Losing a loved one can be the most difficult situation that one encounters in a lifetime, especially if the death is caused by a person’s negligence. To gain compensation for this immeasurable loss, there are 5 steps to follow when you file a wrongful death claim.
Knowing that someone else is at fault for your loss adds another dynamic to the grief. For some, there may be a small sense of consolation in ensuring that the wrong-doer is held accountable.
For others, seeking monetary compensation for the loss is a way of relieving a bit of the financial burden that the event has thrust upon them. Very rarely is it an unemotional scenario, which is one reason why many seek the counsel and support of an experienced wrongful death attorney during such time.
When deciding whether to move forward in a wrongful death claim, there are some aspects which are helpful to be aware of.
5 Steps to File a Wrongful Death Claim
In addition to being mindful of the statute of limitations for filing a wrongful death lawsuit– which is usually two years from the event which resulted in the death – it can be beneficial to preview the elements of the process.
Knowing what to expect, and what will be required of you, can also help you to decide on the level of commitment that will be called for.
Here is an overview of five steps to follow while seeking to prove your claim of wrongful death.
1. Determine Whether Wrongful Death Applies
What makes something “wrongful”? The event would not have occurred if everyone was doing the right thing at the time. With a wrongful death claim, survivors of the deceased are asserting that someone failed to perform a duty. This failure can be on purpose, or it can be due to carelessness.
These ideas form the basis of establishing intention, or negligence, as the cause of death.
With asserting that there was intention involved, you will need to prove that the offending party acted in malice or spite. Negligence charges are more common, and can be a matter of oversight, laziness, or being inept in a duty.
Certain expectations for behavior exist at each level of our society. This includes our own personal responsibility, or the standards that are placed upon a business. Therefore, failing in such duties constitutes negligence.
In both cases, those filing will need to show that the other party had a “duty of care” which was not fulfilled. A duty of care is the legal term for acting in a way which is considered reasonable in a given situation.
This duty can be immediate – such as in the case of a driver who is expected to follow traffic laws. Or, it can encompass foresight – such as for an apartment developer who knows that multiple people will be dwelling in the structure. Regardless of the cause of the death, there is a duty of care.
The law assumes that we will exercise prudence when completing tasks that can affect the lives of other people, and failure to do so can form the basis of a wrongful death claim.
2. Decide Who Will Be Filing
California law allows for those who were directly dependent upon the deceased to bring the matter to court during a wrongful death claim.
This list of dependents includes a
- Surviving spouse or partner
- Surviving children
- Minors who received half or more of their support from the victim
- Those who are otherwise named as receiving property from the deceased
- It also includes parents of the deceased, if such parents were financially dependent upon the victim
In most cases, the surviving members of the family will choose someone to act as a representative in the proceedings. This personal representative will need to be one that is approved by the courts, and is most often the person who has been named representative of the estate of the deceased.
If no such person has been named – such as in a trust or will – one may first need to be established through the probate process.
3. Gather Evidence
The burden of proof for the wrongdoing of the other party will fall on the one who files the claim.
You must prove that, more likely than not, the deceased person would not have died if the other party was acting responsibly. This proof typically shows that the other party failed to follow some previously established law. The failure to follow this law then directly contributed to the death of the loved one.
By way of supporting this assertion, you will want to gather eye witnesses, and include any experts who will be able to support your recounting of the incident.
4. Determine Damages
The only relief which can be achieved in a wrongful death claim comes in the form of financial damages. These damages can include
- Medical bills
- Lost wages
- Funeral expenses
- Loss of sexual relationship
- Monetary equivalence for the pain and suffering
- The possibility to sue for punitive damages, which is a means to penalize the entity for the misdeed. This is used to provide a deterrent against such misdeed happening, to others, in the future.
It is common for the defending party to attempt to offer a settlement, in lieu of continuing in court. This offer can be made at any point during the process, and can be made multiple times.
If you have already established a ballpark figure for compensation which you find fair, it can make the task of deciding on whether to take the settlement offer more simple.
A lawyer can help you to determine what amount of compensation applies in your case. They can also assist in negotiating a settlement or advising you on the applicability of any offers.
5. Navigate the Court Process
A judge will decide whether the other party did, indeed, have a duty of care, and will make orders to go forward based on this establishment. This determination will move the hearings to the next level. Here, the plaintiff must provide the evidence that such duty was not fulfilled.
If successful in this endeavor, the judge will make orders, and you will begin the process of collecting your settlement.
Although the wrongful death claim process is only five steps, it can be difficult and confusing to navigate. If you have suffered the wrongful death of a loved one, please contact our attorneys today.