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Fundamentals of Wrongful Death

Wrongful Death Defined
 
A wrongful death lawsuit is premised on the fact that a wrongful death not only injures the person who has died, but also injures the people who depended upon the deceased for financial or emotional support. The wrongful act may include a negligent or careless act, a reckless act, or an intentional act such as a deliberate murder. Almost every state has enacted a statute permitting a lawsuit to be brought by the relatives of a person who has died as a result of a wrongful act. A wrongful death action is distinguishable from a survival action. In the latter, if an injured party files suit but dies before the case is concluded, the survivors may continue the suit on the behalf of the deceased or the estate of the deceased.
 
Standing to File Suit
 
The representative allowed to bring a wrongful death suit is defined by state law. In some states, it may be only a spouse and children. In other states, grandparents or other relatives may also be permitted to file a lawsuit. Some states have enacted restrictions on filing when one family member would be suing another family member for the wrongful death of a third family member.
 
Determination of Damages
 
Generally, survivors can sue for medical bills paid for the care of the person who was killed, as well as for burial expenses. Determination of other damages can be difficult. Because wrongful death is based on the injury that the survivors have incurred by the absence of the person who died, determining the amount of damages requires consideration of what probably would have occurred in the future. Damages that can be assessed may include an estimate of the amount of earnings the person who died would have earned if he had lived and the pain and suffering experienced by the survivors due to the absence of the deceased person. Estimates of future earnings usually require expert testimony involving the deceased person's future earning capacity.