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A “wrongful death” occurs when a fatality results from the negligence, recklessness, intentional harm or misconduct of another individual, company or entity. An action for wrongful death belongs to the decedent’s (dead person’s) immediate family members (often called “distributees”). The most common distributees are surviving spouses and children, and sometimes parents. A suit for wrongful death may only be brought by the personal representative of the decedent’s estate. Every state has a civil “wrongful death statute,” or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent’s death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent’s will.
A wrongful death claim may arise out of a number of circumstances, such as in the following situations:
• Aircraft accidents
• Automobile and bus accidents• Exposure to known toxins (including asbestos and benzene) or hazardous conditions
• Medical malpractice that results in decedent’s death• Railroad accidents• Recalled (or unsafe) medications• Slip-and-fall accidents• Unsafe products• Work-related accidents
Elements of a Wrongful Death Lawsuit
In order to bring a successful wrongful death cause of action, the following elements must be present:
The death of a human being;
Caused by another’s negligence, or with intent to cause harm;
Surviving family members who are suffering monetary injury as well as pain and suffering from the loss of a loved one, and;
The appointment of a personal representative for the decedent’s estate.
Following a Wrongful Death
Loved ones of wrongful death victims should set up an initial consultation with an experienced lawyer at the Law offices of Howard B. Herskowitz, P.A. During this meeting, prospective plaintiffs can:
• Find out if they have a provable legal claim.
• Get a better understanding of the process associated with winning a wrongful death lawsuit.
• Learn more about settlements in similar cases.
• Get advice about whether filing an individual case or joining a class-action lawsuit is better for their situation.
These initial consultations are free, as a way to encourage loved ones of wrongful death victims to seek the compensation they deserve.
• Access to a network of experts who will verify their wrongful death claims when testimony is needed in legal proceedings.
• Professional representation in court, arbitration and/or mediation proceedings.
• Help negotiating with corporate lawyers and dealing with insurance agents.Damages in a Wrongful Death Lawsuit Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted “pecuniary injuries” as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent’s death. If the distributees paid or are responsible for the decedent’s funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent’s death. Determining Pecuniary Loss When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the distributees. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in awarding damages is the decedent’s circumstances at the time of death. For example, when an adult wage earner with dependants dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent’s earnings at the time of death, the last known earnings if unemployed, and potential future earnings. Adjustments in the Jury’s Award In a wrongful death action, the jury determines the size of the damages award after hearing the evidence. The jury’s determination is not the final word, however, and the size of the award may be adjusted upward or downward by the court for a variety of reasons. For example, if the decedent routinely squandered his income, this might reduce the family’s recovery. Similarly, the courts will reduce a jury’s award if the decedent had poor earnings, even though he was young, had great potential, and supported several children. At the same time, a jury may award lost earnings despite the decedent’s having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent’s average earnings while employed. If the plaintiff fails to present such evidence of the decedent’s average earnings, the court may set aside the jury’s damage award and order a new trial. Using Expert Testimony to Determine Pecuniary Loss Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife’s services, experts may aid the jury in this evaluation. Punitive Damages Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible. Attorney Howard B. Herskowitz will be able to advise you as to whether Florida allows punitive damages. Contact us online or call us at 954-764-4750 for more information or to schedule a free consultation.