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.
Ask yourself these three questions when looking to file a legal claim for wrongful death.
First of all, did the guilty party responsible for the accident breach their legal duty?
This means that the person had to have acted in a negligent manner, but in the context of having a legal duty. 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.
This stems from a 2005 case where a woman had obtained a protective order against her former husband. Her ex-husband kidnapped their three children and she contacted the police to file a report. The police did not take steps to locate her children or their father, despite numerous requests from the mother. 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.
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. 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. 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.
Sometimes negligence is harder to define. For example, in order to find a doctor negligent, a jury must determine whether or not the doctor acted in a manner that was below the expectations of a reasonable doctor in the same specialty, acting under the same circumstances. This is described as the “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. 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.
Upon landing the patient is being driven to a hospital for care when his vehicle is struck by another driver. 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.
To state the obvious, wrongful deaths make for very complicated legal cases. 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. In order to answer the question concerning negligence, it is advised that you seek insight and analysis from a personal injury attorney. Fortunately, the majority of attorneys in this field offer free consultations on such matters. At Wiener & Lambka, PS, we also offer a free consultation and spend a lot of time reviewing matters for potential clients without charge, even though we end up taking on representation in only a small percentage of the cases we review. 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.
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.
The deceased person’s direct family can file a wrongful death claim on their behalf if they were not married or did not have children of their own. 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. 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. 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. 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. For example, you might have a straight-forward automobile accident where someone struck 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 sooner you call upon legal assistance, the more prepared you can be for taking your case to court. 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. 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. If you do not abide by the statute of limitations for any case, you lose your rights to claim compensation. You should look into the nature of your case immediately because sometimes, a situation seems like a wrongful death case, but it actually falls under another category. Assault, for example, has a two-year statute of limitations. 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. Aspects of your case, like figuring out who to sue, can become overwhelmingly difficult. We have even had clients come to us who did not obtain the name of the driver who negligently caused a collision with them. However, without this information, it makes it hard to proceed. 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. All cases should begin immediately after the incident happens, but we emphasize it more strongly with wrongful death cases. 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. Contacting an attorney immediately when you have a personal injury matter is the most important thing you can do.
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. 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 leave the big decision-making up to 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. Most personal injury attorneys will talk with you for free about your case and provide advice on how to best proceed. 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 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. 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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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 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.
Settlements are usually a compromise between the two 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 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. They determine the value of compensation by looking at the case in full. It can become very difficult to determine the appropriate compensation amount because cases are complicated and every incident 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:
Every case is unique and some will resolve more quickly than others. 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. 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. 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.
The lawyers of Wiener & Lambka, PS, offer free consultations to people in search of legal assistance. Your consultation with us can either take place over the phone or through emails. Either way, we’re happy to take some time and talk with you about whether or not your case warrants an attorney getting involved. Many cases do not, and we’re also happy to reassure potential clients in these circumstances. 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. 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.
Here is an in-depth discussion about wrongful deaths in 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. You should immediately turn to Probate Court and create an Estate on behalf of your deceased loved one. 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. 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. 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. 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. 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. 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. Developmentally-delayed people who are of adult age are also unprotected under Washington State law. Non-US residents cannot file wrongful death claims for their children either. Attempts have been made to change these laws but nothing has been successful yet.
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