The Peck Law Group is comprised of caring attorneys with vast expertise in wrongful death claims, law and litigation. When loved ones are left behind and need to pick up the pieces of such a traumatic, life changing event, as death and wrongful death on top of it, it’s overwhelming.
What is Wrongful Death?
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 the law is usually 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 or caps may be applied to an award of damages. Limits and or caps on damages will depend on who is deemed responsible for the wrongful death of another. In California, Health Care Providers may be only responsible for damages up to and including $250,000.00.
The History of Wrongful Death Statutes
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 being negligent.
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.
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
Wrongful death actions filed against state or local government will be allowed to go forward only if the state has waived its Sovereign Immunity. This is 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.
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.
Statute of Limitations
In most cases, a wrongful death action must be filed within two years of the date of death. In cases where the wrongful death action is based upon exposure to asbestos, however, the action must be filed within one year from the date of death or within one year from the date the plaintiff first knew, or through the exercise of reasonable diligence, should have known that exposure to asbestos caused or contributed to the death, whichever date is later.
Personal Injury Actions
California requires an injured person to file a lawsuit for personal injuries and wrongful death within two years of the date of the injury. See Code of Civil Procedure Section 335.1. Actions against Health Care provider must be filed within one (1) year of the death in the State of California. See Code of Civil Procedure Section 340.5.
Medical Malpractice Actions
Actions against health-care providers must be filed within one year after the death, or within three years of discovery of the injury whichever occurs first. The only exception is for medical malpractice claims based on the presence of a foreign object found inside the injured person’s body. In that case, the statute of limitations will not begin to run until the person discovers, or should have discovered, the object. These time limitations also apply to minors six years of age and older. In the case of a minor under six, the action must be filed within three years of the date of the injury or before the minor’s eighth birthday, whichever time period is greater.
The law of each state governs the amount of damages recoverable by statutory beneficiaries. Compensatory Damages, which are intended to make restitution for the amount of money lost, and 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.
Punitive Damages 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.
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. Workers’ Compensation 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.
Grieving Families of Wrongful Death Victims often Need Protection
The Wrongful Death of a family member or loved one is a very traumatic and emotional experience. A knowledgeable Wrongful Death attorney such as Steven C. Peck that is familiar with the legalities of Wrongful Death Actions can help you navigate through the layers of bureaucracy attributable to to the wrongful death of a family member or loved one and shall get you the ultimate recovery based upon the damages sustained Contact us to talk to our wrongful death attorney now for a free consultation toll free at 1.866.999.9085. WE WILL HELP YOU!!!
When a family is grieving, being forced to deal with outrageous medical bills is simply too overwhelming and can deeply impact the financial health of a family. With over 30 years of expertise in wrongful death law, The Peck Law Group represents families and loved ones to recover damages. Of course, a loved one can never be replaced. We understand that, which is why we pride ourselves on providing resources to clients for therapy, grief counseling and support.
Our attorneys assemble legal experts and attorneys tailored to your specific needs to ensure you have the best possible outcome.
Peck Law Group offices are located in Van Nuys, Ontario, and Palm Desert, California. Our attorneys serve clients in Los Angeles, the San Fernando Valley, Orange County, Riverside, Ontario, San Bernardino, San Diego, Oakland, the San Francisco Bay Area, Sacramento, Coachella Valley, Palm Springs, Palm Desert and all other regions of California. How can we help you? Call toll free at (866) 999-9085 to contact us today for a free consultation.