Wrongful Death and Survival Action
Wrongful Death – Overview
No amount of money will bring back a loved one who has been lost in an accident. The Boesch Law Group has defended and prosecuted some of the most public and high-profile wrongful death cases. Knowing what to do and how to do it, speaking the language of both plaintiffs and defendants, has earned the Boesch Law Group the respect of counsel, insurance companies, judges, and clients across Southern California. Learn more by talking with an experienced attorney at the Boesch Law Group.
Losing a loved one is painful. Losing a loved one due to wrongful death can be even more difficult. If someone’s wrongful actions caused injuries that resulted in your loved one’s death, that is a wrongful death. In common law, there was no legal action that surviving family members could take. That changed, however, when governments began to make laws protecting survivors. Now, in every state in the U.S., the representative or heirs of a person lost to wrongful death may file a lawsuit for monetary damages. The laws, however, vary quite a bit from state to state, so consulting with an attorney from the Boesch Law Group in Los Angeles is advisable.
Monetary Damages for Wrongful Death
The main method courts have for measuring loss in wrongful death lawsuits is pecuniary damages — that is, the court must determine the proper compensation for the financial loss that the death has caused. Though this may seem harsh or cold, money damages are the remedy that civil courts have at their disposal. Thus, when the courts measure loss, the first thing most of them turn to is quantifiable data:
* How much money did the deceased earn?
* How much money did the deceased save?
* How financially dependent were the survivors on the deceased?
The court will also take into consideration:
* Funeral expenses
* Medical expenses
The wrongful death lawsuit is meant to compensate certain surviving family members, not necessarily to punish the party responsible for the death. Punitive damages are available, however, in some states when the actions of the defendant were reckless or malicious.
Factors in Determining Economic Loss
Courts look at a number of elements when they determine the level of financial loss the plaintiff in a wrongful death lawsuit has suffered. Most of the considerations take into account characteristics of the person who has passed away:
* Earning potential
* Life expectancy
Courts assess these factors when considering the financial dependence of the plaintiff on the deceased.
Some activities that might not seem economic at first glance can be characterized as such by the court. This is because it would cost money to have someone besides the deceased perform the activities. They include:
* Assistance with family member’s medical or daily living needs
The plaintiff may wish to use expert testimony to establish the amount of loss.
Factors in Determining Emotional Loss
Not all of the emotional harm suffered by the plaintiff can be compensated by the court. Some aspects of what the decedent contributed to the family, however, are “calculated” by the court:
* Parental guidance
In making this determination, the court will look at the strength of the relationship between the plaintiff and the decedent. The weight the court gives this type of loss changes based on the particular state’s laws.
Survival Action for the Injuries of the Deceased
Some courts will allow the plaintiff to sue for injuries sustained by the person who died. This is called a “survival action” because the legal claim survives after the injured person’s death. A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Damages recoverable in a survival action include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” Essentially, a survival action allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.
Contact an Attorney
Each state has a rule — a statute of limitations — about how long a plaintiff has to file a wrongful death claim. After that time has elapsed, it is too late to take legal action. It is therefore important to speak with an attorney from the Boesch Law Group, in Los Angeles, California about your rights and options soon.
DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.
Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.