Wrongful Death

Wrongful death is defined as "the taking of the life of an individual resulting from the willful or negligent act of others.

If an individual dies because of the wrongful conduct of a someone, the decedent's heirs and other beneficiaries can file a wrongful death action against them. This area of Tort Law is codified in state statutes. Wrongful death statutes differ from state to state, but they usually define who may sue for wrongful death and what, if any, and for what amount of damages.

The original statutes provided financial support for widows and orphans and, not to punish, but to motivate people to exercise due caution to prevent injuries. A wrongful death action is not a criminal charge, and can run concurrent with a criminal proceeding. Neither action can affect or can control the other. This means that despite a "not guilty" verdict in a criminal case, the defendant may nonetheless be sued civilly by the victim's family for wrongful death.

Intentional or unintentional acts are grounds for an action for wrongful death. A blow to the skull during a fight that results in death is an injury that is intentionally caused even if there was no intent to kill. The drunken driver of an automobile may be held liable for negligence if a wrongful death results. An individual who violates of local law by failing to enclose his swim pool in his back yard may be held liable for the omission if a toddler wanders by, falls in and consequently drowns.

Wrongful death suits cannon be made to apply to an unborn fetus, as an unborn individual has no standing before the law. However if an infant survives its birth and dies later from an injury received prior to birth, an action can be brought for wrongful death.

Can You Sue?

The individuals with legal standing to initiate a wrongful death suit are specified by state statute. They are usually limited to the surviving spouse, next of kin, or children. In some states a surviving spouse is permitted to bring an action even if legally separated, provided an arrangement of support had existed between them.

Children can usually bring suit for the wrongful death of their parents, and conversely, parents can sue for the wrongful death of their children. In most states, only minor children are generally allowed to sue for the death of a parent. Likewise, some state statutes exclude a parent as entitled to recovery for the death of an adult child who was financially independent or married.

Immunity from Suit

If there are no legally defined exceptions, the surviving beneficiaries may sue any person who caused the injuries that precipitated the death. Usually wrongful death actions filed against state or local government go forward only if the state has waived its Sovereign Immunity, a doctrine that bars lawsuits against the government. Usually a complaint must first be filed with the government entity to allow for the possibility of an administrative settlement. Sovereign Immunity is basically an outdated carryover from the medieval doctrine of The Divine Right of Kings. (We know how our Founding Fathers felt about The Divine Right of Kings. They had a bloody revolution over it and slaughtered the adherents to this idea) . Since the 1960s a majority of states have relinquished the right to claim sovereign immunity in some but not all instances. Therefore, if your husband is beaten to death by the local police department for jaywalking you are now generously allowed to sue the city for his wrongful death.

Most states that allow wrongful death actions against government entities have a notice requirement. The plaintiff must notify that governmental body that they are targeted for litigation in order that they are given an opportunity to assess to cost to the taxpayers that ultimately foot the bill. The time period for filing a notice may be as short as 30, 60, or 90 days. Failure to file a notice of claim waives the right to file a lawsuit. For that reason you should consult an attorney as soon as the cause arises.

What Must You Do?

In order to sue for wrongful death, you must prove that the acts or omissions of the defendant were the proximate cause of the deceased's death. This requirement is that the defendant's wrongful or negligent conduct must have caused a natural, direct series of events resulting in the death.


There are two types of damages : compensatory and punitive.

Compensatory Damages, which are intended to make restitution for lost financial support, are the most common. Medical and funeral expenses in addition to the amount of economic support they could have received if the decedent had lived may be recompensed. In some cases a sum of money to compensate for emotional suffering or loss of companionship are recoverable.

Determining the amount of damages is a legal art best left to a professional attorney. To compute such an amount, the decedent's income that could have been earned may be multiplied by the number of working years he had left and can be adjusted for some factors. Insurance actuarial tables are often relied upon for the life expectancy of particular groups categorized by age and/or gender. The deceased's mental health, both mental and physical, along with the nature of his employment, may also fall into the consideration of a jury.

Punitive Damages may be awarded in a wrongful death case if the defendant's actions were unconscionably reckless or heinous. Punitive damages are a means of punishing the defendant and are awarded at the discretion of the jury. Any damages recovered are distributed among the survivors according to the laws of succession. Courts frequently divide an award of the basis of the extent of the beneficiary's loss.

Limitations on Recovery of Damages

Some states place upper limit caps on the amount of money that can be recovered in a wrongful death action. For example, many state and local governments set a maximum amount of damages that can be recovered for a wrongful death. However, a number of states have no such limits on a wrongful death action.

Amounts recoverable for the death of passengers on international airlines are limited by International treaties and fall under United States statutes. Worker's Compensation laws, which are universally in every state, limit an employer's liability. Employers must carry a policy of insurance for their employees designed to compensate them based on an actuary schedule for each type of injury or for death. In return for such insurance coverage, employers are immune from negligence suits. The result is that the amount workers can recover has an upper cap, but recovery is nonetheless guaranteed for injury or death sustained in the course of employment. This arrangement generally serves the employer much better than the injured party.