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.
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. Sometimes people can act negligently, but because they have no duty under the law, there is no ability to compensate the injured party. 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.
In 2005, a woman filed for a protective order against her ex-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. The father ultimately killed the three children, prompting the mother to sue the police department for failing to take action and find the children, but the Supreme Court turned down her suit 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 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. 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.
Last but not least, determine if the person who died was killed as a direct result of negligent behavior.
For example, assume that someone falls from a horse while on vacation and breaks their neck. 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. It is common knowledge that flying too soon after an injury can result in serious consequences so the doctor who cleared the patient for a flight home violated the standard of care.
After the patient lands, he is being transported to the hospital for further medical care when another driver crashes into him. 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.
To state the obvious, wrongful deaths make for very complicated legal cases. The key question is whether the death was caused by another person’s negligence. 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. Most personal injury lawyers offer free consultations to discuss the details of your case. 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 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. 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, 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 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. Wrongful deaths are such an unplanned occurrence that not many people know how to proceed, and we don’t expect you to know the rules regarding insurance or how the legal system handles these situations. Not all personal injury lawyers fully understand wrongful death cases, either. 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 the general details of this type of personal injury incident sound very simple, the specifics of the case make the incident more unique. 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. 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 do not abide by the statute of limitations for any case, you lose your rights to claim compensation. Other statutes can apply to cases that might otherwise also be considered a wrongful death suit. 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. Talk to an attorney as soon as you can to determine if 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 information, however, it’s hard for lawyers to form a case and file a claim on your behalf. 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. This is especially true in matters of great importance like wrongful death claims. 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.
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. 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 the big decisions on behalf of 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. 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. 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. While not all ratings are equal, looking at all of the different pieces of information is still valuable. 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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When hiring an attorney, look for experience, interpersonal communications skills, a commitment to professionalism and advocacy for their clients. The attorney-client relationship is one wherein the attorney has a fiduciary duty to his/her client. A fiduciary duty requires a lawyer to put his/her client’s interest at the forefront and prioritize their client’s wishes over their own opinions. 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 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.
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 aim to please both sides while minimizing the losses and risks involved. 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. Since each case is very unique, it can be hard to determine the proper value of compensation. In the end, both sides must try to accurately determine what is the amount that they would be willing to accept or pay in exchange for giving up the opportunity of getting more, or eliminate the opportunity of the other side doing better. Potential forms of damages in a wrongful death case include:
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 family of someone tragically killed suffers greatly for the unexplainable loss. The more devastating the loss, the more likely there will be disagreement with the party responsible for paying compensation for that loss. The negligent party has an incentive to reduce their already-high monetary exposure. The more there is to fight over, the more likely that a lawsuit will be involved. Lawsuits are not fast-moving entities. 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.
The lawyers of Wiener & Lambka, PS, offer free consultations to people in search of legal assistance. We can talk to you by phone or through email. 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 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.
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 Washington wrongful death law allows for the creation of a cause of action that can be brought only through the estate of the deceased. You should immediately turn to Probate Court and create an Estate on behalf of your deceased loved one. In Probate Court, you will choose someone to hold the title of 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. The Washington statute allows for causes of action to be made by the spouse and/or children of the person who has died. This suit can include the loss of companionship of the parent to the child. Washington law allows also for a legal claim to be made by the parents when a child under the age of 18 is wrongfully killed. 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. 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. The law in Washington State doesn’t allow wrongful death claims to be filed if the person who died was neither married nor had 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. 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. Anyone whose disabilities prevent them from getting married and having children are also unprotected by the laws in Washington State. Additionally, parents who reside outside of the United States cannot bring a claim for the wrongful death of the child. Many attempts have been made to fix this gap in the law without success.
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