should follow. It is not a simple task to handle this kind of procedure due to the demands that one has to meet.
In California, you need to prove that the death occurred due to neglect from another party and show enough proof of burden. Proof of responsibility is the amount of evidence that one must present to the jury or the court to prove that the wrongful death occurred without any reasonable doubt. The law requires one only to verify that the death was at least 51% wrongful.
Referring to the description provided above, here is a detailed view of the elements of a wrongful death claim in California.
Sufficient Proof Of Negligence
As much as there are many causes of wrongful death, the survivor should provide sufficient evidence to support such a claim. Therefore, the survivor should prove elements such as:
- The duty of care that the liable person had over the victim
- The responsible party breached his or her duty of care
- The breach of duty of care led to the death and
- The death led to losses to you and other claimants as well.
Each type of accident defines the duty of care. Here are a few examples that show the duty of care and how one can breach them.
- A driver has the duty of care to reasonably drive his or her passenger and take due caution during bad weather. However, whenever the driver drives the vehicle drunk, violate traffic laws, and conduct other careless acts, then this becomes a breach of the duty of care.
- A company that sells products should warn its customers about any potential risks and ensure that they meet the highest level of safety as well. Therefore, whenever it produces defective products, failed to warn its users about the risk, among other aspects, it becomes a breach of duty.
- A medical doctor should provide the highest level of care to his or her patients in a reasonable manner, which is similar to the level of caution that a reasonable practitioner would do. However, if the doctors fall short of the level and standard of care, it proves that this is a breach of duty.
- A property owner must maintain his or her property is free from any hazardous elements. So, if the owner knew that the hazard is not fixed, ending up affecting a visitor, it becomes a breach of the duty.
As soon as you establish the breach of duty, you need to present evidence to the court to prove that it contributed to the death of your loved one.
Proving Intentional Harm
There are some wrongful deaths that do not arise from negligence but intentional violence. The elements that prove the intentional acts are as follows:
- The offender had the intention of committing a crime
- There was no consensual contact with the victim and
- The contact between the offender and the victim led to a fatal harm
In most cases, this applies when the death resulted from manslaughter or homicide, which end up being handled separately from an ordinary wrongful death lawsuit.
Proving the Damages
Soon after verifying that the death of your loved one was a result of negligence, the next step is to prove that you sustained damages due to the loss. As provided above, the survivor has the right to claim both economic and non- economic damages but is limited to damages for emotional distress. However, the survivor can claim compensation as an intentional infliction or negligence of emotional distress against the liable party.
Difference Between Wrongful Death And Survival Action
Under the California Code of Civil Procedure 377.30, wrongful death is usually interchangeably combined with a survival action. However, there is a significant difference between the two. In a wrongful death lawsuit, the survivors get compensated for their losses while a survival lawsuit can allow the heir to sue on behalf of the estate of the deceased.
In a survival lawsuit, the estate of the deceased person can get compensation for two types of losses which are:
- claims that are unrelated to the death, which the deceased had the right to pursue before the date of his or her death or
- Claims for the injuries that the deceased survived and nursed for some period before dying.
It is also essential to note that unlike wrongful death, survival lawsuits can include awards for punitive damages. Also, note that unlawful actions and survival actions are often used together if the demise of the deceased person rose from wrongful acts.
Statute Of Limitations In Wrongful Deaths
The California laws allow two years for the survivor or eligible claimant to file a wrongful death lawsuit. However, the statute provides an exception when the discovery of the apparent death of the deceased took time. This exception is known as the discovery rule and usually provide an extension of the period that it took to discover the death. This means if the discovery took two years, then the time extends to four years.
Also, if the wrongful death resulted from a public entity, the claimant has 45 days to file a claim, which typically the public body will deny. In that case, the claimant has an additional six months to file the lawsuit again.
If the claimant is a minor, probably filing a wrongful act for a deceased parent, the minor has to wait until he or she turns eighteen and will have exactly two years to file the lawsuit.
For medical malpractice, the law provides one year from the date that the plaintiff discovered the injuries sustained by the deceased person. Also, the statute allows three years to file the case from the date of injury. These limitations are under the California Civil Code 340.5.
Find A Personal Injury Attorney Law Firm Near Me
There are many demands that result from a wrongful death claim. In such a case, it is reasonable to seek legal counsel and representation to ensure that you get the right compensation. The kind of attorney that you pick has much impact on the results that you will get. That's why you need a professional law firm to represent you. We at The Personal Injury Attorney Law Firm are confident that we can deliver services that match your needs. Reach out to The Personal Injury Attorney Law Firm today at 619-625-8707 to have one of our attorneys attend to your needs.