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?
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 result in compensation usually only when the guilty party was supposed to uphold a legal duty of some sort but they failed to do so. 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. Her ex-husband kidnapped their three children and she contacted the police to file a report. Despite making several requests for the police to find her husband and the children, they took no steps to do so. 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.
The second question is whether or not the person who had a legal duty acted in an unreasonable manner resulting in a breach of legal duty.
The answer to this question is important in all wrongful death and personal injury 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 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 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.
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, assume that someone falls from a horse while on vacation and breaks their neck. 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.
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 first step in any potential wrongful death case is to determine if the death was caused by someone else’s negligent behavior. This is a complicated question to answer and that is why wrongful death cases are considered so complicated. 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 we ultimately determine that we are not the best law firm for your situation, we will refer you to someone who can help you.
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. 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 something has the propensity to cause serious injury, death can also result from the action or event. 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. Not all personal injury lawyers fully understand wrongful death cases, either. Even if you think your experience was generic, it is still important and it is still unique. 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 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. We have compiled basic advice regarding wrongful death claims based on the area of law in question:
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. 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. Moreover, lawsuits can be complicated. 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. 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. If you or someone you know has a personal injury case to report, the most important first step is contacting an attorney immediately.
The most important trait of a lawyer is that they are someone you feel you can trust. As with any legal case, your personal injury suit will either result in a settlement, or you, along with your attorney, will go to court and explain the case before a judge. Whether you settle or go to court, your attorney will be someone you rely on heavily. 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. When you reach out to personal injury attorneys, they will usually listen to the details of your case during a free consultation and if they can help you, they’ll take your case on, but if they cannot assist you, they will refer you to someone who can. Each case is unique and presents issues that must be individually analyzed and then re-analyzed as each part relates to the whole of the case. 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. When looking for an attorney, there are now many different resources to help you evaluate whom it is you hire. 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. Reviews written about the attorneys at Wiener & Lambka, PS, are 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 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. 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 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.
In general, a settlement is often a compromise between parties where each side receives some sort of benefit. 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. 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 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. 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. Potential forms of damages in a wrongful death case include:
Since every case is different, some will resolve themselves in less time 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. Due to their high monetary exposure, the negligent party will already be very incentivized to reduce it. When more is at stake, the chances of a lawsuit are much higher. Lawsuits are very slow processes. 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.
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. Either way, we’re happy to take some time and talk with you about whether or not your case warrants an attorney getting involved. 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. While you are more than welcome to come to our offices, we believe that families who have suffered thea loss of a loved one have enough to worry about without also traveling to meet their attorney. 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.
The following statute talks about the protocol for wrongful deaths that transpire in the state of Washington:
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. 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. Under the Washington State statute, only the children or spouse of a deceased person can file a wrongful death claim in their name. 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. Parents lose a handful of rights to claim compensation for the wrongful death of their child when said child turns 18 years old. 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. If someone had a valid claim prior to their death, the claim holds true even after they pass and it can be beneficial to the Estate when the wrongful death claim goes to court. 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. Unfortunately, there aren’t any beneficiaries who can 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. Additionally, parents who reside outside of the United States cannot bring a claim for the wrongful death of the child. Many attempts have been made to fix this gap in the law without success.
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