What Is Wrongful Death?

by | Apr 10, 2021

A wrongful death lawsuit involves a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. Under modern wrongful death statutes, the loved ones, family or estate of a person who died from unlawfully inflicted injuries may file a civil lawsuit for financial compensation. A variety of unlawful or illegal actions might support wrongful death claims in the United States. Prior to modern enactment by state legislatures of wrongful death statutes, when one died their claim “died” with them. A dead person’s loved ones could not file a lawsuit for the activities that resulted in a person’s death. From a simple rear-end accident to homicide, families have a right to seek justice and compensation for a loved one’s death. If your loved suffered a wrongful death, contact experienced and respected litigation wrongful death attorney Steve Crane. He and his team can help you determine how to move forward with a claim of wrongful death. To schedule a discrete and confidential consultation about your matter, email or call us at (248) 963-6300.

What are the Elements of a Traditional Wrongful Death Action?

Unlike other torts (“civil wrongs”), the legal basis of a wrongful death action is determined on a case-by-case basis. Often, plaintiffs must prove that one or more defendants unlawfully caused the decedent’s injuries. The defendant’s unlawful conduct may involve operating a motor vehicle unsafely or negligently performing surgery. In addition, plaintiff must prove that the injuries the decedent sustained as a result of the defendant’s unlawful conduct substantially contributed to the decedent’s untimely death. For instance, the spouse of a loved one killed in a drunk driving accident must establish that the crash led to the loved one’s death, and demonstrate the negligence elements applicable to car accidents:
  1. The duty to drive safely
  2. Breach of that duty by driving while intoxicated;
  3. Causing the accident due to driving drunk;
  4. Resulting damages and injuries
  5. The injuries resulted in the individual’s death
These elements will differ in cases in which medical malpractice or an assault resulted in death. Often, such determinations involve asking whether the decedent could have brought a legal claim for personal injuries against the same defendants if the decedent had survived.

What are Some Common Examples of Unlawful Death Lawsuit?

The following events frequently result in a viable wrongful death case in the United States; wrongful death is not limited to these examples:
Automobile Accidents
Car crashes, motorcycle crashes, car and bicycle collisions with pedestrians, and crashes caused by truck driver negligence, are the most common cause of wrongful death.
Workplace and building accidents
Construction workers, including electricians, carpenters, and heavy machinery operators, which sustain fatal job-related injuries that also involve individual liability and workers’ compensation laws. Also, “first responders,” such as police officers, firefighters, and emergency personnel, which sustain fatal injuries in the line of duty.
Medical malpractice and nursing home negligence
Missed diagnosis by a medical professional such as a doctor or nurse, an anesthesia error, or nursing home negligence often result in wrongful death litigation.
Criminal conduct
An aggravated assault, murder, manslaughter, and reckless endangerment can lead to a civil lawsuit for wrongful death.
Product defects
Deaths caused by failing car brakes, falling dressers, and improperly packaged food.
Falling accidents are a leading cause of traumatic brain injuries (“TBI”) and death among young children and elderly adults.
Mass transit and terrorist activities
Although not as common, a plane crash may cost the lives of passengers and crew. Mass shootings, train accidents, and terrorist activities can also result in domestic and foreign deaths actionable in United States federal courts Sometimes plaintiffs have multiple grounds for bringing a wrongful death claim. For example, a terrorist attack may result in a plane crash, implicating international terrorism, criminal homicide, and airline negligence statutes. Experienced and respected litigation wrongful death attorney Steve Crane can help you bring all cognizable claims related to a loved one’s unlawful death. He and his team can help you determine how to move forward with a claim of wrongful death. To schedule a discrete and confidential consultation about your matter, email or call us at (248) 963-6300.

Who May Bring a Wrongful Death Lawsuit?

Generally, only one wrongful death case may be filed in a court of law per deceased individual. All states have laws outlining who may bring wrongful death litigation and in who has priority.
The following is illustrative of the priority; who has “first rights” to bring the wrongful death action:

  • Decedent’s spouse (not including an ex-spouse)
  • Decedent’s adult children
  • Decedent’s minor children or grandchildren
  • Decedent’s parents
  • Decedent’s brothers and sisters
  • Decedent’s nieces and nephews
  • Another family member as permitted by the court
  • The legal administrator or executor of the estate, if no relatives exist

Only spouses or family members (blood or adoption) may typically bring and recover damages from a wrongful death lawsuit. Cohabitating partners, fiancés, stepchildren, friends, co-workers, and in-laws do not generally qualify.

Every state has different laws. Some states give co-equal authority to spouses, children, and parents, or only permit an executor to bring a wrongful death claim. In addition, different state laws apply if a priority plaintiff, such as a child, refuses to file the lawsuit.

How does a Wrongful Death Lawsuit Proceed when there’s a Contemporaneous Criminal Prosecution?

Lately in the news, we have seen wrongful deaths at the hands of police officers. Such unlawfully caused deaths result in criminal prosecutions. Most states allow both criminal trials and wrongful death claims to proceed simultaneously. However, a court will often “stay” (the legal term for the word “pause”) the wrongful death proceeding while related criminal charges are pending. Any pause in the wrongful death proceeding typically only lasts a few months because prosecutors must adhere to the defendant’s Sixth Amendment right to a speedy trial after the filing criminal charges. Loved ones and family may proceed with wrongful death litigation against liable defendants whether the offenders were imprisoned, acquitted, or never charged with a crime.

What are some Examples of Crimes Constituting Wrongful Death?

Intentional and extremely reckless actions typically distinguish criminal homicide, such as murder, from non-criminal conduct causing death, such as electrocution due to a malfunctioning electrical circuit. Accidents and general negligence resulting in fatal injuries give rise to wrongful death claims but not criminal indictments. However, the following events often lead to both criminal prosecutions and civil claims for damages:
  • Murder
  • Manslaughter
  • Vehicular manslaughter (drunk or reckless driving)
  • Encouraging and assisting in suicide
  • Aggravated assault and battery
  • Child cruelty and neglect
  • Illegal discharge of weapons
  • Reckless endangerment
Each criminal act has a corresponding civil claim, such as negligence, battery, or intentional infliction of emotional distress, which may form the basis of wrongful death litigation.

How does the Evidentiary Burden of Proof for a Plaintiff in a Wrongful Death Lawsuit Compare to the Evidentiary Standard for a Prosecutor in a Criminal Proceeding?

In any criminal proceedings, prosecutors must prove criminal conduct beyond a reasonable doubt. Reasonable doubt is a “moral certainty,” which basically means you are 100% certain that the defendant committed the crime as charged. Conversely, in civil proceedings, plaintiffs need only prove that it was highly likely that the same defendant caused a loved one’s death. This means one needs only to be “50.1 % certain” that the defendant caused my loved one’s death. Litigation wrongful death attorney Steve Crane can help families establish a criminal conviction and move for summary judgment based on the defendant’s lack of any defense during wrongful death litigation. In addition, you might often use evidence admitted in a criminal case during civil litigation. Even if the court acquitted the defendant during criminal proceedings, it is still possible a family may still prevail during wrongful death litigation based on these differing evidentiary standards. Experienced and respected litigation wrongful death attorney Steve Crane can help you bring all cognizable claims related to a loved one’s unlawful death. He and his team can help you determine how to move forward with a claim of wrongful death. To schedule a discrete and confidential consultation about your matter, email or call us at (248) 963-6300.

What’s the Difference between Restitution in a Criminal Proceeding versus Civil Damages in a Civil Wrongful Death Proceeding?

Criminal defendants convicted of unlawfully causing a death are typically ordered by the court to pay for the family’s direct expenses, including funeral bills, medical costs, and property damage. The payment of direct expenses is called restitution. The restitution payment must come from the defendant’s resources, not an insurance policy. Accordingly, restitution typically covers only bare minimum expenses, and, as such, most families are forced to bring a civil lawsuit for wrongful death to obtain more substantial compensation from the insurance company and the defendant.

What Damages are Potentially Recoverable by Families and Estates in a Wrongful Death Civil Lawsuit?

Courts distinguish between losses in wrongful death cases. 1. A plaintiff might recover for damages suffered by the decedent and their estate. These damages might include pain and suffering before the wrongful death, mental anguish associated with imminent fear of death, property damage, and medical bills. Any damages recovered on the decedent’s behalf generally go to their estate. The probate court distributes this compensation based on the terms of a will or the state’s default inheritance laws. 2. A wrongful death plaintiff might recover out-of-pocket costs incurred by family members and other as a result of the wrongful death, such as funeral bills, special treatment costs, or travel expenses. This money goes directly to reimburse the payer. 3. Family members might recover for their losses stemming from a loved one’s death. These losses often include lost income, emotional support, insurance benefits, spousal companionship, guidance, and household help. Damages might also include the family’s personal emotional pain and anguish, depending on each state’s laws. Spouses, minor children, and other legal dependents often benefit from these damages. 4. Families might recover punitive damages in wrongful death cases. These damages punish the defendant for criminal or particularly gross behavior. Every state has different rules regarding punitive awards, and some states place a cap on such damages. Wrongful death litigation accounts for one of the few legal actions whereby families might successfully claim these damages directly from the defendant.

What is the “Slayer Statute”?

Whether written into a state’s legal code or recognized by judges, the slayer rule typically states that an individual who unlawfully kills a family member may not bring a wrongful death suit or benefit from such an action. For the Michigan Rule see Michigan Compile Law section 700.2803; and for the Texas Rule see Texas Estates Code, section 201.058(b). The law presumes that by slaying a loved one, whether in a domestic violence incident or for insurance purposes, the killer forgoes all rights to the decedent’s estate. Courts strike the murderer from the decedent’s will and proceed as if the killer died before the victim. Importantly, the slayer rule applies even if the killer was never charged with or convicted of a crime. Sometimes families have enough evidence to prove a civil claim for wrongful death but not enough for a murder conviction. For instance, children suspicious of a parent’s death might bring an action for wrongful death against a stepparent and use the slayer rule to defend against claims they have no right to proceed with the litigation.

What is the Statute of Limitations for Wrongful Death Claims?

Every state has a different statute of limitations applicable to wrongful death claims, but it typically expires from one to four years after the decedent’s death date. In Michigan, following the injured person’s death, an action may be commenced within two years after the personal representative has been appointed but no later than three years after the period of limitation would have expired, but for the death. Hardy v Maxheimer, 429 Mich 422, 416 NW2d 299 (1987); MCL 600.5852. A personal representative must be appointed before a wrongful death action may be filed. Warren v Howlett, 148 Mich App 417, 383 NW2d 636 (1986). In Texas, the wrongful death statute of limitations in Texas is found in Texas Civil Practice and Remedies Code Section 16.003(b). According to the statute, a suit for Texas wrongful death damages must be brought within two years of the date that the cause of action accrues. Crucially, families may have a smaller window of time to bring wrongful death litigation than general personal injury actions, so they should speak with a qualified wrongful death lawyer about their case as soon as possible. However, certain exceptions can extend this window of time. Decedents sometimes sustain serious injuries, such as a traumatic brain injury, full-thickness burns, or paralysis, that do not immediately result in death. A loved one may pass away years after a car accident caused the harm that ultimately led to their death. Under such circumstances, families might still be afforded the opportunity to bring an action for wrongful death within the applicable timeframe, even if the statute of limitations for bringing car crash litigation expired. This is so because you need only prove that the decedent’s death resulted directly from the injuries sustained in the accident. The timeframe for bringing wrongful death litigation may be extended by a court of law if family members contest an executor’s appointment or the legal status of family members in probate court. Fraud, such as concealing evidence of medical malpractice, may extend the statute of limitations for wrongful death. Even if the general litigation timeframe has expired, you are well-advised to still speak to a litigation attorney. Be advised that claimants typically waive future wrongful death claims if they accept an insurance settlement for underlying personal injury litigation. Insurance companies are known to push to a settlement knowing you are waiving your rights to future litigation. It is always best to speak to an attorney before signing any settlement agreement.

What is the Cost of Retaining a Wrongful Death Attorney?

Wrongful death lawsuits are typically based on a contingency fee. This means instead of charging by the hour, the attorney with a contingency fee arrangement takes a percentage of the plaintiff’s overall wrongful death verdict or settlement.

If the attorney cannot recover damages once accepting a wrongful death case, you typically owe nothing in attorney’s fees. Law firms take the risk associated with unlawful death litigation by offering free consultations and providing representation without any up-front costs or out-of-pocket expenses. There is a nominal risk if any in confidentially contacting a wrongful death attorney about recovering compensation for a loved one’s untimely passing.