In a matter of seconds, human life may be ripped away as a result of a catastrophic accident. The tragic experience for a family of losing a loved one through no fault of their own is hard to comprehend. The loss of a loved one seems unfair and unjust, leaving a void in the hearts of many. Common causes of wrongful death include vehicle accidents, product defects, workplace injuries, and even dangerous conditions on property.
In fact, motor vehicle accidents are the number one cause of personal injury deaths for people ages five years to 34 years. In the United States, there were 32,719 deaths in 2013 resulting from 30,057 motor vehicle crashes. Moreover, accidents resulting in serious injuries and fatalities that involve collisions between vehicles and pedestrians or cyclists are reported to be particularly common in Los Angeles. The opens in a new windowNational Highway Traffic Safety Administration’s statistics show that Los Angeles has triple the pedestrian and cyclist accident rate compared with the national average, 33 percent compared with 11.4 percent.
Under a wrongful death cause of action, heirs are entitled to recover damages on their own behalf for the loss they have sustained by reason of the victim’s death. One example is Corder v. Corder, 2007, 41 Cal.4th 644, 651. The elements of a wrongful death action are negligence by a third party that causes damages suffered by the heirs of the decedent. The plaintiff must prove the third party owed a duty to the decedent and breached that duty. A notable citation is Lattimore v. Dickey, 2015, 239 Cal.App.4th 959, 968. Heirs who have standing to sue for wrongful death include the spouse and surviving dependent children; a defacto partner or domestic partner and any dependent children; surviving parents or siblings of the decedent, and their children; and any other person who may have been dependent of the decedent.
What Can a Person Claim in a Wrongful Death Lawsuit?
A cause of action for wrongful death is a statutory claim that compensates specified heirs of the decedent for losses they suffered because of a decedent’s death. A wrongful death action compensates an heir for his or her own independent pecuniary losses. Therefore, damages are limited to the heirs’ loss, including the following:
- The loss of the decedent’s financial support, services, training, and advice
- The pecuniary value of the decedent’s society and companionship
- Funeral and burial expenses
Heirs may not, however, recover for such things as the grief or sorrow attendant on the death of a loved one.
When Can a Wrongful Death Lawsuit be Filed?
There are several factors that must be in play before a family member or group of family members can file a wrongful death suit:
- A person must have died.
- The death must have been caused by another person’s negligence, or their intention to do that person harm. The intention need not have been to kill the person.
- The surviving family members are dealing with financial problems because of the loss of the person.
- Someone has been appointed as the representative for the deceased’s estate.
For any lawsuit to move forward, it technically must come from the estate of the deceased person. The family members of that person can establish this. They must set it up in the courthouse of the county where the person who died was living at the time of their death.
When putting together a wrongful death case, the plaintiff’s burden of proof is to provide a preponderance of evidence to prove a person’s liability for the victim’s death. This is a lower standard than what a criminal prosecutor must achieve when trying to convict someone of a felony. They must prove a person’s guilt beyond a reasonable doubt.
Limitations of Wrongful Death Lawsuits
In California, if a family member wants to file a wrongful death lawsuit, they have two years from the date of the accident that caused the death to file their case. If they fail to file in that timeframe, they will automatically lose their case. It is important for family members to keep this window in mind if they suffer a catastrophic loss of a loved one.
The only exception is if the death was due to medical malpractice, in which case the family has three years to file a claim against the liable party. In those cases, the surviving family members must demonstrate that the liable party caused an injury to the victim because of a negligent act or a failure to act.
There is also some flexibility as to when the two-year time limit begins. In some cases, it can be the incident that causes the death or the death itself. In many cases, the courts will apply the so-called Discovery Rule, which determines that the start of the timeframe begins when the victim’s family members discover that the person has died.
The schedule is altogether different for a minor planning to sue for the loss of a loved one such as a parent. If the minor is the only plaintiff in the lawsuit, their statute of limitations is two years from the time they turn 18 years of age. For instance, if a 13-year-old loses a parent in a construction accident, they do not have to file a lawsuit by the time they turn 15; they have until they turn 20. Therefore, they have approximately seven years to file a suit.
For those looking to file a wrongful death suit at the federal level, the statute of limitations for those cases is also two years. However, there can be some flexibility with this time frame. If the federal government denies a wrongful death claim, it triggers a six-month window in which the claimant has to request a reconsideration of the administrative claim or a federal lawsuit. The six-month period exists outside of the original two-year time frame. In other words, if a claim is denied with still a year left on the original timeframe, the claimants still have only six months to file that reconsideration.
Some examples of cases against a government entity include the following:
- An accident at a public school
- A car accident with a government-owned vehicle
- A malpractice case at a government-owned medical facility
Incidents that Can Lead to a Wrongful Death
When family members of a deceased person are looking for compensation because of the loss of a loved one, there must be an inciting incident that caused that death. As mentioned, a person’s deliberate or negligent action has to have led to that person’s death. That event could have taken place with some incident such as the following:
- Car accidents. These could be a simple negligent move in which a person was killed as a result of an accident or something more criminal, such as when a person is fatally injured by a drunk driver.
- Pedestrian knock-downs. In these instances, a driver may not be paying attention to the road and accidently hits a pedestrian with their car.
- Slip and fall accidents. A slip and fall accident can take place at work or out in public. If a slippery surface causes a person to fall and hit their skull or suffer another severe injury and die, the company could be held liable for that situation.
- Drowning. If a person drowns in a pool that is not properly secured or a township or state fails to supply lifeguards or fails to put up warning signage, that government entity could be considered responsible for the death.
- Assault and battery. If a person physically attacks another person and causes their death, they can be sued. The person may not have intended to kill the victim, but as long as they intended to do harm, they are responsible.
- Murder or manslaughter. If one person kills someone deliberately or accidently kills them as a result of their action or indirect action, they are liable for that death.
- Elder abuse or neglect. This tends to apply to caregivers, doctors, or nursing home officials. They might forget a patient or even mistreat them, which could lead to their death.
- Child abuse or neglect. If a parent or guardian assaults a child or is not properly watching them and the child dies as a result, the parent can face a wrongful death claim, among other charges.
- Medical malpractice. If a doctor or nurse acts negligent in the administration of treatment or during surgery, the family members have the right to sue that person within three years of the incident.
- Negligent security. If a property owner does not provide adequate security and protection to ensure their premises are safe and someone loses their life as a result, they may be held liable.
Incidents such as these can lead to the death of a loved one and cause significant trauma for those left behind. It is important for victims to remember their rights in these situations and to seek out an experienced wrongful death lawyer who can help.
Survivorship Differs from a Wrongful Death Claim
Distinct from a wrongful death cause of action is an alternative theory of recovery for the death of a loved one under a survival action. A wrongful death claim is separate and distinct from the victim’s action which survives to the estate. California Code of Civil Procedure sections 377.10, et seq. establish rules relating to these kinds of actions, which are commonly called survivor or survivorship actions. In the typical survivor action, the damages recoverable by a personal representative or successor in interest on a decedent’s cause of action are limited by statute to the loss or damage that the decedent sustained or incurred before death, including incurred medical expenses, wage loss, and any penalties or punitive damages that the decedent would have been entitled to recover had the decedent lived. This does not include damages for pain, suffering, or disfigurement.
All wrongful death cases are brought under the terms of state law. In California, there is only one joint wrongful death claim allowed against a defendant. That means that all possible heirs to the decedent must bring the claim jointly. This is known as the One Action Rule. In fact, if there is another person who may be entitled to be represented by the action, that person must be declared at the time of the claim being submitted as a nominal defendant.
The Lawyer’s Role in the Case
Once the family hires a lawyer to take their case, they will immediately begin researching and learning all the facts and circumstances of the case. Once the lawyer has a basic idea of what happened and how it happened, he or she can begin to build the case and determine if they want to pursue the case or make an attempt to settle it out of court.
- Investigation and research. In the initial stages, the lawyer will first speak with those involved, including the plaintiffs. The lawyer will speak with those who witnessed the incident that lead to the death and determine the level of liability. He or she will also reach out to the victim’s insurance carrier to inform them that they are representing the family’s interests in the matter. Finally, the lawyer will reach out to medical experts or others in the case involving an auto accident or medical malpractice.
- Legal research. The next and potentially the most arduous step for the lawyer is to research case law and the legal system to determine what regulations the case falls under and if there are any precedents that will help boost the case. This is also when the lawyer will determine if any regulation or precedent works against the case and prepare accordingly. They will be looking for basics from who can sue to in what jurisdiction they need to file the lawsuit and other related details. The research the lawyer conducts will determine whether the family’s case is viable.
- Once the lawyer decides that the case is viable to move forward, they will begin to put together what is called a demand package that they will send to the insurance company. Unless the liability is clearly evident, in most cases the insurance company will reject the claim. However, this acts as a first step in the process.
Depositions in Wrongful Death Cases
During the initial research portion of a case, some of the lawyers might require depositions from some of the witnesses, including the family members of the deceased person. A deposition is a formal statement that witnesses provide to lawyers as part of an ongoing case. During a deposition, a witness is placed under oath and will be subject to direct examination by a lawyer. The questions during a wrongful death deposition must be relevant to the case. The lawyer is not allowed to ask random or spontaneous questions.
Although some plaintiffs might find the process intimidating, they can speak with a lawyer ahead of time who can help them prepare for the process. They can explain what the process will entail and the various steps.
To start the proceedings, everyone in the room will be identified and someone will give a quick explanation as to what is about to take place. The witness will then be sworn in, and the lawyer will begin their questions of that person. Generally, the witness will be asked a few questions about the wrongful death, including the following:
- Any documents the witnesses might have that will help in the case
- The witnesses’ background and any criminal record
- The timeline of events as the witness remembers them in the case
- The witnesses’ familiarity with certain documents
- Any potential allegations against those involved in the case
- The basis for requested financial awards
Witnesses must remember that when they participate in a deposition, they will do so under oath, meaning they are under threat of perjury to tell the truth. It is the same as if they were testifying in open court.
Not all depositions take place in this manner, as sometimes a written deposition is used. In a written deposition, a lawyer provides written questions to the witness, who must answer them as truthfully as possible. The benefit for all involved is the convenience of answering the questions at the witness’ leisure and not having to bring multiple people together at one time. The inconvenience for lawyers is it prevents them the opportunity from asking any follow-up questions of the witness.
When the Case Begins
After the lawyer conducts thorough research of the case and determines that the case is viable and it justifies moving forward, the family will have to meet with the lawyer and tell their story. The story becomes the complaint, which the lawyer then files with the court. Once this filing takes place, the process formally begins. It also triggers a timeframe for the defendant, in which time they must respond to the complaint.
The defendant might file a formal response. They could also ask for the judge to dismiss the suit outright over a variety of reasons. Some of those reasons could be procedural in nature, such as the person filing does not have standing. The reason may not have to do with the facts of the case. Another option for the judge is to order a stay in the case, which is to put the case on hold. This aspect of the case can last approximately nine months.
Discovery. The discovery phrase of a lawsuit takes place before the trial and is the time before the two sides meet in court. During discovery, the two sides exchange their evidence, and this is the opportunity either side can object to the inclusion of a particular piece of evidence. Some of the evidence will include formal documents along with interrogatories, which are written questions and answers for both sides to answer. At this stage, the lawyer will be crafting a response to the different documents and developing his case.
Ending the case early. In many instances, one of the two sides might file what is called a motion for summary judgment. In this procedure, one side is asking the judge to make a ruling on the case at that point without allowing it to go to the jury. In most instances, this is another attempt by the respondent to claim that the plaintiff has failed to meet their burden; therefore, there is no reason to take the matter further. If the judge decided that the case will move forward, the desire to settle on the part of the respondent increases, as there is no telling what a jury might do. With a settlement, the respondent at least has some control over the amount of money they must pay. The weeks leading up to a trial tend to be the time in most cases when a settlement is reached.
The trial. This is the major portion of the process in which the lawyer for the deceased’s family will present plaintiffs’ case, including witnesses and any evidence the lawyer has to demonstrate that negligence or something more direct led to the death of their client’s family member. The respondent will also have the opportunity to present evidence that will contradict what the plaintiffs argued. After both sides have presented their case, a jury will deliberate and provide their verdict. Up until the jury makes its verdict, both sides can still negotiate a settlement, and one side can still ask and be granted a motion for summary judgment. Once the jury’s verdict is read, both sides can appeal the decision, but in the end, both sides must oblige with what the jury decides.
Los Angeles Wrongful Death Lawyers at ACTS Law Fight for Families’ Legal Rights
If you or someone you know has died in an accident that you believe involved a negligent party, the Los Angeles wrongful death lawyers at ACTS Law will work hard to pursue a wrongful death case on your behalf. Our legal team has vast experience in these types of cases, and we are dedicated to making this process as easy as possible. If you have lost a loved one as a result of someone else’s wrongful conduct, you must learn more about your legal rights. We can help you achieve the appropriate compensation for the harm you or a loved one has suffered. To schedule a free, confidential consultation, call us today at or contact us online.
With offices in San Diego and Los Angeles, we serve clients throughout Southern California.