Wrongful death is a term used when someone has died as the result of the negligence, recklessness or deliberate acts of another. It is a concept based in tort law, and basically holds the person or entity responsible for the death financially liable to those left behind who depended on the deceased person for emotional and financial support.
Wrongful death cases are controlled by the Florida Wrongful Death Act, which sets up who may pursue a claim and what damages are available.
Who May Pursue A Claim
By statute, the “survivors” of a deceased can pursue a claim for wrongful death. This encompasses a spouse, the minor children (for these purposes, those under 25), parents, and, if dependent on the deceased for support, any blood relatives or adoptive siblings. It may include children born out of wedlock of the deceased mother. It only allows the children of the father born out of wedlock to sue if the father has recognized responsibility for the children’s support.
The personal representative (normally the executor of the deceased’s estate) may sue on behalf of the estate for certain types of recovery as well, although any amounts recovered ultimately benefit the family of the deceased.
Types of Cases
There are a multitude of types of wrongful death cases. Accidents of all kinds, including workplace or motor vehicle, boating or airplane accidents may give rise to a wrongful death lawsuit.
There are deaths attributed to toxic torts, or faulty pharmaceuticals or defective products that might also substantiate a wrongful death claim.
Medical malpractice or a death arising from a birth injury is a common type of wrongful death claim, and there are special rules surrounding these types.
Negligent security in a business or campus or other public place may be the cause of a person’s demise, and if so, there may be a wrongful death claim available.
Proving the Claim
The elements of a wrongful death claim that must be proven are similar to those in a personal injury claim for negligence. First, a duty of care must exist between the wrongdoer and the deceased person. This can be the duty to provide adequate security for patrons of a business, or a duty to not put dangerous products into the stream of commerce, or the duty of the medical professionals to take reasonable care in the practice of medicine.
Once that duty between the parties has been established, we must next prove that duty was breached. For instance, adequate security was not provided because the parking lot lights were out, or a car’s brakes did not function properly, or a surgeon amputated the wrong limb. Failing to keep control of a car such that it swerves into oncoming traffic might be breach of the duty.
When that breach of duty is the actual cause of injury, then that person (or business) is liable for the damages caused. There must be actual damages for there to be recovery – mere breach of duty without harm will not give rise to a valid claim. Obviously, in a wrongful death suit there is great harm that was done to the deceased and their family.
Recovery of Damages
The Florida statutes set out specifically what type of damages are available to the survivors in a wrongful death situation. That being said, the court also looks to such things as the relationship between the deceased and the survivor as well as the income of the deceased. The court also considers the life expectancy of all the parties, and the “replacement value” of the deceased’s services.
A surviving spouse can recover for the loss of support and services from the date of the injury, with interest, and for future loss of support and services. “Support” is defined as contributions to the family in like kind as well as money; for instance, property and earnings. “Services” usually means tasks (usually around the house) which the decedent used to perform, such as yard work or cooking or any other task. Spouses may also recover for loss of companionship and protection, and for pain and suffering from the date of the injury.
Children can recover for the loss of parental companionship, instruction and guidance. They can also recover for mental pain and suffering from the date of injury, with interest.
Parents of a deceased minor child may recover for mental pain and suffering from the date of injury. Parents of an adult child may recover for mental pain and suffering if there are no other survivors, such as spouse or children.
The personal representative may recover on behalf of the deceased’s estate for loss of earnings and loss of prospective net accumulation of the estate which might have reasonably been expected but for the wrongful death.
Medical and funeral expenses for the deceased can be recovered by the party which paid for them. If these expenses are charged against the estate, then the personal representative may recover them on the behalf of the estate.
If the death was the result of intentional, reckless or grossly negligent act, the jury might impose punitive damages. These are intended to punish the wrongdoer, and prevent future similar conduct. Punitive damages are not available in “mere negligence” cases, and are currently capped by law at three times compensatory damages. It is unusual to be awarded punitive damages unless such intentional, reckless or grossly negligent behavior can be proven (Learn about security negligence).
Seek Experienced Wrongful Death Counsel
It may be extremely difficult to think about a lawsuit when you are in the throes of such an emotionally trying situation, but you should not wait to take action. If a family member has been killed in an accident, and you think you may have a claim for wrongful death, you should contact an attorney experienced in these types of cases. The statute of limitations is two years for these claims, so you should not delay. Compassionate, experienced attorneys will help you obtain justice for the wrongful acts which resulted in your loved one’s untimely death.