Wrongful Death Accident Information

Presented by Wrongful Death Attorney E. Michael Grossman

Wrongful death lawsuits are one of the most misunderstood areas of the civil justice system. While everyone thinks they know how wrongful death lawsuits work, very few can truthfully say that they have an adequate understanding that can be of use to wrongful death claimants. One such knowledgeable person is Texas wrongful death attorney Michael Grossman. With 20 years of experience litigating hundreds of wrongful death cases in numerous states, from his principal office in Dallas TX, attorney Michael Grossman has provided the following information to explain how wrongful death cases work. Call us toll-free at 1-855-589-5645.

When is a Death a "Wrongful Death?"

Regardless of the specific scenario by which the harm was inflicted, each state will generally allow the surviving family members of the person who was wrongfully killed to bring a claim against the entity that caused the harm. A death is considered to be a "wrongful death" when the loss of life is the result of another entity's non justifiable actions or inaction.

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Every person and business owes everyone else around them certain legal duties. When you drive on public roads, you, by default, owe a legal duty to other drivers to not harm them by driving carelessly. When you go to work, your employer owes you a legal duty to keep you free from harm. When you undergo surgery, the doctor and his staff all owe you a legal duty to provide a reasonable degree of care. Again, virtually everyone owes everyone else some type of legal duty. Which legal duty you owe to someone or which duty they owe to you is entirely dependent upon context and the nature of the relationship the parties have to one another. For instance, a doctor owes you additional legal duties that a truck driver may not owe you, but they both owe you the legal duty to not harm you with careless driving.

When one party breaches the duty that they owe to another party, a cause of action is created, meaning that the person who had their right to be free from harm violated will now have a valid reason to hold the person that breached the duty accountable in a court of law. This is very similar to a breach of contract, only the duty that one party owes to another is generally an implied duty (for instance, no one signs a contract that says they won't crash their car and hurt another person, but it is implied that you acknowledge such an agreement whenever you get behind the wheel of a car).

As it relates to wrongful death cases, the family of the decedent will generally have two causes of action against the defendant that inflicted the harm, a survival cause of action and a wrongful death cause of action.

1. Survival Cause of Action - Since the person whose rights were infringed upon is killed, their family members will generally inherit the decedent's cause of action (think of this as the decedent's personal injury cause of action being passed on to their next of kin since the decedent's death keeps them from bringing their own claim). This means that the family, through a survival cause of action, will be able to bring a personal injury claim on behalf of the decedent.
2. Wrongful Death Cause of Action - Additionally, the person who breaches their duty to the decedent by harming them is also breaching their duty to the decedent's family by unfairly inflicting emotionally distress upon them. Losing a loved one in an accident is one of the most emotionally damaging events that can happen to a person. Therefore, a wrongful death claim generally consists of the family of the decedent pursuing the person who breached these duties both on behalf of the decedent and on behalf of the family themselves. Think of a wrongful death claim as having two causes of action rolled into one.

Why Sue for Money?

The whole idea behind any civil claim is to make the victim (known as the plaintiff) whole once again. In a breach of contract case, the plaintiff may have lost actual money as a result of the breach, and it is therefore easy for the plaintiff to justify seeking money as a means being reimbursed for their losses, thereby making them whole once again.

As it relates to a wrongful death lawsuit, no amount of money can ever actually truly make the victim whole again. Money is simply a universal medium that affects all possible defendants equally, or at least more equally than any other means, though other means have been used historically.

For instance, in Biblical times causing a wrongful death was punishable by death or dismemberment. But in the modern world how would you kill a company that wrongfully killed someone else? Would you kill or dismember everyone that worked for the company? Just the CEOs? Just the hourly laborer that actually committed the act at the bottom of the corporate ladder? What if they were simply following instructions given by their superiors? Obviously, such archaic means of compensation are contrary to what we deem appropriate in modern society, but moreover, they are simply impractical. It would not be fair or just to kill and individual who causes a wrongful death but only seek monetary punishment against a company. In the interest of impartiality, money is the only universal medium that affects all members of society; having less is universally bad and having more universally better. The whole idea behind suing for money is that the courts want to dis-incentivize carelessness. When companies and individuals know that they are held financially accountable for their actions, they will change their ways, and that is the whole idea. Sometimes accident do happen, but the overwhelming majority of wrongful death cases are not the result of a random fluke, rather, they are the result of blatant carelessness or worse.

Additionally, punitive damages are sometimes levied against a company or individual for egregious acts that result in loss of life. In other words, sometimes the defendant can act so carelessly that a jury will force them to pay extra money as a form of punishment. The first step toward holding a defendant financially responsible is filing a claim against them which will often then evolve into a wrongful death lawsuit.

What is a Wrongful Death Lawsuit?

Contrary to what you hear about on the news and see in TV shows, a lawsuit is little more than a letter of intent that is recognized by the court. In any type of lawsuit, the claimant will state the defendant's alleged wrongdoings and they will generally specify an outcome that is considered an acceptable means of resolving the lawsuit. Once a lawsuit is filed, the case is officially in the court system and there are bevy of rules and procedures that must be strictly adhered to. Lawsuits should never be attempted by those unfamiliar with court procedures and other elements that are hard learned in the practice of law. Additionally, it should be pointed out that a responsible and ethical lawyer should never file a lawsuit blindly. That is to say, filing a lawsuit should not be a means of getting the lawyer's name in the newspaper, and it is generally a bad idea to file a lawsuit as soon as the lawyer is hired. It is best to try to resolve any dispute on the administrative level whereby the attorney will negotiate on behalf of the family outside of the court system. Most claims are resolved this way and will save money for both the client and the taxpayers. Additionally, smart lawyers will use lawsuits strategically so that if communications break down and negotiations fail during their attempts to resolve the case out of the court, they have additional leverage over the defendant. The lawyers that file lawsuits too soon and for the wrong reasons will harm their client's case by prematurely using one of the most powerful tools in their arsenal.

Damages in a Wrongful Death Case

In the state of Texas, there are two forms of damages (damages are the money in a wrongful death case) that may be pursued by surviving family members – wrongful death damages, which can be sought by spouses, children, and parents, and survival damages, which can be sought only by the closest living relative of the decadent, with that right passing down from spouse, to child, to parent, and finally to sibling in some extreme cases.

When a settlement is reached or a jury verdict obtained, a lump sum of money is paid by the defendant. However, the amount that is demanded by the plaintiff to settle the case, and/or the amount that is awarded by a jury, is not an arbitrary figure. Rather, The damage are calculated based on individual damages that are either fixed in value (what we call special damages) or subjective in value (what we call general damages).

Wrongful death damages can include:

• Funeral expenses.
• Loss of the economic support supplied by the victim before he or she died.
• Emotional and mental trauma caused by the loved one’s death.
• Loss of the familial love and consortium only the deceased could supply.

Survival damages, on the contrary, are designed to permit the victim’s closest living relative the right to seek the lawsuit the victim would have been able to file had he or she merely been wounded in the accident and not killed. Survival damages make the closest living relative the victim’s proxy in the quest to seek compensation for:

• Medical bills incurred by the victim before he or she died.
• Property damage.
• The victim’s physical pain and suffering caused by the accident.

In the state of Arkansas (as well as many other states), before dealing with a wrongful death action, the family of the deceased must appoint a personal representative of the estate before moving forward with a wrongful death lawsuit. The personal representative, or executor, of the estate then files one comprehensive lawsuit for the entire family, dividing up the proceeds after the fact. While this alteration in the law makes processing wrongful death claims much easier on the state of Arkansas, it makes the family much more in need of a skilled wrongful death attorney. Only someone with experience handling these types of cases can cope with juggling the claims for all members of the family.

Other than the personal representative requirement, the types of pursuable damages in wrongful death lawsuits are virtually identical in both Texas and Arkansas. However, surviving family members in both states need to make note that there are certain wrongful death situations that limit the amount of recoverable compensation and can have higher standards of proof. Workers’ compensation laws greatly limit the amount of recoverable restitution from employers who bought workers’ compensation insurance, and medical malpractice laws both shield insured doctors from paying the true value of the damage they caused and raise the burden of proof.

Limits on Liability and Special Causes of Action

We live in a time where the media and public perception as a whole cast lawsuits in a negative light. Insurance companies and other industries are lobbying politicians to provide them with increasing protection from lawsuits. In some instances this is warranted, but in most instances the lobbying results in changes to the law that are unfairly skewed in favor of those who inflict harm. These revisions to the laws often limit the ability of family members to obtain the justice that they would otherwise be entitled to. For instance:

• Medical Malpractice Wrongful Death Cases
  

  Though Texas residents have received the worst of this, many states now feature revisions to their medical malpractice laws which severely limit the liability of physicians. For example, in Texas, the laws concerning a wrongful death claim that is based on a medical malpractice cause of action impose upon claimants certain filing requirements and court costs that are not imposed upon them in other cases. Additionally, irrespective of the egregious nature of a physician's actions, the damages that can be awarded in medical malpractice cases are capped at $250k in non economic damages. This essentially means that no matter how negligent a doctor may be, they will not likely ever have to compensate a family for more than $250k for their wrongful death damages claim. Again, other states have limits and other impositions, but Texas is certainly the least plaintiff-friendly state in regard to medical malpractice wrongful death cases.

• On-The-Job Injury Wrongful Death Cases and Workers' Compensation
  

  Workers' compensation plans are not just insurance policies. When a company joins a workers' comp plan they are buying into a system whereby they are afforded protection from lawsuits. In most states, workers' comp participation is required, but in states like Texas, workers' comp is voluntary and not every company subscribes. If the company subscribes to workers' comp insurance, the family of the deceased will generally be barred from a law suit, except in certain situations that are somewhat rare.

  In cases where a contractor is injured or killed, no cause of action may exist at all. Again using Texas as our example, in the Lone Star State contractors are owed no legal duty by a parent organization to keep the contractor free from harm when performing tasks that the contractor must themselves assume safety risks. So, quite literally, the family of a contractor may have no opportunity at all to pursue a wrongful death case against an parent company or other entity who hires a contractor. This prompts many employers to basically lie and say that every employee is a "contractor" in order to avoid liability.

• Dram Shop Cause of Action
  

  In some types of cases there are no limits to liability in terms of damages caps but there are special requirements for establishing liability in the first place. For instance, many states allow for wrongful death cases based on a dram shop cause of action. A dram shop cause of action is essentially a claim against a bar or restaurant for injuries or death that are the result of the negligent service of alcohol. In other words, if a bar serves a person more alcohol than it is legally allowed to serve and then that intoxicated person hurts someone, the bar may be held liable. In cases like this, the dram shop cause of action is the only cause of action that may be pursued. So even if the claimants can prove that the bar was negligent in their hiring practices, or if you can show that the bar was negligent in the training of their employees, that does not establish the dram shop cause of action. In order to establish a dram shop cause of action, you must show that the bar served an obviously intoxicated patron. The significance of the dram shop cause of action is that it creates a hurdle that the plaintiffs must clear in order to bring a claim at all.

  Naturally, there are other types of causes of action that impose limitations in some form or another. All cases require that the plaintiff bears the burden for proving that their case is valid.

Negligence - A Necessary Element of a Wrongful Death Cause of Action

As mentioned previously, the family of the decedent can bring a claim against a defendant provided they have a valid cause of action against the defendant. A valid wrongful death cause of action is established by showing that the defendant was negligent. But what exactly makes someone negligent? Negligence is established with three elements:

• Duty. The defendant must have owed the decedent a legal duty.
• Breach. The defendant must have breached the legal duty that they owed to the decedent.
• Causation. The breach of the legal duty must be the proximate cause of the decedent's injuries.

If these three elements can be proven, then negligence is shown on behalf of the defendant and the plaintiff's family will have a valid cause of action against the defendant. For example, if Bob suffers a broken leg when a drunken driver crashes into his car and later that day he dies during a routine surgical procedure to repair his broken leg, would the family have a valid cause of action against the drunken driver? It depends. If Bob was in poor health and nothing went wrong during the surgery, he was simply not well enough, and he died not from medical negligence, then yes, Bob's family would have a valid cause of action against the drunken driver. However, if all the drunken driver was responsible for was breaking Bob's leg and Bob's death was attributable to a surgical error then the cause of action would exist against the doctor and not the drunken driver.

Most scenarios are more transparent, but the above exercise clearly illustrates that establishing a valid cause of action is trickier than it may seem at first glance.

Criminal Charges

In most accidental deaths, criminal charges will not likely be filed. The reason for this is that, unless the defendant has committed an act of extreme carelessness such as drunken driving, carelessness is not usually considered a criminal offense. Again, extreme carelessness may constitute a criminal level of carelessness, but most forms of carelessness are simply considered to be negligence, and the only remedy available to the family is to bring a claim against the defendant in civil court.

However, when someone does commit an act of criminal negligence and criminal charges are brought against them, the family of the deceased may also bring a civil claim against the defendant as well. This also applies to cases where intentional harm is brought against decedent as in a murder.

Wrongful Death Attorneys at Grossman Law Offices

The attorneys at Grossman Law Offices realize that a wrongful death claim can be confusing and difficult to ponder following the death of a loved one. As a result, our attorneys are trained in advising a potential client with the proper advice needed to decide on their next move. If you or someone you know have lost a loved one and would like to speak to an experienced wrongful death attorney, call us toll-free at 1-855-589-5645 or email us using the form near to top of the page.