A wrongful death claim is different from a typical personal injury lawsuit because personal injury suits are brought by the victim; in a wrongful death case, the plaintiff is the decedent’s estate or heirs.
For a wrongful death claim to be valid, the circumstances must be such that the victim would have been able to file a personal injury suit. For example, say a construction worker was seriously injured after falling from unsturdy scaffolding. He suffered major physical injuries, lost out on a significant amount of wages, and was planning to bring a personal injury suit before dying of medical complications. The deceased worker’s wife and children would be able to bring a wrongful death lawsuit to collect damages.
A wrongful death claim is designed to compensate the surviving family members and estate for the losses incurred by the death. Damages available in a wrongful death suit include:
- Loss of financial support, which is based on how much the deceased would have reasonably contributed if the fatal accident had not occurred
- Loss of companionship, care, comfort, and guidance
- Loss of value of household services, including cleaning, childcare, and other chores
- Medical expenses, including ambulatory services, hospitalization costs, medication costs, surgical expenses, etc.
- Funeral and burial expenses
It is important to note that New Jersey law does not allow surviving family members to recover non-economic damages like pain and suffering or emotional distress. Families are also not permitted to recover punitive damages. However, if a surviving family member was present at the time of the death and suffered severe emotional distress as a result, the family member could file a claim for negligent infliction of emotional distress.
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A wrongful death claim often requires the testimony of many experts to fully demonstrate the plaintiffs’ losses, and it also requires the emotional investment of the decedent’s beneficiaries. The victim’s family must often tell a complete life story to fully communicate the care, guidance, supervision, companionship, and services that have been lost.
In New York and New Jersey, there is a two-year statute of limitations in wrongful death claims. If you fail to file suit within two years of the victim’s death, you and your family could lose out on compensation for wrongful death.
One alternative to a wrongful death claim is a survival action.
While a wrongful death claim deals with the pain and suffering of the surviving family members, a survival action deals with the pain and suffering of the victim in the time between the injury and death. Pursuing a survival action is the only way to recover damages for the victim’s pain and suffering that resulted from the accident. In a survival action, damages recovered go to the decedent’s estate, not directly to the family members. The damages from a survival action are then distributed according to the decedent’s will.