Legal rights can be claimed for a wrongful death if your family member died as a result of negligent actions. However, negligence does not always guarantee a legal claim.
Ask yourself these three questions when looking to file a legal claim for wrongful death.
The first question to answer is if the guilty party had a legal duty to uphold.
To answer this question, figure out if the perpetrator acted negligently while expected to uphold a legal duty of some sort, like a police officer for example. Negligent actions are common but they do not always constitute compensation. An example that may surprise you is that you cannot sue the police for not protecting you, according to a United States Supreme Court ruling.
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 father ultimately killed the three children, prompting the mother to sue the police department for failing to take action and find the children, but the Supreme Court turned down her suit because the police do not have to protect citizens upon request.
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. The purpose of statutes is to govern how we must act while driving and stopping at red lights is one of those laws. 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. The term for this is “standard of care.” This standard is more subjective and requires more analysis than someone who simply disregards traffic laws.
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. 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.
He lands at the airport near his home and gets in a car heading to the hospital where he’ll receive further medical care, but along the way, another vehicle crashes into the one transporting him. As a result of the crash, the man’s spine is only slightly impacted, but the additional trauma, no matter how small, ends up breaking his neck completely and causing his death. 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. Fortunately, the majority of attorneys in this field offer free consultations on such matters. If you feel that you have a case concerning a wrongful death, the personal injury lawyers at Wiener & Lambka, PS, will meet with you during a free consultation to discuss the specifics of your situation. 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 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. The reason for notifying the other parent is that they deserve to know what is happening with their child’s case and it gives them the opportunity to partake in the suit if they want to be involved.
If an activity or event can cause an injury then it has the potential to also cause death. We accept wrongful death cases in all of our practice areas:
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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. In fact, many personal injury attorneys don’t fully understand each of these areas of law. No matter what happened in the actual incident, your case is unique to you and your family. For example, you might have a straight-forward automobile accident where someone struck your loved one from behind. The general overview of a car accident from behind sounds very simple but there are always specific details that set it apart from other crashes from behind. 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 Washington State, the statute of limitations is usually three years for wrongful death cases. A statute of limitations dictates the parameters of a valid claim and it lets you know how long you have to properly file your claim before it is no longer eligible for compensation. Failure to do so will result in the loss of your legal rights to 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. Because the statute of limitations is a statute that can cut off your legal rights, it is important to take action far before the deadline. 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. 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. 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. 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. The statute of limitations is not a deadline but rather a cautionary timeframe letting you know how much time you have before your rights for compensation expire. 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 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. 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. Personal injury attorneys tend to offer free consultations to discuss the details of your case and they will either accept your case or point you in the right direction. The details of every case need to be carefully analyzed and reviewed to make sure that everything is taken into account. The more you care about the outcome of your case, the more important it is that you find legal advice to assist your case. 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. You can find these reviews 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 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. 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 your attorney isn’t clearly doing a good job and isn’t responsive to your questions and concerns, you should consider seeking out counsel that will be.
Settlements are usually a compromise between the two parties. With settlements, neither side receives everything they sought to gain from the case. The point of a settlement is to reduce the possibility of losses. The insurance company will typically only offer smaller amounts of money early on in negotiations. Insurance companies offer small amounts in the beginning to see if you are willing to accept a lesser dollar amount. 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. Insurance companies determine their suggested value of your compensation by looking at the specifics of your case. Since each case is very unique, it can be hard to determine the proper value of compensation. 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. 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. In wrongful death cases, the damages being sought are often of great monetary 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. The negligent party has an incentive to reduce their already-high monetary exposure. When more is at stake, the chances of a lawsuit are much higher. Lawsuits take some time to unfold. 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. Your consultation with us can either take place over the phone or through emails. 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. Many cases do not, and we’re also happy to reassure potential clients in these circumstances. Once we determine your case is one that we can help you with, we will travel to your general area and meet with you to further discuss the benefits of legal representation. 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’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. When you visit Probate Court, you’ll be given the opportunity to officially name someone the Representative of the Estate. This person then takes action on behalf of the Estate, including the bringing of any wrongful death claims. This statute only permits spouses and children to file a wrongful death claim for their deceased partner or parent. This suit can include the loss of companionship of the parent to the child. 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. 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. 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. Since there aren’t any beneficiaries noted by the statute, there is no one who can bring the claim. Since parents cannot bring a claim forward if their child is legally an adult, someone without children or a spouse cannot have a wrongful death claim brought forward in their name. 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. This would include all developmentally disabled children over the age of 18 whose disabilities prevent them from leading lives involving marriage and having children. 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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