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01 Nov 2018

UNDERSTANDING A WRONGFUL DEATH CLAIM

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A wrongful death is any death that is caused because of negligence and recklessness by a third party. In California, wrongful death is considered a civil lawsuit and is brought to the court by survivors of the deceased. If you have lost a family member or somebody you know has lost a family member because of someone else’s negligence, you should consider contacting an attorney and filing either a wrongful death or survival action lawsuit. In order to do so, you must understand the wrongful death claim, a Sacramento CA injury lawyer at The Weinberger Law Firm can help.

Wrongful death are considered civil lawsuits, which differs from criminal cases for homicide. In civil lawsuits, fault is expressed in monetary damages paid to the survivors rather than probation, jail or prison time. Wrongful death is a subclass of personal injury because if that person had survived, they would have brought a damage claim against the person who caused the injury. Since they are not able to do so, the survivors can make a claim on behalf that the deceased person.

Legal Elements of a Wrongful Death Claim

Any survivor that wants to bring a wrongful death claim needs to understand the basic elements:

  • A death of a person “was caused by a negligent or wrongful act”
  • There is a loss of financial support – this is usually a big factor and much more easier to calculate. Income, potential future earnings, inheritances, etc fall into this category
  • There is a loss of emotional support such as love and affection

Who can file a wrongful death lawsuit?

Wrongful death law becomes pretty complex, especially when undertaken without an experienced Sacramento CA injury lawyer. According to California’s wrongful death statute CCP Section 377.60, the following can file a wrongful death statute:

  • the victim’s spouse
  • dependent children
  • domestic partner, also the de facto partner
  • domestic partner’s children
  • dependent stepchildren
  • surviving parents, siblings of the deceased and their children
  • grandparents of the victim
  • any person who dependent on the descendent for support

The last few on this list have special rules so it’s best to speak with a highly skilled wrongful death lawyer who can evaluate your case and choose the best course of actions.

Filing a wrongful death claim

Filing a wrongful death claim has a time limit, known as the “statute of limitations”. In California, that time limit is 2 years after the death in most cases. One exception is if the negligence was done by the state or government agency, which has a six month time limit. Medical malpractice claims have a one year time limit. Because wrongful death claims can vary from person to person, it’s important to understand each specific difference by contacting an experienced Sacramento CA injury lawyer.

Potential Damages Awarded

A person who is entitled to bring a wrongful death lawsuit can seek monetary recovery for economic and noneconomic. Some of the economic compensation includes:

  • financial support the deceased victim would have contributed
  • the loss of gifts or benefits the family member would have likely received from the deceased victim
  • funeral and burial expenses
  • value of household services the deceased victim would have provided

California also permits the jury to award compensation for certain noneconomic losses including:

  • the loss of the deceased victim’s love, companionship, comfort, care, assistance, protection, and moral support.
  • the loss of the enjoyment of sexual relations in case of a spouse or domestic partner
  • in the case of a child, the loss of the deceased parent’s training and guidance

The jury has the right to award any amount since California law does not put a cap on the limit.

Do all wrongful death lawsuits go to trial?

Every personal injury claim has the potential to go to court, including wrongful death but there are many that can be negotiated outside of the court and settled for the amount the family deserves. When a lawsuit does go to trial, it can be expensive, time consuming and complicated. For that reason alone, it’s best to utilize the expertise of a skilled personal injury attorney. An experienced wrongful death attorney will help make a number of difficult decisions and deal with complex issues including:

  • deciding whether or not to create an estate to make the wrongful death claim – if a large number of claimants are involved in a single case, it can be better to create a probate estate of suing through a number of individual heirs
  • using expert testimony to establish the victim’s life expectancy
  • getting specialists to determine the amount of lost financial support is being suffered by the claimant
  • actually proving the liability of the at-fault party and explaining the justification for the damages being sought out.

If you or someone you know lost a loved one due to someone else’s negligence, don’t wait to contact an experienced Sacramento, CA injury lawyer for free consultation.

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