When a person dies because of another person or entity’s negligence, the deceased’s loved ones may be able to bring a wrongful death claim. To file a wrongful death claim, you need to understand how exactly it works, including who can bring this type of claim.
Like a personal injury claim, a wrongful death claim includes damages like medical expenses, lost wages, and pain and suffering the deceased experienced before they died. The difference is that the claim is being filed on behalf of the deceased by either a family member or a representative of the person’s estate.
When Can Someone Bring a Wrongful Death Claim?
A wrongful death claim applies when the person who died who have otherwise been able to make a personal injury claim for someone else’s negligence. Since that person can no longer make an insurance claim for their damages, a loved one or estate representative can do so on their behalf.
To bring a wrongful death claim on behalf of a loved one who died, you must be able to prove four elements:
1. Breach of Duty
Everyone has a legal duty of care to act in a way that doesn’t cause harm to other people. In a wrongful death case, you must be able to prove the at-fault person or party (defendant) owed a duty of care to the person who died.
Examples of duty of care include:
- A car or truck driver has a duty to follow traffic laws and not drive distracted on the road.
- Doctors have a duty to responsibly care for their patient’s health without doing harm.
- A property owner has a duty to maintain their premises and fix hazards that could harm visitors.
- Product manufacturers have a duty of care to test their products and ensure they’re safe for consumers.
Along with demonstrating the defendant held a duty of care, you must also be able to show that they breached that duty of care. For example, if a loved one was killed in a car accident, your wrongful death claim would have to show the other driver had a duty to drive safely and that they breached that duty by driving while distracted.
2. Negligence and Causation
Those bringing a wrongful death case must also be able to show the deceased’s death was caused by the defendant being negligent, reckless, or careless. In other words, they breached their duty of care and it led to the victim’s death.
If the defendant is found to be at fault for the deceased’s death, they are legally liable for damages the victim suffered.
3. Listing Damages
The last element of a wrongful death claim damage. The victim’s death must have led to damages like any of the following:
- Medical bills
- Hospital expenses
- Loss of income
- Burial and funeral costs
- Loss of companionship
- Pain and suffering damages
In some cases, those bringing the claim may also be able to punitive damages, which are meant to punish the defendant and discourage future wrongdoing. These are more common in drunk driving cases.
Proving each of these elements in a wrongful death suit often calls for strong evidence of each point. Sometimes it requires additional work like a witness or expert testimony. This is why many loved ones choose to (and highly benefit from) work with an Atlanta wrongful death lawyer.
It’s important to note that the victim’s death does not have to be intentional to have a wrongful death case. The cause also doesn’t have to be malicious, although it is in some cases. The defendant just needs to have been careless or negligent in their duty. Many wrongful death cases result from auto accidents where the driver made a mistake out of negligence.
The only exception is injuries that result in death while the victim is at work. Most of the time, these are handled through workers compensation claims.
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Who Can Sue for Wrongful Death?
Only certain people can bring a wrongful death claim.
The rules vary depending on the state you live in, but in Georgia, the laws say the spouse of the deceased can bring a wrongful death claim first. If the deceased and their spouse had minor children, the spouse may also represent those children in the case. However, regardless of how many children there are, the spouse must receive at least one-third of the settlement amount.
If the deceased has no living spouse or children, one of two other parties may bring the claim:
- The parent or parents of the deceased
- A representative of the deceased’s estate
How Do You File a Wrongful Death Claim?
Once you’ve determined you’re able to file a wrongful death claim on behalf of the deceased, you’ll want to be aware of your state’s statute of limitations. This is the amount of time you have to file your case before you could lose the right to do so.
In Georgia, the statute of limitations is two years from the date of the death. However, there are situations where this varies, so it’s helpful to consult with a wrongful death lawyer if you’re unsure.
To begin a wrongful death lawsuit, you’ll need to file the appropriate documents. The first document is usually a complaint or petition that gives the defendant notice of the facts and legalities of the case. In the lawsuit, you’ll also need to file a summons document letting the defendant know they are being sued and where the hearing of the lawsuit will take place.
You’ll also need to prove the elements of a wrongful death case mentioned above as well as compile evidence all damages. That means keeping track of all costs from the accident, including medical costs the deceased faced before and after their death.
Do You Need a Lawyer to Start a Wrongful Death Case?
You aren’t required to have an attorney in personal injury cases. However, it’s recommended in most situations—especially wrongful death cases.
Most surviving family members are already overwhelmed with mourning their loss and trying to put things back together. Plus, there’s usually a tremendous financial strain from the costs of the accident and putting their loved one to rest. Hiring a lawyer puts a legal professional on your side who can handle your case as you spend time handling life.
Plus, most wrongful death lawyers (like John Foy & Associates) work on a contingency fee basis—meaning they don’t require payment until after your case is settled. And they don’t get paid unless they win you money.
Get Help with Your Wrongful Death Claim
At John Foy & Associates, we’ve been helping loved ones file wrongful death claims for more than 20 years. We know how painful it can be recovering from your loss, and we’re ready to guide you through the legal process with as little stress as possible on your side. Call us today for a FREE consultation at 404-400-4000 to simply fill out the online form on this page.