The sudden death of a family member is always a tragedy. This tragedy is often compounded if there is a reason to believe that such a death was unnecessary. Sometimes the facts surrounding a death are known, such as an accident and at other times some clearly unlawful act was the obvious cause of death. In both these cases, the surviving family members may consider filing a wrongful death lawsuit.
The State of California defines a wrongful death as any death that is “… caused by the wrongful act or neglect or unlawful violence or negligence of another.” Under this definition traffic accidents, homicide, voluntary and involuntary manslaughter, workplace accidents, and medical malpractice can be reasons for bringing a wrongful death claim.
Under California law if someone is prosecuted in a criminal court for an unlawful act that led to a death, the person charged with that crime can still be sued for wrongful death because the wrongful death claim is a civil action rather than a criminal one.
California recognizes two types of lawsuits based on a wrongful death. The first type is a wrongful death claim that seeks to recover financial losses that the surviving family members, such as a spouse or children, who depended on the support of the deceased’s income. The second type, known as a survival action, is based on the “pain and suffering” experienced by the deceased from the time of their injury until death. Since such pain and suffering occurred prior to death, the law assumes that the deceased would have filed had he or she lived and that potential claim “survives” and can be inherited like property. The pain and suffering can cover even pain and suffering from defective products, like a weight loss pill, or something else.
In California, a wrongful death lawsuit must be filed by a personal representative of the deceased’s estate. This representative can be a member of the immediate family, the executor of the deceased’s will, or it can be anyone that the surviving family wishes to appoint for that purpose. If, however, no lawsuit has been filed in the first six moths after the date of death a member of the immediate family may file on behalf of all family members.
Damages That Can be Recovered in a Wrongful Death Lawsuit
The purpose of a wrongful death lawsuit is to compensate the deceased’s family and dependents for their loss of support and the future goodwill and guidance that the deceased would have provided. These losses include, but are limited to:
There are other losses that may be recoverable in a wrongful death lawsuit. Questions concerning whether or not these other damages are appropriate should be discussed with one of our wrongful death lawyers following a review of the facts in your case.
California Sets a Time Limit for Wrongful Death Lawsuits
The State of California places time limits on when a lawsuit must be filed. These time limits are called the statutes of limitations and apply to any lawsuit filed with the courts of the state. In the case of a lawsuit alleging a wrongful death, the statutes require that such filings must be made within two years of the date of death. An important exception to the two-year rule is when a death leads to a survival claim.
In a survival action, the statute of limitations expires two years from the date of injury, not two years from the date of the death. This is because a survival claim is filed by the survivors on behalf of the deceased, as though the deceased was bringing his or her own lawsuit in person. Admittedly, this is a hard concept for those without legal training to grasp and needs to be understood in the light of personal injury law.
In California, the statute of limitations for a lawsuit in a personal injury that does not lead to a death case is two years from the date of the injury. Since a survival claim is made in the name of the deceased the claim falls under the personal injury statute of limitations, which expires two years from the date on which the injury occurred.
There are other exceptions to these rules, but these exceptions are technical in nature and are best discussed with one of our wrongful death lawyers.
Another issue that needs to be discussed with a lawyer is whether it is best to file a wrongful death or a survival action. Our wrongful death lawyer will be able to advise you which is the better choice of action after discussing the details of your case with you.
Filing a Wrongful Death Lawsuit
We understand that the weeks and months that follow the death of a family member are among the most stressful that you might experience. When a family member’s death was possibly due to the carelessness or even the criminal actions of another person, it is normal to feel angry or even betrayed if the person responsible was known to the deceased or the deceased’s family.
If you have found yourself struggling to decide on what to do after a family member’s death, we invite you to contact us to arrange a review of the facts surrounding your loss and a discussion of your legal options regarding your loss.
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