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. However, negligence does not always guarantee 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?
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.
There was a case back in 2005 in which a woman filed for protection against her former husband. The ex-husband kidnapped their three children and she reported it to the police. Despite making several requests for the police to find her husband and the children, they took no steps to do so. 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.
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.
This question is at the heart of many personal injury and wrongful death 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. Statutes govern how we are to act so that accidents do not occur. If an accident is caused by someone intentionally disregarding traffic laws, then that person has acted in a negligent manner.
Negligence is a more difficult question in other contexts. 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 scenario of determining how they performed is known as the “standard of care.” This standard is more subjective and requires more analysis than someone who simply disregards traffic laws.
The third question is whether or not the negligent actor caused the death in the particular case.
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. 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 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 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 this point forward, each case is unique and requires independent analysis from a competent attorney. 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 don’t accept your case we can explain why and offer other options for you to continue forward or have another attorney provide a second opinion.
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. 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 a child is killed and the parents of said child are not married under law, then the parent who provided most of the care to the now-deceased child is the only guardian legally allowed to file a claim for wrongful death of their child. 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 something can cause injury, it is also capable of causing death. Within all of our areas of practice, we take on wrongful death cases:
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The most important thing to do is 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. For example, you might have a straight-forward automobile accident where someone struck your loved one from behind. The general overview of a car accident from behind sounds very simple but there are always specific details that set it apart from other crashes from behind. 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 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. 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 Washington State, the statute of limitations is usually three years for wrongful death cases. 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. 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. If you think you have a case, reach out to an attorney as soon as possible. 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. 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 information, however, it’s hard for lawyers to form a case and file a claim on your behalf. Insurance companies will do everything in their power to throw out your case if you do not properly file and serve the lawsuit. While the statute of limitations provides three years to act, we advise doing so much earlier. All cases should begin immediately after the incident happens, but we emphasize it more strongly with wrongful death cases. Moreover, this should not be considered a deadline as much as it is something to be aware of. If you or someone you know has a personal injury case to report, the most important first step is contacting an attorney immediately.
It is important that you find an attorney that you trust. Your case will either end in a settlement or a trial in court. No matter the outcome, you will heavily rely upon the person representing you. 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. 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. Personal injury attorneys tend to offer free consultations to discuss the details of your case and they will either accept your case or point you in the right direction. The details of every case need to be carefully analyzed and reviewed to make sure that everything is taken into account. 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. You can find these reviews 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 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. You should definitely seek out other attorneys if you feel that your attorney does not have utmost interest in your case or the outcome that results. At the end of your case there will only be one settlement or award and you won’t ever get a chance to come back later for another bite at the apple. 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.
Most settlements are made as a compromise between the parties. With settlements, neither side receives everything they sought to gain from the 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. 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. 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. It is good for each side to have an understanding of how little they are willing to settle for. The types of damage that can occur as a result of wrongful death cases include the following:
Some cases might take less time to resolve and conclude than others, the reason being that every case is so different. In wrongful death cases, the damages being sought are often of great monetary value. The family of someone tragically killed suffers greatly for the unexplainable loss. A more devastating and unexpected loss will cause greater tension and disagreements among parties when trying to settle. 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 a lawsuit typically takes about a year and a half to reach a trial date. The time frame differs vastly across the state.
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’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. 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.
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 Washington wrongful death law allows for the creation of a cause of action that can be brought only through the estate of the deceased. Before anything else happens, the Estate must be created in Probate Court. In Probate Court, you will choose someone to hold the title of 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. This statute only permits spouses and children to file a wrongful death claim for their deceased partner or parent. 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. Once a child reaches the age of maturity, however, the claims that a parent can bring are severely curtailed. 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. This would include pre-death pain and suffering as well as terror if the facts of the case support such a claim. 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. 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. 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. Non-US residents cannot file wrongful death claims for their children either. Lawmakers have tried fixing this gap in legislature but so far it has been to no avail.
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