A wrongful death claim is the most unfortunate type of litigation. A wrongful death lawsuit is filed when a person is killed due to the fault of another person or business. This type of claim, also called a “survival action,” is similar to a personal injury claim, with some important differences.
1) The victim was killed rather than injured.
2) The lawsuit is filed by the victim’s family rather than by the victim.
3) Compensation is mainly for losses the family suffers as a result of the victim’s death.
The cause of death could be a workplace accident, a car accident, a malfunctioning tool or product, or unsafe conditions. Unlike standard personal injury claims, the suit is filed on behalf of the victim’s family rather than the victim. In Louisiana, the victim’s spouse and children, biological or adopted, have the primary claim. If there is no spouse, then the claim goes to the parents, then the siblings and finally to the grandparents. The claim seeks compensation for losses the family suffers as a result of the victim’s death.
As you might expect, the first questions to ask when pursuing a wrongful death action is:
1) How did the person die
2) Did someone cause the death in a negligent manner
The answers to these questions may not be immediately obvious. It may not even be clear how the death occurred, especially since the victim is deceased and can no longer say what has happened.
Determining Whether it Is a Wrongful Death Claim
Just like a personal injury claim, the cause of death must be the result of negligence by another. Whether the death is caused by a workplace accident, car accident, faulty product, or unsafe conditions at a hotel, rental house or other business, the first step is to determine if the person’s death was caused by negligence. Determining negligence can sometimes be more difficult than with personal injury claims. There could be conflicting reports from witnesses or no witnesses at all. So if you suspect that a loved one’s death is caused by negligence, you need have a real personal injury trial lawyer conduct a thorough investigation as quickly as possible.
The victim can sometimes be assigned a certain portion of fault, depending on the circumstances. For example, if the victim was rear-ended and killed in an auto accident, the other driver would be negligent. But if the victim’s brake lights were not working properly, the victim could be held partly responsible for the accident. There would still be a wrongful death claim, but the amount of compensation would be lowered.
Preserving the Accident Scene
When I am litigating a wrongful death claim, I will immediately contact an investigator to gather facts, photographs, accident reports and whatever is needed to document exactly what occurred. Many wrongful deaths happen at construction sites and other worksites. These sites rarely remain in the same condition as they were at the time of the death.
I handled a wrongful death trial involving a man in South Louisiana who was fatally crushed by an 18 wheeler while at work. Because the accident scene was investigated and photographed quickly, we were able to determine how the man was killed and verify that the driver of the truck was negligent, which led to a successful verdict of wrongful death.
Wrongful Death Claim Awards
Once negligence is proven, the experienced wrongful death lawyer will then demonstrate how the decedent’s family has been harmed. Losses, otherwise known as personal injury damages, may include wage loss, loss of consortium, funeral expenses, medical expenses and pre-death pain and suffering, with wage loss usually being the largest portion of the claim. For example, if a husband is killed on the job, his surviving wife and children have now lost the breadwinner of the family. An economic expert will estimate what the future wage loss will be, based on the man’s wage earning capacity and life expectancy. If the husband was 30 years old and making $40,000, the expert could estimate that the man would have made $1.2 million over his lifetime. That amount is subject to a discount because the family is receiving the money all at once and has the opportunity to invest the money and receive interest on it.
In addition to wage loss, a wrongful death suit recovers for the family’s emotional loss. This is the hardest part of a wrongful death. The family will never see their loved one again. Financial compensation obviously cannot erase the pain of losing a loved one, but it is the only way possible to offer compensation to the victim’s family. If you have lost a family member and believe another is at fault, you may contact my law office at (337) 704-2615 to see if you have a wrongful death claim. You have one year after the date of the death to file a Louisiana wrongful death lawsuit and less time to properly preserve the accident scene, so do not delay.