Wrongful Death

Wrongful Death 2017-09-07T18:09:59+00:00

Losing a loved one is always difficult, but never more so than when that person is taken from you through the negligence of another person. The California legislature understands how traumatic this type of loss can be, and how difficult it may be for a family to move forward after the death of a loved one. That’s why California law allows certain close relatives and other dependents to sue for wrongful death.

Who May File a Wrongful Death Claim?

The law specifically lists those who may file a cause of action for wrongful death. In each case, the suit may be filed by the person himself or by the decedent’s personal representative on behalf of the family member or heir.

Those who may assert claims for wrongful death include:

  • The deceased’s surviving spouse or domestic partner
  • A child or children of the deceased
  • If the decedent was predeceased by a child, that child’s surviving children
  • Certain other dependents of the deceased, including
    • A putative spouse (a party to an invalid marriage who believed in good faith that he or she was married to the deceased)
    • The minor children of a putative spouse
    • Stepchildren
    • Parents
    • Any minor who resided with the deceased for the previous 180 days and was dependent on the deceased

Although there may be more than one person with a right to pursue damages for wrongful death, only one claim may be filed based on an individual death. A person bringing a wrongful death claim must generally sue on behalf of all of those with rights under the California wrongful death statute, unless the others actively choose not to participate.

Causes of Action for Wrongful Death

A wrongful death claim may be filed when the death was caused by “the wrongful act or neglect of another.” In plain English, that means that a wrongful death claim may be filed against a person or entity who wrongfully caused another’s death, whether intentionally or negligently.

Negligence-Based Wrongful Death Claims

Because a wrongful death claim may be based in negligence, these claims are often based on the same types of incidents that would have led to a personal injury claim if the victim had survived. To establish liability in a negligence-based wrongful death case, the plaintiff will have to demonstrate that the defendant had a duty of care, that the defendant breached that duty of care, and that his or her breach caused or substantially caused the death. For example, a driver has a duty to observe the speed limit, and generally to exercise due care for the safety of other drivers and pedestrians when operating a motor vehicle. A speeding driver who kills a pedestrian because he is traveling too fast to avoid striking her has breached that duty. Because he breached his duty and that breach caused the accident that resulted in the pedestrian’s death, he may be held liable for wrongful death.

Some common examples include:

Auto Accidents

Automobile accidents, including car accidents, truck accidents, and motorcycle accidents, are among the most common types of wrongful death claims. Tens of thousands of people are killed in motor vehicle accidents each year. A wrongful death claim may also arise when a bicyclist or pedestrian is killed by an automobile.

Negligent behavior that may lead to a wrongful death claim based on a car accident includes:

  • Drunk driving
  • Distracted driving, such as texting or emailing while driving
  • Speeding or reckless driving

These are some of the clearest and most dangerous negligent behaviors behind the wheel. However, any negligence in driving or vehicle maintenance may form the basis for a wrongful death claim, if that negligence caused the accident that killed the victim.

Medical Malpractice

Medical errors are now the third leading cause of death in the United States. A recent study led by a professor of surgery at Johns Hopkins University School of Medicine revealed that mistakes in hospitals and other medical facilities lead to more than 250,000 deaths each year. These errors may occur for a variety of reasons, including:

  • Medication errors
  • Doctor negligence
  • Improper or insufficient training
  • Inadequate systems and safeguards
  • Surgical errors
  • Anesthesia errors

In this type of case, there may be multiple possible defendants in a wrongful death claim. For example, in the case of a surgical error, liability may lie with the hospital, the surgeon, staff who prepared the operating room, nurses supplied by an outside staffing company, another party, or any combination of parties.

Premises Liability

Wrongful death claims may also be based on accidental deaths occurring as the result of negligent maintenance of property, or negligent security measures in certain situations.

Some examples may include:

  • A drowning death at a public pool with inadequate safety procedures
  • A slip and fall injury on uncleared or negligently cleared ice
  • Death resulting from negligent set-up or maintenance of an amusement park ride

Security-related claims may arise if the property owner has reason to know that there are dangers impacting residents or visitors and fails to take appropriate measures. For example, the owner of an apartment complex who is aware that there has been a series of robberies in the parking lot, but who does nothing to protect or warn those using the lot, may be liable for wrongful death if a resident arriving home late at night is killed by a mugger.

Other Wrongful Death Causes

Motor vehicle accidents, medical malpractice and premises liability are just a few examples of negligent behaviors that may lead to wrongful death litigation. Some other examples include:

  • Defective products
  • Environmental toxins
  • Work-related accidents or exposure

Intentional Acts Leading to Wrongful Death Claims

A relatively small percentage of wrongful death claims result from intentional acts rather than negligence.  These claims are frequently, but not always, based on criminal activity. California is one of the few states that allows for wrongful death claims as a result of infliction of severe emotional distress that leads to suicide.

Often, wrongful death claims based on an intentional act are more difficult than those based on negligence, and the plaintiff may be less likely to collect. That’s because insurance policies generally don’t cover intentional acts. Thus, even if the family of the deceased is able to prove wrongful death based on an intentional act and win a judgment, it may be impossible to collect on the judgment. One exception is when the defendant is a large corporation or otherwise has significant assets.

In most cases, it is easier to secure compensation for wrongful death caused by negligence.

<h2>Damages in Wrongful Death Cases</h2>

Unlike many states, California does not place a limit on the amount of damages that may be awarded in a wrongful death case. However, only certain types of damages are permitted. These damages are generally broken out into two categories: economic damages and non-economic damages.

Economic Damages in Wrongful Death Cases

Common examples of economic damages include:

  • Replacement of financial support that the deceased would have provided had he or she not been killed
  • Compensation for loss of services the deceased would have provided, such as housekeeping, child care and meal preparation
  • Funeral and burial expenses may be awarded to the estate
  • Medical expenses incurred as a result of the injury that led to death may be recovered by the estate

The amount and extent of these damages will vary, based both on the amount of support provided by the deceased prior to death and the expected duration of the support. For example, a surviving spouse will typically be entitled to compensation for the support he or she might have received for the rest of his or her life. However, a minor child may be entitled to support only until he reaches the age of majority, or perhaps through college.

Non-Economic Damages in Wrongful Death Cases

Non-economic damages generally include damages for:

  • Loss of love, support, companionship and related benefits of the relationship with the deceased
  • Loss of sexual relations with a spouse or domestic partner
  • Loss of guidance and education due to the loss of a parent

Unlike economic damages, non-economic damages are difficult to calculate. The jury has significant discretion in determining the value of non-economic losses, particularly since California does not cap damages awards in wrongful death cases.

Talk to an Experienced Wrongful Death Lawyer

In most cases, eligible family members and dependents have two years to file a wrongful death claim. However, it may be a mistake to delay seeking legal advice. The procedures and requirements associated with prosecuting a wrongful death claim are complicated, and people unfamiliar with the legal system can easily make mistakes that can harm their claims.

In addition, the passage of time may make it more difficult to assemble evidence and build a strong case. For example, as time passes:

  • Witnesses may be difficult or impossible to locate
  • Witnesses may not clearly remember the events, or it may be easier for the defense to call their recollections into question
  • Physical evidence may be lost or destroyed

In addition, the complex procedural requirements involving the joining of all eligible parties may make it more difficult to coordinate the filing of a wrongful death claim.

If you have lost a loved one to someone else’s negligence, or your loved one was intentionally killed, your next step should be to schedule a free consultation with a wrongful death attorney. You owe it to yourself and your family to educate yourself about your rights and options.


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