A Wrongful Death action may be available if the decedent would have been able to sue had he/she lived. An action may be brought against someone who caused another person’s death through wrong doing or negligence. The suit will be for the harm that would have been caused to the decedent through this action had he lived. Since the decedent is unable to make the claim on his own, a beneficiary can now make a Wrongful Death action to recover for the death of a loved one.
The beneficiary can be spouse, child, grandchild, parent, sibling, or other relative. Spouses must be spouses at law, not by common law spouses. A stepchild can only be a beneficiary if that child was adopted by the decedent prior to death. The other relatives must have been dependant on the decedent and living within the same household.
The beneficiary can make many claims for damages including sorrow and mental anguish, loss of any future income, loss of assistance and services, medical bills that were incurred before death but were results of the injury that lead to death, reasonable funeral expenses, and punitive damages.
Punitive damages are available for those who act willfully or wantonly, such as those who are Driving Under the Influence and cause an accident that results in the decedents death. The punitive damages are only available if the wrongdoer is still living because they are not meant as a compensatory damage, but as a punishment to be inflicted on the wrongdoer.
Loss of future income is determined by the wages that the decedent was currently making, the raises that would likely have taken place, and the length of time that the decedent would have continued to have worked.
Wrongful Death Litigation
A person’s death is a difficult time for surviving members of the family. When the death comes without warning and is caused by the negligent or careless behavior of another party, it can be an emotionally and financially devastating experience. The wrongful death of someone who might have been the sole source of support for other family members can leave the survivors confused and in need of advice and guidance to deal with the many emotional and financial issues the future holds for them. The compassionate attorneys at the Hampton Law Offices of John W. Lee, P.C., carefully investigate the facts and circumstance of the death and make it a point to spend time with family members to answer any questions and ease any concerns they might have about their future. They are staunch advocates for the interests and well-being of the family of someone lost due to the conduct of another person or entity.
What Is a Wrongful Death Claim, and Who Can File a Lawsuit?
Wrongful death is defined in Va. Code Ann. § 8.01-50 as a death resulting from the wrongful act, default or neglect of another person or entity. It is available when people die under circumstances that would have given them grounds for filing a personal injury lawsuit for damages had they survived. Because they died, the law gives the right to sue to statutory beneficiaries.
Va. Code Ann. § 8.01-53 designates certain statutory beneficiaries as having the authority to file a lawsuit for wrongful death. Statutory beneficiaries having grounds for filing a claim for wrongful death include the following relatives of the deceased person:
- Surviving spouse
- Brothers and sisters
- Family members entitled to inherit under commonwealth intestacy law
- Relatives who resided with and were dependents of the deceased
Damages recovered in a wrongful death claim are distributed according to guidelines in the statute. The guidelines give priority to the surviving spouse and children of the deceased. Grandchildren of the deceased would only share in the distribution of damages if their parent was also deceased. The complex nature of damages distribution to those with grounds for filing claims are such that attorneys at the Law Offices of John W. Lee, P.C., routinely spend time with family members going over the laws and the methods of distribution.
Appointment of a Personal Representative for the Estate
The attorney chosen to handle a wrongful death claim must possess skills and knowledge beyond personal injury law. The attorneys at the Law Offices of John W. Lee, P.C., are accomplished person injury lawyers, but they also have years of experience in probate and estate law. This is essential because the person bringing the wrongful death claim must be appointed by the circuit court as a representative of the estate of the deceased person.
Appointment of a representative begins with the filing of a probate or administration petition in Newport News, Virginia Beach or any of the circuit courts where the deceased individual resided. The attorneys at the Law Offices of John W. Lee, P.C., have the ability to handle all aspects of the estate proceedings, including the appointment of a representative with authority to pursue the wrongful death claim.
The Elements and Burden of Proof in a Wrongful Death Lawsuit
The following are each of the elements of a wrongful death claim that attorneys for the family of a deceased person must establish to meet the burden of proof for recovering damages:
The Elements and Burden of Proof in a Wrongful Death Lawsuit (cont.)
- The death of the family member
- Caused by deliberate, reckless, careless or negligent conduct
- Resulting in damages or loss suffered by surviving statutory beneficiaries
The circumstances surrounding the cause of death can create challenges for attorneys in meeting their burden of proof linking the death to a particular party. For example, an automobile crash caused by a negligent driver causes serious injuries to a passenger in a vehicle. The passenger is taken by ambulance to a hospital where an error by a surgeon causes the person’s death. The focus of wrongful death causation in this instance might be the breach of duty to properly treat a patient rather than the negligence causing the car accident.
Wrongful Death Common Causes
Wrongful death causation may arise in any type of accident or incident, including the following:
- Medical malpractice and breach of duty of care
- Motor vehicle accidents
- Swimming pool accidents
- Nursing home neglect and abuse
- Defective product accidents
- Criminal conduct, such as assault
- Exposure to hazardous chemicals or products
- Work-related accidents and illnesses
Preparation and investigation are required even in cases involving the death of a person from what might appear to be one of the wrongful death common causes. Experienced personal injury lawyers know how important it is to investigate and gather as much evidence as possible in each case. For instance, someone’s death in a fall at a local bar could have been caused by the negligence of the owner in failing to keep the floors clean remove spilled food and liquids, but further investigation might disclose evidence that the deceased person died from being hit in a fight at the bar.
Damages in a Wrongful Death Case
The types of damages recoverable in a wrongful death lawsuit include the following:
- Mental anguish, solace and sorrow resulting from loss of companionship, guidance and advice
- Loss of financial support, services, care and assistance
- Costs related to care and medical treatment of the victim prior to death
- Reasonable funeral costs
Punitive damages can be awarded in wrongful death cases where the evidence shows the conduct of the person causing the death was wanton or willful. Unlike other forms of damages awarded to compensate the surviving members of the family for their loss, punitive damages are awarded to punish someone for conduct a court or jury believes was so reckless and in disregard for the safety of others as to warrant punishment.
Outstanding Hampton Roads Wrongful Death Attorneys
Wrongful death claims have a short statute of limitations. Delays in filing a lawsuit could result in the claim being lost. The personal injury attorneys at the Law Offices of John W. Lee, P.C., have more than 70 years of combined experience providing trusted legal advice and skilled representation for families in Newport News, Virginia Beach and throughout Virginia who have lost a loved one to the negligence or careless conduct of another party. They know the laws and the statutory requirements that must be met in wrongful death cases. Their commitment to obtain the compensation families deserve when someone is tragically taken from them is unsurpassed. Contact them today at (757) 896-0868 to schedule a free and confidential consultation.