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. Not all situations where one person’s actions or inactions were negligent result in a legal claim.
Ask yourself these three questions when looking to file a legal claim for wrongful death.
First, did the person who caused the injury breach a legal duty to the person who died?
In order to answer this question, determine whether or not the person responsible did not uphold their legal duty in respect to the injured party. 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. 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. The ex-husband kidnapped their three children and she reported it to the police. 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.
The next question you must answer is whether or not the person who caused harm did so in an unreasonable way and ended up breaching their legal duty.
This question is central to 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 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. This scenario of determining how they performed is known as the “standard of care.” There are more variables when it comes to negligence with doctors than there are with drivers because the rules are the same for all drivers in every situation.
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 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. 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. Thankfully, most personal injury lawyers offer free consultations. 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.
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 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. Special rules exist for cases that involve the wrongful death of children under 18 years old. 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, 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. 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 can cause injury, it is also capable of causing death. We accept wrongful death cases in all of our practice areas:
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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. Interestingly enough, not every personal injury attorney knows how to handle wrongful death cases. Your case will be unique, no matter how commonplace a component of the case might be. 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. Otherwise, depending upon what area of law your wrongful death case involves, you can find our basic advice on what to do for the following situations here:
In the case of a wrongful death, Washington State has a statute of limitations of three years. This means that you must file your lawsuit claiming compensation for a wrongful death within three years of the date of the incident. 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. Some incidents that result in death are actually considered assault cases, which have a statute of limitations of two years, not three. If you think you have a case, reach out to an attorney as soon as possible. Before your statute of limitations runs out, you must file your legal suit for wrongful death otherwise you lose your legal rights. Lawsuits can take longer than you anticipate. Aspects of your case, like figuring out who to sue, can become overwhelmingly 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. However, without this information, it makes it hard to proceed. If you do not ensure that your case is properly filed and timely served, then insurance companies will try their hardest to have your claim discredited and dismissed. 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. The most important thing you can do when you have a personal injury matter on your hands is to immediately contact an attorney.
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. Whether you settle or go to court, your attorney will be someone you rely on heavily. We let our clients know that it is the job of the attorney to provide them with important information regarding their case so their lawyer is the person they should listen to when it comes to risk analyses and advice. 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. The details of every case need to be carefully analyzed and reviewed to make sure that everything is taken into account. 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. 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. 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. The relationship between a client and their attorney includes a fiduciary duty on part of the attorney. This means that the attorney must put the client’s interest above their own. 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. 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. This means that seldom does either side get exactly what they want when settling their case. 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. Insurance companies start small and work their way up in order to see if you’ll accept a smaller 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. 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. 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. 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. 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 take some time to unfold. In King County a lawsuit typically takes about a year and a half to reach a trial date. In other counties this time frame can be much longer.
For those looking to find someone to represent them in a wrongful death case, Wiener & Lambka, PS, offers a free consultation to discuss details. This can be done via email or telephone. 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. 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. 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.
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. 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. 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. Once a child reaches the age of maturity, however, the claims that a parent can bring are severely curtailed. 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. 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. 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. 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. Thus, most children in the part of their life where they are in college or post-college and working but not yet married are not covered under Washington wrongful death laws. 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. Lawmakers have tried fixing this gap in legislature but so far it has been to no avail.
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