This article is a repost from www.nolo.com.
When someone dies due to the fault of another person or entity (like a car manufacturer), the survivors may be able to bring a wrongful death lawsuit. Such a lawsuit seeks compensation for the survivors’ loss, such as lost wages from the deceased, lost companionship, and funeral expenses. Here’s a primer on wrongful death claims — what they are, who can sue, who can be sued, and what damages may be recovered.
What is a Wrongful Death Claim?
A wrongful death claim exists when a person dies due to the legal fault of another person. The right to file a lawsuit for wrongful death is a relatively new concept. “Common law” (the laws brought to the United States from England) did not allow this kind of lawsuit. But during the last century, state and federal courts created the right to bring a wrongful death action. Every state in this country now has some kind of wrongful death law.
Wrongful death claims involve all types of fatal accidents from simple car accidents to complicated medical malpractice or product liability cases. Persons, companies, and governmental agencies can be legally at fault for acting negligently (failing to act as a reasonable person would have acted) and for acting intentionally.
Who May Sue for Wrongful Death?
A wrongful death claim must be filed by a representative on behalf of the survivors who suffer damage from the decedent’s death (they are called the “real parties in interest”). The representative is usually the executor of the decedent’s estate. The “real parties in interest” vary from state to state. Some of those people might include:
Immediate family members. In all states, immediate family members like spouses and children (including adopted children) and parents of unmarried children can recover under wrongful death actions.
Life partners, financial dependents, and putative spouses. In some states, a domestic or life partner, anyone who was financially dependent on the decedent, and a “putative spouse” (a person who had a good faith belief that he or she was married to the victim) have a right of recovery.
Distant family members. Some states allow more distant family members, such as brothers, sisters, and grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action.
All persons who suffer financially. Some states allow all persons who suffer financially from the death to bring a wrongful death action for lost care or support, even if they are not related by blood or marriage to the victim.
Parents of a deceased fetus. In some states, the death of a fetus can be the basis for a wrongful death suit. In several other states, parents cannot bring a wrongful death action to recover for financial and emotional losses resulting from the death of a fetus. In those states, the parents can bring a wrongful death action only if the child was born alive and then died. Check your state law and consult with an experienced wrongful death attorney to find out if such an action is allowed in your state.
Who May Be Sued for a Wrongful Death?
Wrongful death lawsuits can be brought against a wide variety of persons, companies, government agencies, and employees. For example, in a car accident involving a faulty roadway and a drunk driver, a wrongful death action might include defendants such as:
- the driver or employer at fault in the automobile accident
- the designer or builder of the faulty roadway
- a government agent who failed to provide adequate warnings regarding a road hazard that caused the accident
- the manufacturer, distributor, or installer of a faulty or dangerous part of the vehicle
- the persons who sold, served, or gave alcohol to the impaired driver, or
- the owner of the premises where the alcohol was served.
Immunity for Government Agencies and Employees
In some cases, certain persons or agencies may be immune from a wrongful death lawsuit. That means they cannot be sued for wrongful death. Who might be entitled to immunity again varies from state to state. For example, in some situations, government agencies and employees might be immune from a wrongful death lawsuit, or even family members in certain circumstances.
Recent federal laws provide immunity from wrongful death claims to defendants in railroad collisions and certain product liability cases involving medical devices. And in 2013, the U.S. Supreme Court decided (in a case known as Mutual Pharmaceutical Co., Inc. v. Bartlett) that makers of generic drugs can’t be held liable in a state court personal injury or wrongful death lawsuit based on the alleged “unreasonably dangerous” nature of a drug, since the FDA approved the original “name brand” drug and its labeling.
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