If your family member died from injuries caused by a negligent party, you may have the right to file a legal claim for a wrongful death. The details of the situation are important because not every incident that is caused by negligence results 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. Sometimes people can act negligently, but because they have no duty under the law, there is no ability to compensate the injured party. 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. Despite making several requests for the police to find her husband and the children, they took no steps to do so. 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.
This question is at the heart of many personal injury and wrongful death cases. A clear example of a breach of a duty is when a driver fails to stop at a red light and causes a collision with another car. There are statutes governing how we are required to act when driving, including stopping at red lights. If an accident is caused by someone intentionally disregarding traffic laws, then that person has acted in a negligent manner.
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. This scenario of determining how they performed is known as the “standard of care.” This is a much more subjective standard and subject to much more debate than someone who fails to drive their car consistent with traffic laws.
Last but not least, determine if the person who died was killed as a direct result of negligent behavior.
For example, say someone rides a horse on vacation and ends up breaking their neck after falling from the saddle. After medical consultation and treatment, including imaging of the spine, a doctor then says that it is okay for the patient to leave and 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.
Upon landing the patient is being driven to a hospital for care when his vehicle is struck by another driver. The patent’s spine shifts subtly but results in this person dying from their exacerbated broken neck. This is where it gets tricky to determine which party’s negligence caused the death.
As you can probably tell from what we have said so far, cases involving wrongful deaths can be very complex situations. The priority whenever a wrongful death occurs is to determine who acted negligently. 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. Most personal injury lawyers offer free consultations to discuss the details of your case. 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.
Washington law allows the following parties 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 also rules for wrongful death claims that involve the death of a child under age 18. Parents usually file a claim jointly if they are still married. 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. The purpose behind this is to make sure one parent doesn’t do something that the other parent does not know about.
If an activity or event can cause an injury then it has the potential to also cause death. Within all of our areas of practice, we take on wrongful death cases:
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The first thing you should do is contact a lawyer. Wrongful deaths are such an unplanned occurrence that not many people know how to proceed, and we don’t expect you to know the rules regarding insurance or how the legal system handles these situations. Interestingly enough, not every personal injury attorney knows how to handle wrongful death cases. Your case will be unique, no matter how commonplace a component of the case might be. A car crash in which your loved one was hit from behind is an example of a case that people would consider average given the common nature of the accident. While the general details of this type of personal injury incident sound very simple, the specifics of the case make the incident more unique. When you contact an attorney as soon as possible, you ensure that you are prepared to handle your case properly and abide by any statutes in place. 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. 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:
In the case of a wrongful death, Washington State has a statute of limitations of three years. The statute of limitations is a date by which you must either resolve or properly file and serve your lawsuit against the negligent party. If you do not abide by the statute of limitations for any case, you lose your rights to claim 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. Talk to an attorney as soon as you can to determine if you have a case. 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. 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 information, however, it’s hard for lawyers to form a case and file a claim on your behalf. Insurance companies will do everything in their power to throw out your case if you do not properly file and serve the lawsuit. The statute of limitations is three years, but we advise that you begin the process much earlier. This is especially true in matters of great importance like wrongful death claims. 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.
Above all, whoever you hire should be someone you can trust. Your case will either end in a settlement or a trial in court. Either way, you will depend to some degree on your attorney for advice. We tell all of our clients that it is our job to provide them with important information and risk analyses so that they can make a good decision about their case. We leave the big decision-making up to 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. The details of every case need to be carefully analyzed and reviewed to make sure that everything is taken into account. 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. At Wiener & Lambka, PS, for example, we are very proud that almost all former clients endorse us and many have taken the time to do so 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. The relationship between a client and their attorney includes a fiduciary duty on part of the attorney. A fiduciary duty means that the lawyer has to prioritize the client’s best interest even if they disagree. You should definitely seek out other attorneys if you feel that your attorney does not have utmost interest in your case or the outcome that results. 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. If you lawyer is neglecting your concerns and not answering your questions, you should consider seeking out different counsel because these behaviors will continue to occur throughout the duration of your case.
Most settlements are made as a compromise between the parties. Neither side receives exactly what they wanted from the situation when a settlement occurs. Settlements aim to please both sides while minimizing the losses and risks involved. The insurance company will typically only offer smaller amounts of money early on in negotiations. Insurance companies start small and work their way up in order to see if you’ll accept a smaller amount. Once they realize you are not going to settle for less than you deserve, they will try to offer you a lot upfront rather than risk owing you lump sums of money later. This is a subjective determination on some level regarding the evaluation of a case’s value. It can become very difficult to determine the appropriate compensation amount because cases are complicated and every incident is unique. In the end, both sides must try to accurately determine what is the amount that they would be willing to accept or pay in exchange for giving up the opportunity of getting more, or eliminate the opportunity of the other side doing better. The types of damage that can occur as a result of wrongful death cases include the following:
Some cases might take less time to resolve and conclude than others, the reason being that every case is so different. Wrongful death cases involve compensation in great amounts because the damage involves items of high value. The family of someone tragically killed suffers greatly for the unexplainable loss. The more devastating the loss, the more likely there will be disagreement with the party responsible for paying compensation for that loss. 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 take some time to unfold. In King County a lawsuit typically takes about a year and a half to reach a trial date. In other counties this time frame can be much longer.
For those looking to find someone to represent them in a wrongful death case, Wiener & Lambka, PS, offers a free consultation to discuss details. Your consultation with us can either take place over the phone or through emails. Either way, we are pleased to help you start your process. Not all cases require that an attorney get involved and we are honest about that from the beginning. 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. 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.
In Washington State, a cause of action can only be brought to court through the deceased person’s estate. Before anything else happens, the Estate must be created in 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. Suits filed by spouses and/or children can state ‘loss of companionship’ as a reason for filing. The state of Washington permits parents of children killed when younger than 18 years old to file a wrongful death claim. 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. 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. A claim that a deceased person held prior to their passing can be prosecuted under the statute for wrongful deaths in a manner that benefits the Estate. This would include pre-death pain and suffering as well as terror if the facts of the case support such a claim. 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. Anyone whose disabilities prevent them from getting married and having children are also unprotected by the laws in Washington State. 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. Lawmakers have tried fixing this gap in legislature but so far it has been to no avail.
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