Legal rights can be claimed for a wrongful death if your family member died as a result of negligent actions. Not all situations where one person’s actions or inactions were negligent result in a legal claim.
There are three main questions that need to be answered in order to file a legal claim for a wrongful death.
The first question to answer is if the guilty party had a legal duty to uphold.
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. An example that may surprise you is that you cannot sue the police for not protecting you, according to a United States Supreme Court ruling.
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. Even though she repeatedly asked that the police look for her children, they did not open a case. 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.
This question is central to 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. There are statutes governing how we are required to act when driving, including stopping at red lights. If somebody does not follow the rules and causes an incident as a result, their actions are considered negligent.
Sometimes negligence is harder to define. 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. The term for this is “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.
As an example, consider someone who fell while riding a horse and breaks their neck from the fall on vacation. 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.
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.
As you can tell from the previous section, wrongful death cases can sometimes be difficult to analyze. 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 there, it is best to turn to legal professionals. Thankfully, most personal injury lawyers offer free consultations. 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.
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. 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 purpose behind this is to make sure one parent doesn’t do something that the other parent does not know about.
If something has the propensity to cause serious injury, death can also result from the action or event. We accept wrongful death cases in all of our practice areas:
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First and foremost, contact an attorney. 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. 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. 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. 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:
Most wrongful death cases in Washington generally have a three-year statute of limitations. The statute of limitations is a date by which you must either resolve or properly file and serve your lawsuit against the negligent party. 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. 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. Consult an attorney immediately if you think that you have a case. Because the statute of limitations is a statute that can cut off your legal rights, it is important to take action far before the deadline. 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. 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. The statute of limitations is three years, but we advise that you begin the process 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. 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.
Above all, whoever you hire should be someone you can trust. As with any legal case, your personal injury suit will either result in a settlement, or you, along with your attorney, will go to court and explain the case before a judge. Either way, you will depend to some degree on your attorney for advice. 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. 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. Since each case is unique in its own rights, every single detail needs to be looked at with care. The more you care about the outcome of your case, the more important it is that you find legal advice to assist your case. There are many resources out there to help you find an attorney that is the most suitable for your case. 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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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 requires a lawyer to put his/her client’s interest at the forefront and prioritize their client’s wishes over their own opinions. 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. 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. 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.
Settlements are usually a compromise between the two 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. At the start of a negotiation during a settlement, the insurance company for the guilty party will only offer small amounts of financial compensation. Insurance companies start small and work their way up in order to see if you’ll accept a smaller 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. This is a subjective determination on some level regarding the evaluation of a case’s value. 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. In wrongful death cases, the damages being sought are often of great monetary value. Sudden death inflicts a lot of pain upon the family members who lost their loved one. A more devastating and unexpected loss will cause greater tension and disagreements among parties when trying to settle. Due to their high monetary exposure, the negligent party will already be very incentivized to reduce it. 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. The time frame differs vastly across the state.
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 are pleased to help you start your process. Many cases do not, and we’re also happy to reassure potential clients in these circumstances. Once we determine your case is one that we can help you with, we will travel to your general area and meet with you to further discuss the benefits of legal representation. 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.
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. Accordingly, the first thing that needs to be done is create the Estate in the 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. 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. If someone had a valid claim prior to their death, the claim holds true even after they pass and it can be beneficial to the Estate when the wrongful death claim goes to court. 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. 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. Lawmakers have tried fixing this gap in legislature but so far it has been to no avail.
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