Who Can File a Wrongful Death Lawsuit?

If a person is fatally injured due to someone else’s negligence, there could be grounds for a wrongful death lawsuit. Whether the at-fault party was a car manufacturer, construction company, surgeon, drunk driver, or corporation, wrongful death lawsuits allow the victim’s family to recover damages after the loss.

While personal injury lawsuits are filed to get compensation for the victim, wrongful death lawsuits are filed to get compensation for the decedent’s close family and heirs. A wrongful death claim is generally filed by the executor or personal representative of the victim’s estate, but all damages recovered are distributed to qualifying family members.

Those who can recover damages for wrongful death in New Jersey include:

  • Surviving spouse
  • Children
  • Grandchildren
  • Surviving parents
  • Siblings, nieces, or nephews
  • Anyone who can prove “actual dependence” on the decedent

The victim’s children and spouse come first when it comes to awarding damages in a wrongful death claim. Surviving parents, siblings, nieces, and nephews are typically only compensated the victim had no surviving children or spouse. However, surviving family members outside of the victim’s immediate family must be able to prove they were dependent on the deceased in order to recover damages.

Who can collect from a wrongful death claim is different for every family. In certain cases, non-immediate family members could be first in line for compensation; for example, if a woman was raising her grandson and the boy was killed in a car accident, the grandmother could seek damages in a wrongful death suit.

Recoverable damages

There are a number of other types of damages family members can recover in a wrongful death lawsuit, including:

  • Lost earnings of the deceased (and lost future earnings)
  • Lost guidance, care, support, and advice
  • Funeral expenses
  • Lost companionship

New Jersey law does not allow surviving family members to make a claim for pain and suffering, grief, mental anguish, or other emotional pain caused by the victim’s death (unless the family member was an eyewitness to the accident). However, in some cases, family members can file a claim for negligent infliction of emotional distress.

A general rule of thumb is that, for there to be grounds for a wrongful death claim, there must have been grounds for a personal injury suit at the time of the victim’s death. In other words, while the recipients of the damages change in a wrongful death case, the standards for an actionable claim do not. In a wrongful death claim, you are still required to prove:

  • Duty of care: the plaintiff must prove that the defendant owed the deceased a certain duty of care
  • Breach of duty: the plaintiff must prove that the defendant did not uphold the duty of care
  • Causation: the plaintiff must prove that the victim’s death was a direct result of the breach of duty

It is important to note that families can pursue a wrongful death claim in addition to any criminal charges leveled against the defendant. For example, say a drunk driver crossed over the median and caused a fatal car accident. The police can arrest the drunk driver for vehicular manslaughter (or another related charge), which does nothing to compensate the dependents for the loss of their family member. Wrongful death cases are often accompanied by both criminal charges and a civil lawsuit.

 

2014-09-20T04:07:00+00:00