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.
There are three main questions that need to be answered in order to file a legal claim for a 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. Sometimes people can act negligently, but because they have no duty under the law, there is no ability to compensate the injured party. 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.
There was a case back in 2005 in which a woman filed for protection against her former 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. 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.
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. The purpose of statutes is to govern how we must act while driving and stopping at red lights is one of those laws. If an accident is caused by someone intentionally disregarding traffic laws, then that person has acted in a negligent manner.
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.” 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.
The third question is whether or not the negligent actor caused the death in the particular case.
As an example, consider someone who fell while riding a horse and breaks their neck from the fall on vacation. 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.
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. 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. The question of whose negligence caused the death is now a key question in this case.
As you can tell from the previous section, wrongful death cases can sometimes be difficult to analyze. 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. In order to answer the question concerning negligence, it is advised that you seek insight and analysis from a personal injury attorney. Thankfully, most personal injury lawyers offer free consultations. 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 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. Parents who are still married can file the case jointly. 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 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. 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. 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. 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 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. 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. 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. 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. Consult an attorney immediately if you think that you have a case. 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 take longer than you anticipate. 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 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. Even though the statute of limitations is three years, you are strongly encouraged to begin the process of filing a claim much sooner. 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. Contacting an attorney immediately when you have a personal injury matter is the most important thing you can do.
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. 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 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. 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. If you really want to win your case, make sure you search out legal advice as soon as you can. When looking for an attorney, there are now many different resources to help you evaluate whom it is you hire. Not all ratings are equal but taking a look at all the resources out there can help you make a well-informed decision. 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. You can find these reviews here:
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When hiring an attorney, look for experience, interpersonal communications skills, a commitment to professionalism and advocacy for their clients. 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 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. Neither side receives exactly what they wanted from the situation when a settlement occurs. 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. 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. This is a subjective determination on some level regarding the evaluation of a case’s value. 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:
Since every case is different, some will resolve themselves in less time than others. 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 loss of a life and its effects upon that person’s immediate family can be devastating. The more devastating the loss, the more likely there will be disagreement with the party responsible for paying compensation for that loss. 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, 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. Either way, we are pleased to help you start your process. 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. 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. If we don’t hold the meeting at our offices, we usually select a convenient public space, like a coffee shop, for our meeting.
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. The person selected for this position will make moves on behalf of the Estate, such as filing a claim for wrongful death. Under the Washington State statute, only the children or spouse of a deceased person can file a wrongful death claim in their name. This suit can include the loss of companionship of the parent to the child. 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. 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. 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. Claims of this nature include any pain inflicted by the cause of death, as well as any trauma imposed by the outcome of the accident. 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. 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. 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. 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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