Suffering through a loved one’s death is an absolutely shattering experience. No one should have to live through that, but the unfortunate truth is that many people do. In cases where someone else is responsible for their death, it is possible to receive some sense of justice and closure by suing them for wrongful death. These types of lawsuits are complex and require the deft hand of an experienced personal injury attorney. If you live in the city of Los Angeles or in the wider metropolitan area, contact Los Angeles Personal Injury Attorney to help you start building your case today.
The Basics of a Wrongful Death Lawsuit
If a person or entity (the defendant) is responsible for the untimely and wrongful death of a person (the decedent), either via negligence, recklessness, and/or an intentional act, then they may be held legally liable for their misconduct. As a relative of the defendant (the plaintiff), you can sue the person responsible in civil court.
The Code of Civil Procedure of California, part 377.60, explicitly delineates that the plaintiff has the right to file such a lawsuit and receive financial compensation known as damages. It is crucial that the plaintiff hire a personal injury attorney to mount an effective case and ensure the highest possible amount of damages. The particulars of the situation will dictate how the attorney intends to structure the case. Furthermore, it is important to note that as the plaintiff in a civil lawsuit, it is your responsibility to prove the allegations you are making; namely, that another person’s actions and/or negligence caused the death of your loved one.
Finally, every wrongful death case has what is called a statute of limitations. This means that the plaintiff has a limited amount of time to file the lawsuit from the date of death. In California, under most circumstances, it is two (2) years from the moment that the decedent passed away. There are various exceptions to this rule, however, and a personal injury attorney will help you determine if you are eligible to still file a claim. Even if you have surpassed the statute of limitations, you might still be able to convince the judge that the case is valid.
You must communicate the details of the incident to your attorney. If the defendant is a government agency or entity, then you only have six (6) months to file the first wrongful death claim. If the defendant is a clinician or doctor and you are filing a wrongful death suit under medical malpractice, you generally have three (3) years before the statute of limitations runs out or one (1) year from the day that most people would reasonably realize the defendant was causing harm. These various exceptions are best handled by personal injury attorney with experience in these cases.
Who Can File A Wrongful Death Lawsuit?
Various relatives and loved ones of the decedent can bring forward a wrongful death lawsuit. California law (CCP 377.60) specifies that the following can file the lawsuit:
- The spouses of the decedent.
- Registered domestic partners of the decedent under California Family Code section 297(b).
- Any of the decedent’s legal children, including both adopted and biological progeny.
- If the decedent’s children are not living, then their grandchildren may file the lawsuit.
- Any other minor dependents, including stepchildren, who relied on the decedent for at least half of their financial support.
- Any other heirs of the decedent under the intestate succession laws of the state of California.
- The legal representatives of any of the above.
Please note that intestate succession refers to when a decedent does not have a valid and/or actionable will that explicitly lists their heirs in the event of their death. In these situations, the state of California steps in and effectively doles out the property and assets based on a legally recognized system of heirs. In essence, if a decedent has no will, the state will create one.
Any minors who wish to file a lawsuit have a longer statute of limitations. They may file a lawsuit two (2) years from the moment that they come of legal age; in other words, once they turn 18 years old they can file the wrongful death claim within two (2) years.
Furthermore, most wrongful death lawsuits are accompanied by survival cause of action suits. These are codified in Code of Civil Procedure of California subsection 377.30. They are essentially the same as a wrongful death lawsuit, except that the plaintiff in these cases is the estate of the decedent. The estate is basically filing a lawsuit on the decedent’s behalf; the decedent’s ability to sue whoever harmed them “survives” their literal death.
Wrongful death and survival action suits are usually filed concurrently and complement each other in the civil proceedings. A personal injury lawyer may advise you on how best to pursue both as the kinds of potential damages vary slightly in each lawsuit.
What Kinds of Acts Constitute a Wrongful Death Claim?
A plaintiff may file a claim of wrongful death for a variety of reasons. The most common are:
- A motor vehicular accident. This includes instances of being killed by a reckless or a drunk driver, whereby the damages would be greater in each case due to greater culpability on the part of the defendant.
- A car accident involving a pedestrian. These are colloquially known as pedestrian knockdowns and occur when a driver, either intentionally or accidentally, strikes a pedestrian with their car. If the driver acted with “extreme or outrageous conduct” then the damages will be substantially higher.
- A premises liability This occurs when someone who is overseeing a specific space is negligent and thereby causes unsafe conditions. For example, “slip and fall” accidents fall under this category, where the decedent fell in a store or private building.
- Medical malpractice. This occurs when a doctor or clinician fails in their professional duties to care for a patient and acted in such a way, usually through simple negligence, that resulted in their untimely death.
- Drowning in a private or public pool. This frequently occurs when children are left unattended or if there is no lifeguard on duty to limit liability. If it is a city pool, the defendant would be a public entity. If it is a hotel pool, the defendant would be another private entity.
- Abuse and/or neglect. This occurs when some person, usually a caretaker, fails in their professional duties while caring for an elderly person or a child. If abuse caused the wrongful death, then they will be held in greater legal liability than simple neglect.
- Battery and/or assault. This is an example of intentional action on the part of the defendant that results in the decedent’s death. The defendant did not mean to kill the decedent, but they did act in such a manner that would likely result in bodily harm.
- Manslaughter and/or murder. This is the most serious form of wrongful death and is the result of when the defendant acted with such negligence, gross negligence, recklessness, or intentional action that they caused the death of someone else.
What is important to understand is that the level of damages rises proportionally with the level of culpability exhibited by the defendant. In other words, the more negligent, reckless, or intentional the defendant’s actions were, the more they are held responsible. If a drunk driver is not only intoxicated but also driving recklessly, they will be held doubly responsible for their misconduct.
What Does The Plaintiff Need to Prove in A Wrongful Death Lawsuit?
There are three primary factors that need to be proved by the plaintiff and their legal team in a wrongful death lawsuit:
- The decedent was owed what is legally known as duty of care by the defendant. Duty of care is the legally-enforced obligation that requires a defendant to reasonably try not to harm or injure others.
- The defendant violated this duty of care via negligence.
- The negligence of the defendant was the major factor in the causing the wrongful death (this is legally known as causation).
Consequently, nearly all wrongful death suits are built around the question of how the defendant’s negligence created the harmful conditions that then hurt or killed the decedent. However, the violation of the duty of care via negligence is the minimum that needs to be established. If the defendant acted in a more grossly dangerous manner, such as recklessness or willful behavior, then your attorney will seek to establish that behavior as causation and greater damages will potentially be awarded.
It is important to build a wrongful death case around the behavior and misconduct of the defendant. Your personal injury attorney will try to maximize the amount of responsibility of the defendant to ensure that you receive the most favorable amount of damages. Negligence is the most frequent cause, but it is important for your attorney to prove how the negligence created the harmful conditions.
The Difference between Ordinary Negligence and Gross Negligence
In order for your attorney to prove that negligence was the causative factor, they do not need to establish that the defendant acted with criminal intent. In most criminal cases, for example, the prosecutor has to establish this concept to ensure a conviction. However, in cases of negligence in civil court, your attorney needs only to prove that the defendant exhibited a pattern of behavior or a lack of caution in situations where they are reasonably expected to display these characteristics. This reasonable expectation is, as stated above, the duty of care.
Consequently, the legal definition of negligence under California civil statutes is when the defendant fails to behave in a reasonable manner that prevents the possibility of harm to the decedent. This is also referred to as ordinary negligence. Negligent misconduct may include both action and inaction. In other words, legal negligence is established if the defendant does something a reasonable person would not do or fails to do something that a reasonable person would do.
Gross negligence is a more serious form of negligence. It is, however, still milder than the legal definition of recklessness. Gross negligence is when the defendant does not exhibit any care whatsoever and acts in a way that is far outside the norms of reasonable behavior. This is a legal concept that is open to interpretation as all negligent behavior falls on a spectrum of some kind. Therefore, your attorney will need to build a convincing case based on the defendant’s behavior, reactions, and intentions to prove that gross negligence, as opposed to ordinary negligence, occurred.
Recklessness and Intentional Action
In terms of levels of liability in violating the duty of care legal requirement, the mildest is ordinary negligence, followed by gross negligence, then recklessness, and finally intentional actions. In order to prove higher levels of liability, your attorney will likely have to prove that the defendant exhibited patterns of behavior that were consistently risky and dangerous.
This may be achieved by conducting a private investigation, including the use of a private investigator, to establish the conditions and details of the defendant’s behavior or misconduct. If the cause of death of the decedent is unknown, then an independent autopsy and/or inquiry may need to be conducted to begin the possibility of claiming that it was a wrongful death. Furthermore, the use of expert witnesses and testimony are frequently necessary in order to prove that the duty of care was violated when the defendant caused the death of your loved one.
If your attorney intends to prove that the defendant behaved in a reckless manner, then they will have to prove that the defendant knew that the risk of harm was “highly probable”. Furthermore, they exhibited behavior or a lack of caution and foresight that was shortsighted and ultimately dangerous and had full awareness that they were disregarding the considerable risks of their behavior.
If the defendant caused the wrongful death due to intentional action, then your attorney will have to prove that they performed said action with the knowledge that it would result in the harm of someone else. It is probable that the defendant never actually thought that it would cause the decedent’s death. If they did act with that knowledge, grave criminal charges like involuntary manslaughter or manslaughter would be pressed by the district attorney. But in these cases, the civil proceedings run independent from the criminal trial and you may still be owed damages by the defendant.
Frequent Defense Strategies to a Wrongful Death Claim
Based on their experience and knowledge of personal injury and wrongful death cases, your attorney will have to build an entire case based on the misconduct of the defendant. However, due to the potential of high damages being awarded, it is likely that the defendant will also retain legal representation. As such, they will likely use one of the three following strategies to fight the case.
The defendant may argue that they did not owe the decedent any duty of care. The crux of this argument is that there was no actual legal obligation of the defendant to act any specific way towards the decedent to make sure that no harm came to them. Your attorney can argue that every person has a basic duty of care to not harm other people as well as a specific duty of care if their professions demand it. For example, clinicians, drivers, manufacturers, business owners, and property managers all have a duty of care to not act in a way that will likely cause harm to anyone using their products, receiving their services, or existing on their premises.
There is also the possibility that the defendant will invoke a defense known as comparative or contributory negligence. This essentially states that the decedent was responsible for their own death. Your attorney will have to conduct an investigation to prove that the defendant was responsible, including the strong possibility that there was a pattern of behavior, misconduct, and/or negligence that led to the harmful conditions. Furthermore, using a comparative negligence defense cuts both ways; doing so also invokes a state law known as the comparative fault law. This law states that even if a person is partially responsible for an accident, injury, or death, they (or their loved ones) may still be owed damages proportionate to how much blame the defendant was responsible for.
Finally, the defendant may argue that the decedent knew the risks of their behavior. This is legally known as assumption of risk. However, even in cases where the decedent was involved in behavior that is always risky or they signed a waiver form releasing liability, the defendant still has a duty of care. Furthermore, if the defendant misrepresented the risks or potential hazards, then damages would still be owed to the decedent’s family.
There are a variety of ways that you can recover damages for the death of a loved one. If someone is responsible for their death, be it an individual or a company, it is important to hold them accountable. No amount of money can replace that special person you lost, but it can help save your family from the potential loss of income and ease the pain and suffering of being bereaved. Let Los Angeles Personal Injury Attorney help you today. Contact our office at 424-231-2013 and start right away!