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. 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 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. 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.
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. 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 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 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 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 is a much more subjective standard and subject to much more debate than someone who fails to drive their car consistent with 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. 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. Negligence and responsibility for a wrongful death are hard to determine in situations like these.
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. While this can be complicated, this is the basic question that all such cases start with. From there, it is best to turn to legal professionals. Fortunately, the majority of attorneys in this field offer free consultations on such matters. 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.
In Washington State, the following individuals are allowed 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. 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, they must inform the other parent that they did so, as well as provide a physical copy of the filed claim to the other parent. 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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The first thing you should do is contact a lawyer. 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. Interestingly enough, not every personal injury attorney knows how to handle wrongful death cases. No matter what happened in the actual incident, your case is unique to you and your family. 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 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 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. We have compiled basic advice regarding wrongful death claims based on the area of law in question:
In the case of a wrongful death, Washington State has a statute of limitations of three years. 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 disregard a statute of limitations and try to file a claim outside of the timeframe, you are no longer legally eligible for compensation. Other statutes can apply to cases that might otherwise also be considered a wrongful death suit. Some incidents that result in death are actually considered assault cases, which have a statute of limitations of two years, not three. 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 become complicated and end up taking more time than originally planned. Finding the right party to sue can sometimes be difficult. 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. Even with them, the insurance companies defending the cases that we see will take every opportunity to try to have a case dismissed if not properly filed and served. While the statute of limitations provides three years to act, we advise doing so much earlier. Any case, no matter the nature of it, should be opened as soon as possible, but it is especially imperative that wrongful death cases are started immediately. 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.
It is important that you find an attorney that you 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 do not make big decisions for our clients. How much to accept, whether or not to sue, and whether or not to settle or go to trial are all questions resolved by the client. 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. Since each case is unique in its own rights, every single detail needs to be looked at with care. If you really want to win your case, make sure you search out legal advice as soon as you can. Many resources exist to help you find an attorney that will work best for your needs and your case in general. Not all of the ratings you will find are going to be accurate and honest but they can give you a general overview of the attorneys. 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. 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. Within the professional relationship, an 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 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. 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. They want to see if the injured party will accept the smaller amount before becoming more reasonable. 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. Value is often very hard to determine because each case is unique. Prior to agreeing to something in a settlement, you should have an idea of the minimum value which you are willing to settle for and accept as compensation. The types of damage that can occur as a result of wrongful death cases include the following:
Since every case is different, some will resolve themselves in less time than others. Wrongful death cases involve compensation in great amounts because the damage involves items of high value. The loss of a life and its effects upon that person’s immediate family can be devastating. A more devastating and unexpected loss will cause greater tension and disagreements among parties when trying to settle. Because the negligent party has such high monetary exposure, they have a corresponding incentive to fight to try to reduce that exposure. The odds that a lawsuit will result from wrongful death claims is much higher when there is more to fight over. Lawsuits are very slow processes. In King County a lawsuit typically takes about a year and a half to reach a trial date. The time frame differs vastly across the state.
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. 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. If your case does not require legal assistance, we will reassure you about your situation and inform you of how to proceed. 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. 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. 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.
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.
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. Before anything else happens, the Estate must be created in 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 State law allows legal claims to be made by parents when their children are killed before they reach the age of 18, too. Once a child reaches the age of maturity, however, the claims that a parent can bring are severely curtailed. A parent is only able to file a wrongful death claim for their child past the age of 18 if the child provided economic and/or financial support for the parent prior to the child’s untimely 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. 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. 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. 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. 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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