The death of a loved one is among the many horrific ordeals a family can go through whether it’s as a result of natural causes or illness. It’s even more disturbing knowing that their death was as a result of someone else’s negligence. Now, a variety of circumstances can cause wrongful death. These include:
- Road accidents
- Medical malpractices
- Workplace related accidents
- Product liability
- Airplane accidents
If you have a friend or a family member who’s a victim of wrongful death, the first thing you’ll want to do is seek justice on their behalf or on behalf of the surviving spouse or children. Filing a wrongful death lawsuit is always a personal decision that will in most cases involve the surviving family members or friends.
Pursuing a wrongful death lawsuit will help to provide you with closure, hold the person responsible accountable for their actions, and in addition to this, help you to recover financially. But before you do, there are a few things you need to be aware of. It will be an emotional roller coaster as it will be a reminder of the events that led to the demise of your loved one. So it’s important that you prepare yourself, your kids, or other family members psychologically. This will make it easier for all who are involved.
In this article, we’ll be shedding more light on who can file wrongful death and how to prove negligence in such cases.
Who Can File A Wrongful Death Claim?
Now, this may be dependent on where you live. This is because different states have different statutory laws regarding wrongful death cases and these laws may impact the family’s decision with regards to who files for a wrongful death claim. Stephen K. Brooks from Brooks Law Group says that your best chances in a wrongful death case lie with a wrongful death attorney. An attorney will help in clarifying the law regarding who may or may not file a wrongful death lawsuit. In addition to this, depending on the nature of the case, they can weigh your case to determine your best chances of winning it. Now, most if not all states will require that the immediate family members file for a wrongful death claim on behalf of their loved ones. Below are people or entities that can file a wrongful death claim:
- The surviving spouse – If the deceased was married in his/her time of death, then state laws do allow for the surviving spouse to file a wrongful death on behalf of their spouse.
- Adult offspring/s – If the deceased had children and they are of age to be recognized by the state as adults, they can file for a wrongful death claim on behalf of their parent. For minors who may want to pursue justice on behalf of their parents, they must be in legal guardianship or in the custody of an adult who has their best interests at heart.
- Parent – If the wrongful death involved a child, then the parents can file for a wrongful death claim.
- Distant family members – Different states have this provision especially if the wrong death involved a single adult with no surviving kids or spouse.
It could also be that the decedent had a will in his time of death. This, therefore, means that the will’s executioner has the right to file for wrongful death and represent the deceased, seeing that they also represent the deceased’s estate.
Proving Negligence in a Wrongful Death Case
This is where it gets tricky! Wrongful death cases are among the most intricate cases of Tort Law cases. Proving negligence would be an easier undertaking if the plaintiff were alive. But seeing that they cannot defend themselves as they are deceased, the next of kin will act as their representative, of course, with an attorney to represent their best interests. To successfully do this, the deceased’s representatives must prove negligence. This is how:
1. Proof of Breach of Duty
Duty, as most have probably heard about it in wrongful death cases, is the responsibility that was owed to the deceased before his/her demise. For instance, if the wrongful death was a result of a road accident, then the other motorist had a duty to be careful while driving. The attorney must, therefore, prove that in the events following the death of the deceased, the defendant breached their duty and through their actions, caused the death of the victim.
2. Proving Causation
The second to be proved is causation. The plaintiff must prove to the court that as a result of the breach of duty, the actions of the defendant caused harm to the victim resulting in their death. Proving causation is amongst the most difficult processes in wrongful death proceedings. This is why you need to have an experienced attorney on your side when filing for a wrongful death claim. Among things that help prove causation includes police reports and witness information.
3. Proving Damages
After filing a wrongful death claim, your attorney will play a huge role in proving that the death of the victim surmounted to quantifiable damages on the victim’s family such as medical costs, loss of income, loss of protection, and funeral expenses. Basically, proving damages will help to determine the worth of your claim.
The intricacies surrounding the nature of most wrongful death claims make them hard to navigate and emotionally overbearing to the immediate family. So before you file a wrongful death claim ensure that you’re ready by first seeking counseling or by talking to an experienced attorney.