If your loved one has died as a result of someone else’s failure to exercise reasonable care, then you may have legal rights to bring a claim for wrongful death. Not all situations where one person’s actions or inactions were negligent result in a legal claim.
In order to file a legal claim regarding wrongful death, ask yourself three questions.
First, did the person who caused the injury breach a legal duty to the person who died?
This means that the person had to have acted in a negligent manner, but in the context of having a legal duty. Negligent actions are common but they do not always constitute compensation. For example, the United States Supreme Court has held that you could not sue the police department if they failed to protect you even under circumstances that would reasonably be called negligent failure to act. In 2005, a woman filed for a protective order against her ex-husband. The ex-husband kidnapped their three children and she reported it to the police. Despite making several requests for the police to find her husband and the children, they took no steps to do so. After the ex-husband killed all three children, the mother sued the police department for their failure to take action and the Court deemed her to have no right to do so because a police department doesn’t have a duty under the law to protect citizens upon request and must be given discretion in their decision making along these lines.
Next, you must explore whether or not the person who is responsible for the damage acted in an unreasonable way to cause damage, meaning they breached their legal duty. This question is at the heart of many personal injury and wrongful death cases.
An example of a breach of duty is a driver who does not come to a stop at a red light and subsequently causes a car crash. Statutes govern how we are to act so that accidents do not occur. If somebody does not follow the rules and causes an incident as a result, their actions are considered negligent.
Negligence can be harder to define in some situations. In the healthcare industry, for example, you would need to look at the actions of, say, a doctor who supposedly acted with negligence and see how his actions compare to a doctor in the same line of work and circumstances. This is described as the “standard of care.” There are more variables when it comes to negligence with doctors than there are with drivers because the rules are the same for all drivers in every situation.
Number three on your list of questions is to figure out whether the negligent behavior was the direct cause of the deceased person’s death.
For example, say someone rides a horse on vacation and ends up breaking their neck after falling from the saddle. They schedule an appointment with a doctor who takes a spinal X-ray, and after viewing the results, tells the patient they are free to fly home. Assume also that this decision violates that standard of care because a reasonable doctor in that situation would not have allowed further travel due to the possibility of further harm resulting in death from the movements of travel. After the patient lands, he is being transported to the hospital for further medical care when another driver crashes into him. The patent’s spine shifts subtly but results in this person dying from their exacerbated broken neck. Negligence and responsibility for a wrongful death are hard to determine in situations like these.
As you can probably tell from what we have said so far, cases involving wrongful deaths can be very complex situations. The first step in any potential wrongful death case is to determine if the death was caused by someone else’s negligent behavior. This is the most basic question to answer and that alone shows just how difficult wrongful death cases can become. From this point forward, each case is unique and requires independent analysis from a competent attorney. Fortunately, the majority of attorneys in this field offer free consultations on such matters. The attorneys at Wiener & Lambka, PS, offer free consultations to anyone who believes they have a case and want to discuss details. If we ultimately determine that we are not the best law firm for your situation, we will refer you to someone who can help you.
In Washington State, the following individuals are allowed to file a wrongful death claim:
· the personal representative of the deceased person’s estate
· the spouse or state registered domestic partner of the deceased person, and
· the child, children, or stepchildren of the deceased person.
If someone is killed in a wrongful death incident and they have neither a spouse nor children, their direct family members have the right to file a claim on their behalf. There are certain rules that exist for the wrongful deaths of children 18 years old and younger. Parents usually file a claim jointly if they are still married. If the parents of a child who was killed are not married, then the parent who provided the majority of care is allowed to file a wrongful death claim, but the other parent cannot file jointly. If one parent files a wrongful death claim, he or she must serve the other parent with a copy of the complaint within twenty days of filing the case in a Washington state court. This serves to notify the other parent that the case is going forward and that he or she may join it if desired.
If an activity or event can cause an injury then it has the potential to also cause death. We have the skills to take on wrongful death cases in all areas of our legal practice:
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First and foremost, contact an attorney. There is no reason why you would be expected to suddenly understand all that needs to be learned about insurance, the legal system, and the medicine that is involved. Interestingly enough, not every personal injury attorney knows how to handle wrongful death cases. Even if you think your experience was generic, it is still important and it is still unique. For example, you might have a straight-forward automobile accident where someone struck your loved one from behind. While the general details of this type of personal injury incident sound very simple, the specifics of the case make the incident more unique. The earlier you contact an attorney, the earlier you can learn how to properly handle your case. Even if you learn nothing special, you will at least be re-assured then of how to do things the right way and not have regrets later. The details regarding how to proceed with your case depend on the type of law it deals with, but we have compiled basic advice for you based on the nature of your wrongful death claim:
Most wrongful death cases in Washington generally have a three-year statute of limitations. This means that you must file your lawsuit claiming compensation for a wrongful death within three years of the date of the incident. If you disregard a statute of limitations and try to file a claim outside of the timeframe, you are no longer legally eligible for compensation. Other statutes can apply to cases that might otherwise also be considered a wrongful death suit. You may think that your case is classifiable as a wrongful death but that might not be the case, like assault cases that end in death, and it’s important to know what your case really is because the statute of limitations could be different. If you think you have a case, reach out to an attorney as soon as possible. Before your statute of limitations runs out, you must file your legal suit for wrongful death otherwise you lose your legal rights. Lawsuits can become complicated and end up taking more time than originally planned. Aspects of your case, like figuring out who to sue, can become overwhelmingly difficult. Sometimes clients do not know to gather information at the scene of an incident so they have no contact information about the person who caused the car crash. However, without this information, it makes it hard to proceed. If you do not ensure that your case is properly filed and timely served, then insurance companies will try their hardest to have your claim discredited and dismissed. While the statute of limitations provides three years to act, we advise doing so much earlier. All cases should begin immediately after the incident happens, but we emphasize it more strongly with wrongful death cases. Do not look at the statute of limitations as a deadline but rather something to know about and keep in mind when filing a claim. The most important thing you can do when you have a personal injury matter on your hands is to immediately contact an attorney.
The most important trait of a lawyer is that they are someone you feel you can trust. Your case will either end in a settlement or a trial in court. No matter the outcome, you will heavily rely upon the person representing you. We advise all of our clients to seek advice and risk analyses from their lawyer because it is the attorney’s job to provide their client with important information. We do not make the big decisions on behalf of our clients. The client should be given the opportunity to make decisions for their own case, like whether the case is settled or goes to trial, how much to accept as compensation, and whether or not to go to trial. Most personal injury attorneys will talk with you for free about your case and provide advice on how to best proceed. Since each case is unique in its own rights, every single detail needs to be looked at with care. If you really want to win your case, make sure you search out legal advice as soon as you can. Many resources exist to help you find an attorney that will work best for your needs and your case in general. Not all of the ratings you will find are going to be accurate and honest but they can give you a general overview of the attorneys. Here at Wiener & Lambka, PS, we are happy to say that the majority of our former clients refer us to their family and friends. At Wiener & Lambka, PS, we are grateful that almost all of our former clients talk positively about our work and write supportive reviews of us online. You can find these reviews here:
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The best lawyers have experience, are committed to professionalism, prioritize advocacy for their clients, and have mastered interpersonal communication skills. The attorney-client relationship is one wherein the attorney has a fiduciary duty to his/her client. A fiduciary duty means that the lawyer has to prioritize the client’s best interest even if they disagree. If you notice that your attorney doesn’t seem to be invested in your case, then it is wise to hire someone else because your lawyer should have an incredible amount of interest in the details of your case. At the end of your case there will only be one settlement or award and you won’t ever get a chance to come back later for another bite at the apple. The way your attorney acts in the beginning of your case is a pretty clear indication of how they will be throughout the duration of your case, so if they are doing things like not responding to your questions or addressing your concerns in a timely manner, you should look for a different attorney to represent you.
Settlements are usually a compromise between the two parties. With settlements, neither side receives everything they sought to gain from the case. Settlements aim to please both sides while minimizing the losses and risks involved. When negotiations begin, the insurance company will start out with smaller offers for compensation. They want to see if the injured party will accept the smaller amount before becoming more reasonable. Once past this stage, insurance companies will often make offers that are designed to have a value to them that parts with money now in an effort to eliminate the possibility of paying more later. They determine the value of compensation by looking at the case in full. Value is often very hard to determine because each case is unique. It is good for each side to have an understanding of how little they are willing to settle for. Some examples of damage that can stem from a wrongful death case are…
Some cases might take less time to resolve and conclude than others, the reason being that every case is so different. Since the damage caused in wrongful death incidents usually involves items of high monetary value, compensation is usually a high dollar amount as well. The family of someone tragically killed suffers greatly for the unexplainable loss. It is more likely that the guilty party and his/her insurance provider will face more disagreements with the victim’s family if the death was extremely sudden and out of nowhere. Because the negligent party has such high monetary exposure, they have a corresponding incentive to fight to try to reduce that exposure. The more there is to fight over, the more likely that a lawsuit will be involved. Lawsuits are very slow processes. In King County, it takes an average of one year and six months for a case to just reach a trial date. In other counties this time frame can be much longer.
At Wiener & Lambka, PS, we are happy to provide a free consultation to potential clients. We can talk to you by phone or through email. No matter how we communicate, we are more than happy to discuss details and let you know if we think you would benefit from the assistance of a personal injury lawyer. If your case does not require legal assistance, we will reassure you about your situation and inform you of how to proceed. If we both agree that legal representation is something that will benefit you, then we will come to you to meet in person and talk in more detail so that you are fully informed about your case and what representation entails. You are more than welcome to meet us at our offices, but we offer to come to you as a way of lessening your stress following the loss of a loved one. We usually seek to meet at a mutually convenient place nearby your home or place of employment – whatever works for our clients also works for us.
Below is an in-depth analysis of wrongful deaths that occur in Washington State:
4.20.005 Wrongful death—Application of terms. Words in RCW 4.20.010, 4.20.020, and 4.20.030 denoting the singular shall be understood as belonging to a plurality of persons or things.
The masculine shall apply also to the feminine, and the word person shall also apply to bodies politic and corporate. [ 1917 c 123 § 3; RRS § 183-2. Formerly RCW 4.20.010, part.]
4.20.010 Wrongful death—Right of action. When the death of a person is caused by the wrongful act, neglect, or default of another his or her personal representative may maintain an action for damages against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony. [ 2011 c 336 § 89; 1917 c 123 § 1; RRS § 183. FORMER PARTS OF SECTION: 1917 c 123 § 3 now codified as RCW 4.20.005. Prior: 1909 c 129 § 1; Code 1881 § 8; 1875 p 4 § 4;1854 p 220 § 496.]
4.20.020 Wrongful death—Beneficiaries of action. Every such action shall be for the benefit of the wife, husband, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused. If there be no wife, husband, state registered domestic partner, or such child or children, such action may be maintained for the benefit of the parents, sisters, or brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his or her death. In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just. [ 2011 c 336 § 90; 2007 c 156 § 29; 1985 c 139 § 1; 1973 1st ex.s. c 154 § 2; 1917 c 123 § 2; RRS § 183-1.] NOTES: Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030.
4.20.030 Workers’ compensation act not affected. RCW 4.20.005, 4.20.010, and 4.20.020 shall not repeal or supersede chapter 74 of the Laws of 1911 [Title 51 RCW] and acts amendatory thereof, or any part thereof. [ 1917 c 123 § 5; RRS § 183-3.]
4.20.046 Survival of actions. (1) All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter, whether such actions arise on contract or otherwise, and whether or not such actions would have survived at the common law or prior to the date of enactment of this section: PROVIDED, HOWEVER, That the personal representative shall only be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased on behalf of those beneficiaries enumerated in RCW 4.20.020, and such damages are recoverable regardless of whether or not the death was occasioned by the injury that is the basis for the action. The liability of property of spouses or domestic partners held by them as community property to execution in satisfaction of a claim enforceable against such property so held shall not be affected by the death of either or both spouses or either or both domestic partners; and a cause of action shall remain an asset as though both claiming spouses or both claiming domestic partners continued to live despite the death of either or both claiming spouses or both claiming domestic partners. (2) Where death or an injury to person or property, resulting from a wrongful act, neglect or default, occurs simultaneously with or after the death of a person who would have been liable therefor if his or her death had not occurred simultaneously with such death or injury or had not intervened between the wrongful act, neglect or default and the resulting death or injury, an action to recover damages for such death or injury may be maintained against the personal representative of such person. [ 2008 c 6 § 409; 1993 c 44 § 1; 1961 c 137 § 1.] NOTES: Part headings not law—Severability—2008 c 6: See RCW 26.60.900 and 26.60.901.
4.20.050 Action not abated by death or disability if it survives—Substitution. No action shall abate by the death, marriage, or other disability of the party, or by the transfer of any interest therein, if the cause of action survives or continues; but the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his or her representatives or successors in interest. [ 2011 c 336 § 91; Code 1881 § 17; 1877 p 6 § 17; 1869 p 6 § 17; 1854 p 132 § 11; RRS § 193.] NOTES: Rules of court: Cf. RAP 3.2, 18.22. 4.20.060 Action for personal injury survives to surviving spouse, state registered domestic partner, child, stepchildren, or heirs. No action for a personal injury to any person occasioning death shall abate, nor shall such right of action determine, by reason of such death, if such person has a surviving spouse, state registered domestic partner, or child living, including stepchildren, or leaving no surviving spouse, state registered domestic partner, or such children, if there is dependent upon the deceased for support and resident within the United States at the time of decedent’s death, parents, sisters, or brothers; but such action may be prosecuted, or commenced and prosecuted, by the executor or administrator of the deceased, in favor of such surviving spouse or state registered domestic partner, or in favor of the surviving spouse or state registered domestic partner and such children, or if no surviving spouse or state registered domestic partner, in favor of such child or children, or if no surviving spouse, state registered domestic partner, or such child or children, then in favor of the decedent’s parents, sisters, or brothers who may be dependent upon such person for support, and resident in the United States at the time of decedent’s death. [ 2007 c 156 § 30; 1985 c 139 § 2; 1973 1st ex.s. c 154 § 3; 1927 c 156 § 1; 1909 c 144 § 1; Code 1881 § 18; 1854 p 220 § 495; RRS § 194.] NOTES: Severability—1973 1st ex.s. c 154: See note following RCW 2.12.030.
The Washington wrongful death law allows for the creation of a cause of action that can be brought only through the estate of the deceased. Accordingly, the first thing that needs to be done is create the Estate in the Probate Court. This includes the selection and appointment of a person to be the Personal Representative of the Estate. The person selected for this position will make moves on behalf of the Estate, such as filing a claim for wrongful death. This statute only permits spouses and children to file a wrongful death claim for their deceased partner or parent. Lawsuits filed by family members are eligible for including loss of companionship in their case. Washington State law allows legal claims to be made by parents when their children are killed before they reach the age of 18, too. When a child turns 18, they are legally responsible for their rights and the parents lose a large percentage of their rights when it comes to filing. The only claim that can be brought at that point is a claim for loss of economic support and must be based upon a showing that the child was economically supporting the parent prior to his or her death. Any claim that the deceased had prior to their death survives their death and can be prosecuted accordingly under the wrongful death statute for the benefit of the Estate. Pre-death pain, suffering, trauma, and terror are all included as valid claims. If a person passes away wrongfully, but they do not have children or a spouse, then a wrongful death claim cannot be filed in their name under Washington State law. Under these circumstances, there are no beneficiaries listed in the statute to bring the claim. The parents have no right to bring a cause of action for the death of an adult child and, if the adult child is not married nor are there children by the adult child, then there is not a cause of action for their death. People who are young adults and in their pre-marriage stages in life are not covered by Washington law if they were to pass away in a wrongful death incident. Developmentally-delayed people who are of adult age are also unprotected under Washington State law. If the parents of children do not live in the United States, they cannot legally file a wrongful death claim on behalf of their child either. Many attempts have been made to fix this gap in the law without success.
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