Wrongful Death

When someone close to you dies due to the fault of another person or entity (such as a government agency), the survivors are legally entitled to bring a wrongful death lawsuit. This type of lawsuit seeks compenstation for the survivors' losses, such as lost wages, loss of companionship, medical and funeral expenses. Here's a bit of legal primer on the merits of wrongful death claims -- what they are, who has standing to sue, who can be named in the suit, and what type of damages may be recovered.

What is a Wrongful Death Claim all About?

A wrongful death claim can be made when an indivdual dies owing to the legal fault of another person. The right to file a suit for wrongful death is a recent innovation in the history of jurisprudence. "Common law" (the laws brought to the United States from England and ruled our system for many years) didn't allow for this kind of tort action. However, during the twentieth century, state and federal courts created right to bring a wrongful death action. Every state in the union now carries some type of statutory wrongful death legislation on their books.

Wrongful death claims involve a vast variety of fatal accidents from car accidents to complicated medical malpractice, product liability incidents and industrial disasters. Persons, companies, and governmental agencies can be legally at fault for gross negligence (failing to act as a reasonable person is required to act) and for acting so intentionally.

Who Has Legal Standing to Sue for Wrongful Death?

A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent's death. These individuals are often referred to in legal parlance as the "real parties in interest". Under norman circumstances the representative is the executor of the decedent's estate. Exactly who qualifies as a "real party in interest" varies among the states. Some of those people might include:

Immediate family members. Without exception close family members such as spouses and children (even adopted children) and parents of unmarried children have legal standing to recover under wrongful death statutes. A qualified attorney can readily determine proper standing of parties to bring a suit.

Life partners, financial dependents, and putative spouses. In some states, a domestic or life partner in a same-sex living arrangement, anyone who was financially dependent on the decedent, and a "putative spouse" (a person who had a good faith belief that he or she was married to the victim such as in a "common law" marriage) have a right of recovery.

Distant family members. Some states provide standing for some distant family members. These might include brothers, sisters, and grandparents. For example, a grandparent who is the legal guardian and is charged with raising a child may be able to bring an action if the child was dependent upon the deceased's income.

All affected parties. Some states allow for a more expanded set of persons who suffer financial loss by dint of the passing of the decedent to be included as a beneficiary in a wrongful death action. They may claim damages for lost care and/or support, even if they are not blood related or associated by marriage to the victim.

Parents of a deceased fetus. In some states, the wrongful death of an unborn fetus can be the basis of a suit. These laws are not uniform across the states. In some states, parents cannot bring a wrongful death action to recover for emotional or financial damages as the result of the death of their unborn child. In other states, the parents are entitled to bring a wrongful death action provided that the child had been born alive and later died from the proximate cause that formed the basis of the suit. These determinations are legally complex and require the experise of a qualified attorney. Review your state statutes and consult with an experienced wrongful death attorney to determine if such action is allowed in your state.

Who Could Be Sued in a Wrongful Death Action?

Wrongful death lawsuits can be levied against a wide spectrum of tortfeasors : companies, government agencies, and employees. For example, in a car accident which involves both a dangerously constructed roadway and a drunken driver, a wrongful death action might embrace such parties as:

the negligent driver himself or the employer of the driver
the designer and/or the construction company responsible for the faulty road
any agency of the government vested with the responsibility to provide hazard warnings
the manufacturer, distributor, or the one who installed a faulty or dangerous vehicle component
a person who sold, served, or otherwise distributed alcohol to the impairment of the driver
the owner of the premises wherein the impaired drive had been served alcohol

Immunity for Government Agencies and their Employees

In recent years there has been an exponential rise in governmental abuse of citizens' rights, some of which have resulted in their tragically wrongful deaths. It is one of the fastest growing areas of wrongful death litigation. The failed, so-called "War on Drugs" has given rise to numerous incidents in which militarized police in armed gangs called "SWAT" teams have invaded homes in botched tactical raids directed at the wrong address and have wrongfully gunned down totally innocent people. This unfortunate trend is on the rise in the United States.

In some cases, certain persons or governmental agencies may be deemed legally immune from their abuses under a doctrine called "Sovereign Immunity". The idea of sovereign immunity is an archaic holdover from the ancient, medieval concept of "The Divine Right of Kings" which held that "The King" rules by the authority of God Himself and consequently can do no wrong. The Founding Fathers of the United States subscribed to an entirely different view and fomented a violent revolution to drive the adherents to this belief out of the country. Every Fourth of July today we celebrate the consequent bloodshed. As a result of the Revolutionary War the concept of "sovereignty" was tranferred from "The King" to embrace every individual man and that individual sovereignty was secured under The Constitution. What we are witnessing today is the resurrection of the very doctrine against which our forefathers rebelled.

Sovereign immunity, or its ugly stepchild call "qualifed immunity" as granted to police and judges, are not an open license for governmental authorites to ride roughshod over citizens' rights. While the obstacles to bringing a wrongful death suit against a governmental agency are formidable indeed, they are not insurmoutable. Only a qualified attorney can determine the merits of your suit or the likelyhood of your success in such an endeavor. If you have lost a loved one in a confrontation with abusive governmental authorities do not hesitate to contact us about initiating a suit for wrongful death.

In recent years the concept of immunity from suit has been extended by federal law to provide immunity from wrongful death claims to large pharmaceutical drug companies. Some of these companies manufacture defective vaccines laced with mercury as a preservative that cause convulsions, autism and sometimes outright death in children. Despite this discouraging fact other avenues of legal action are open to parents who have lost a child and suspect an immune reaction to a vaccination as a proximate cause. Consult with us about these options.