Legal rights can be claimed for a wrongful death if your family member died as a result of negligent actions. 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.
The first question to answer is if the guilty party had a legal duty to uphold.
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. The US Supreme Court, for example, ruled that you cannot sue the police if they don’t protect you just because you asked them to help you.
In 2005, a woman filed for a protective order against her ex-husband. When her ex-husband kidnapped their three children, she filed a police report. Even though she repeatedly asked that the police look for her children, they did not open a case. The ex-husband killed the three children at which point the mother filed a suit against the police for not intervening but the Supreme Court informed her that suing the police was not an option for her because the police do not have to protect citizens upon request.
The next question you must answer is whether or not the person who caused harm did so in an unreasonable way and ended up breaching their legal duty.
The answer to this question is important in all wrongful death and personal injury cases. A very clear-cut example of a breach of duty is when drivers do not stop at red lights and end up causing accidents as a result of their choice to break the law. There are statutes governing how we are required to act when driving, including stopping at red lights. If somebody does not follow the rules and causes an incident as a result, their actions are considered negligent.
Negligence is a more difficult question in other contexts. In order to declare someone, like a doctor, as acting negligently in the healthcare industry, you would need to compare the actions of the doctor in question to one of his equals faced with the same situation. The term for this is “standard of care.” This standard is more subjective and requires more analysis than someone who simply disregards traffic laws.
Last but not least, determine if the person who died was killed as a direct result of negligent behavior.
For example, assume that someone falls from a horse while on vacation and breaks their neck. After consulting with a doctor and having an X-ray done of their spine, the patient is cleared to board an airplane and fly back home. The doctor’s assertion that the patient can fly home is in violation of the standard of care because further harm can be caused by flying too soon after an injury.
After the patient lands, he is being transported to the hospital for further medical care when another driver crashes into him. The patient only sustains minor trauma from the car crash, but due to his pre-existing injuries, the impact was enough to exacerbate his spinal injuries and he died from the additional damage to his neck. Negligence and responsibility for a wrongful death are hard to determine in situations like these.
To state the obvious, wrongful deaths make for very complicated legal cases. The first step in any potential wrongful death case is to determine if the death was caused by someone else’s negligent behavior. While this can be complicated, this is the basic question that all such cases start with. From this point forward, each case is unique and requires independent analysis from a competent attorney. Thankfully, most personal injury lawyers offer free consultations. The attorneys at Wiener & Lambka, PS, offer free consultations to anyone who believes they have a case and want to discuss details. If it turns out that we are not able to help you with your case, we will direct you to someone who can.
The following categories of people are those allowed to file a wrongful death claim in the state of Washington:
· 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 the deceased person had no spouse, state registered domestic partner, children, or stepchildren, the deceased person’s parents, sisters, or brothers may file a wrongful death claim. There are certain rules that exist for the wrongful deaths of children 18 years old and younger. If the parents are still married, they usually file a claim jointly rather than individually. In cases of divorce or where the parents were never married, only a parent who “regularly continued” to support the child may file or join a wrongful death claim. The parent who files a wrongful death claim must notify the other parent within twenty days of the file date, as well as provide them with a copy of the legal document. This serves to notify the other parent that the case is going forward and that he or she may join it if desired.
If something can cause injury, it is also capable of causing death. We accept wrongful death cases in all of our practice areas:
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The first thing you should do is contact a lawyer. Not many people have an understanding of how to proceed after a wrongful death occurs, so that’s why a lawyer is your best bet when it comes to learning about the legal system and its protocols for these types of situations. In fact, many personal injury attorneys don’t fully understand each of these areas of law. Your case will be unique, no matter how commonplace a component of the case might be. An example of a case people think is a basic personal injury incident is a car crash where someone hit you or your loved one from behind. While this part of the case may well be simple, there are always, in every case, unique facts that need to be analyzed and handled properly. The earlier you contact an attorney, the earlier you can learn how to properly handle your case. Even if the attorney does not introduce new information to you, their presence and assistance can reassure you, at the very least, that you are acting in your best interests. We have compiled basic advice regarding wrongful death claims based on the area of law in question:
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 do not abide by the statute of limitations for any case, you lose your rights to claim compensation. Before assuming that your situation involves a wrongful death claim, look into the exact nature of the case because sometimes it is considered something else and the statute of limitations might differ. Assault, for example, has a two-year statute of limitations. If you think you have a case, reach out to an attorney as soon as possible. Since statutes of limitations can sever your rights for compensation, you must file your suit and complete the process prior to the deadline of your statute. Lawsuits can become complicated and end up taking more time than originally planned. Even the most basic of tasks, like determining who it is that you need to sue, can become complex. In our many years of practice, we’ve even run into clients who come to us with a case but have no information about the person who caused them harm. Without basic facts, it is impossible to preserve your legal rights. Insurance companies will do everything in their power to throw out your case if you do not properly file and serve the lawsuit. While the statute of limitations provides three years to act, we advise doing so much earlier. This is especially true in matters of great importance like wrongful death claims. Moreover, this should not be considered a deadline as much as it is something to be aware of. The most important thing you can do when you have a personal injury matter on your hands is to immediately contact an attorney.
Above all, whoever you hire should be someone you can trust. At the end of your case you will either settle the matter or go to court and have a jury or judge give an award. Whether you settle or go to court, your attorney will be someone you rely on heavily. 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 big decisions for our clients. Questions like whether or not to sue the other party, how much to accept as compensation, and whether or not they take the other party to trial are for the client to answer. 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. The more important your case is to you, the more important it is that you promptly find legal advice on how to best handle it. Many resources exist to help you find an attorney that will work best for your needs and your case in general. While not all ratings are equal, looking at all of the different pieces of information is still valuable. 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. Our reviews can be found here:
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While trying to find a lawyer that you can be confident with, look for someone with experience, professionalism, advocacy, and interpersonal communication skills. Within the professional relationship, an attorney has a fiduciary duty to his/her client. This means that the attorney must put the client’s interest above their own. If you have an attorney who doesn’t promptly respond to your communications or acts with indifference to your case, you should probably find someone with whom you can work better. Once a decision is made regarding your case, it cannot be revisited so you’ll want to ensure that the outcome is something you are happy with before you agree to it. 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.
Most settlements are made as a compromise between the parties. This means that seldom does either side get exactly what they want when settling their case. Settlements, on both sides, are a product of risk reduction. The insurance company will typically only offer smaller amounts of money early on in negotiations. They want to see if the injured party will accept the smaller amount before becoming more reasonable. Once the insurance companies understand you will not settle for less compensation money than you feel you deserve, they will try to offer you a lot of money upfront to avoid paying more later on. They determine the value of compensation by looking at the case in full. Since each case is very unique, it can be hard to determine the proper value of compensation. It is good for each side to have an understanding of how little they are willing to settle for. Potential forms of damages in a wrongful death case include:
Every case is unique and some will resolve more quickly than others. In wrongful death cases, the damages being sought are often of great monetary value. The loss of a life and its effects upon that person’s immediate family can be devastating. 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 not fast-moving entities. In King County a lawsuit typically takes about a year and a half to reach a trial date. Not all counties are this quick either.
The lawyers of Wiener & Lambka, PS, offer free consultations to people in search of legal assistance. We can talk to you by phone or through email. Either way, we are pleased to help you start your process. If your case does not require legal assistance, we will reassure you about your situation and inform you of how to proceed. If we feel that we can serve you well and that our law firm is suitable for your case’s needs, we are more than willing to travel to your location to discuss more details. If you want to come to our offices, you are more than welcome to – but we know that wrongful death cases really take a toll on families and we just want to ease your distress as much as we possibly can. We’ll usually just recommend that we meet somewhere local for you and convenient for everyone, like a neighborhood coffee shop, to go over the case in further details.
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 creation of a cause of action in Washington State can only be brought by way of the deceased person’s estate, according to the law. 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. From there, the person elected as Representative will go ahead and file a claim of wrongful death on behalf of the Estate. 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 law allows also for a legal claim to be made by the parents when a child under the age of 18 is wrongfully killed. Parents lose a handful of rights to claim compensation for the wrongful death of their child when said child turns 18 years old. Once a child is 18, a parent can only file a wrongful death claim under the guise of ‘economic support’ and even then, a lot of evidence is needed to prove this claim. 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. Washington’s law is somewhat controversial in that it does not leave a cause of action for the death of an adult child who has not married nor has children. Under these circumstances, there are no beneficiaries listed in the statute to bring the claim. Parents cannot bring a case of action for adult children, so if they didn’t have a partner or any surviving children, then there isn’t a case. For this reason, most people are not covered under Washington State law for wrongful death. This would include all developmentally disabled children over the age of 18 whose disabilities prevent them from leading lives involving marriage and having children. Non-US residents cannot file wrongful death claims for their children either. Many attempts have been made to fix this gap in the law without success.
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