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.
In order to file a legal claim regarding wrongful death, ask yourself three questions.
The first question to answer is if the guilty party had a legal duty to uphold.
To answer this question, figure out if the perpetrator acted negligently while expected to uphold a legal duty of some sort, like a police officer for example. Negligent actions are common but they do not always constitute compensation. 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. Even though she repeatedly asked that the police look for her children, they did not open a case. 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 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. An example of a breach of duty is a driver who does not come to a stop at a red light and subsequently causes a car crash. The purpose of statutes is to govern how we must act while driving and stopping at red lights is one of those laws. When someone fails to act responsibly and subsequently makes a mistake, they will be deemed 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. This is described 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.
As an example, consider someone who fell while riding a horse and breaks their neck from the fall on vacation. After consulting with a doctor and having an X-ray done of their spine, the patient is cleared to board an airplane and fly back home. Assume also that this decision violates that standard of care because a reasonable doctor in that situation would not have allowed further travel due to the possibility of further harm resulting in death from the movements of travel.
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 priority whenever a wrongful death occurs is to determine who acted negligently. While this can be complicated, this is the basic question that all such cases start with. In order to answer the question concerning negligence, it is advised that you seek insight and analysis from a personal injury attorney. Most personal injury lawyers offer free consultations to discuss the details of your case. 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 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.
The following categories of people are those allowed to file a wrongful death claim in the state of Washington:
· 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. Special rules exist for cases that involve the wrongful death of children under 18 years old. 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 something has the propensity to cause serious injury, death can also result from the action or event. We have the skills to take on wrongful death cases in all areas of our legal practice:
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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. 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. For example, you might have a straight-forward automobile accident where someone struck 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. 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. 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:
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. 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. Talk to an attorney as soon as you can to determine if 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. In our many years of practice, we’ve even run into clients who come to us with a case but have no information about the person who caused them harm. However, without this information, it makes it hard to proceed. Insurance companies will do everything in their power to throw out your case if you do not properly file and serve the lawsuit. The statute of limitations is three years, but we advise that you begin the process much earlier. This is especially true in matters of great importance like wrongful death claims. The statute of limitations is not a deadline but rather a cautionary timeframe letting you know how much time you have before your rights for compensation expire. The most important thing you can do when you have a personal injury matter on your hands is to immediately contact an attorney.
It is important that you find an attorney that you trust. Your case will either end in a settlement or a trial in court. Either way, you will depend to some degree on your attorney for advice. We tell all of our clients that it is our job to provide them with important information and risk analyses so that they can make a good decision about their case. 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. Each case is unique and presents issues that must be individually analyzed and then re-analyzed as each part relates to the whole of the case. 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 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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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. 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 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. This means that seldom does either side get exactly what they want when settling their case. The point of a settlement is to reduce the possibility of losses. 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 offer small amounts in the beginning to see if you are willing to accept a lesser dollar amount. Once past this stage, insurance companies will often make offers that are designed to have a value to them that parts with money now in an effort to eliminate the possibility of paying more later. Insurance companies determine their suggested value of your compensation by looking at the specifics of your case. It can become very difficult to determine the appropriate compensation amount because cases are complicated and every incident is unique. 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. 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. It is more likely that the guilty party and his/her insurance provider will face more disagreements with the victim’s family if the death was extremely sudden and out of nowhere. 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 are not fast-moving entities. Lawsuits in King County usually don’t even reach a trial date until a year and a half after the case is opened. Not all counties are this quick either.
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. 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. Not all cases require that an attorney get involved and we are honest about that from the beginning. 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. You are more than welcome to meet us at our offices, but we offer to come to you as a way of lessening your stress following the loss of a loved one. 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.
In Washington State, a cause of action can only be brought to court through the deceased person’s estate. Accordingly, the first thing that needs to be done is create the Estate in the Probate Court. This includes the selection and appointment of a person to be the Personal 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. Suits filed by spouses and/or children can state ‘loss of companionship’ as a reason for filing. 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. 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. 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. Pre-death pain, suffering, trauma, and terror are all included as valid claims. 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. 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. People who are young adults and in their pre-marriage stages in life are not covered by Washington law if they were to pass away in a wrongful death incident. Developmentally-delayed people who are of adult age are also unprotected under Washington State law. 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. Many attempts have been made to fix this gap in the law without success.
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