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Wrongful Death


Wrongful death is a claim brought by a party against a defendant who caused the death of a close family member. A wrongful death action gives an opportunity to the estate of the deceased person to bring a lawsuit against the defendant who may have caused the death by intentional or negligent actions. The lawsuit gives the family the chance to seek compensation for their emotional and financial loss.

What is a Wrongful Death?

Claims for wrongful death are usually negligence cases. Negligence case is when the defendant was careless which caused an accident causing harm to the victim. For example, if the negligence of a party leads to the death of a loved one on a hunting trip, you may have a wrongful death suit. The party bringing the action must prove the four key elements:

  1. Negligence – the party must prove the defendant caused the death of the victim by carelessness or reckless actions
  2. Breach of duty – the party must prove that the defendant owed and then breached a duty to the deceased victim.
  3. Causation – the party must prove thatthe defendant negligence caused the death of the loved one.
  4. Damages – The death of the victim should have resulted in damages such as hospital fees, medical expenses and funeral/burial cost.

Wrongful death lawsuit is a civil action and is separate from the criminal prosecution. Therefore the burden of proof is set lower. Even without criminal charges, a family can bring a civil action against a defendant. Additionally, if a criminal court acquits a defendant of murder, the victim’s family may still have a cause of action in civil courtA court would take the two charges separately and one should not control the other.

Who Can Bring a Wrongful Death Suit?

Usually, survivors with a relationship to the deceased brings a wrongful death claim. The relationship to the victim construe differently from state to state.

In all states, a spouse can bring a wrongful death claim because the spouse can show a financial dependence on the deceased. Others who may be eligible to bring the claim may include parents of  unmarried children and children of the deceased. In some states sibling and grandparents may have the right to bring a lawsuit. But they would have a higher burden in proving closeness to the victim. Parents of minor children can bring a claim, but debate remains whether parents of adult children can bring a claim.
Bystanders with no relationship to the victims cannot bring a claim for wrongful death.

When to Bring a Wrongful Death Claim

Survivors can bring a wrongful death claim when a defendant kills their close relative by the harmful act of an intentional or negligent act. Some instances when a wrongful death claim can be brought includewhen then the victim dies because of

  • Intentional act
  • a criminal activity,
  • medical malpractice,
  • product defect,
  • occupational exposure and hazard,
  • supervised activities (day care, adult care, field trips) or
  • car related accidents involving negligence, including manufacturing defects.

What to Prove

To bring a wrongful death claim, one must prove that the

  1. defendant owed a duty of care to the victim,
  2. defendant breached they duty,
  3. death was caused by the breach and
  4. death caused damages that plaintiff can recover.


When calculating damages for the one who has brought a wrongful death claim, the jury looks at the victim’s earnings at the time of death and potential future earnings and losses. Some damages that can result from a wrongful death can include:

  • medical cost of the deceased victim
  • deceased person’s expected income
  • cost of services provided such as funeral and burial
  • loss of consortium
  • loss of support and income
  • lost of prospect of inheritance
  • value of services the deceased would have provided if still alive
  • loss of love and companionship

A court may award punitive damages to the victim’s family for a action. Punitive damages exceed compensation. A court or jury awards punitive damages mainly to punish the defendant for the harmful actions.

R.F. Wittmeyer

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