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. However, negligence does not always guarantee a legal claim.
In order to file a legal claim regarding wrongful death, ask yourself three questions.
First, did the person who caused the injury breach a legal duty to the person who died?
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. 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. Despite making several requests for the police to find her husband and the children, they took no steps to do so. 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 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 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. When someone fails to act responsibly and subsequently makes a mistake, they will be deemed 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.” 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, 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 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. This is where it gets tricky to determine which party’s negligence caused the death.
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. Most personal injury lawyers offer free consultations to discuss the details of your case. 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.
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. 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. 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. The parent who files a wrongful death claim must notify the other parent within twenty days of the file date, as well as provide them with a copy of the legal document. 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 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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The most important thing to do is 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. In fact, many personal injury attorneys don’t fully understand each of these areas of law. Even if you think your experience was generic, it is still important and it is still unique. A car crash in which your loved one was hit from behind is an example of a case that people would consider average given the common nature of the accident. 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 earlier you contact an attorney, the earlier you can learn how to properly handle your case. 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. 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. 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 become complicated and end up taking more time than originally planned. 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. Even with them, the insurance companies defending the cases that we see will take every opportunity to try to have a case dismissed if not properly filed and served. Even though the statute of limitations is three years, you are strongly encouraged to begin the process of filing a claim much sooner. 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. At the end of your case you will either settle the matter or go to court and have a jury or judge give an award. 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. 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. While not all ratings are equal, looking at all of the different pieces of information is still valuable. 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. Our reviews can be found here:
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When hiring an attorney, look for experience, interpersonal communications skills, a commitment to professionalism and advocacy for their clients. Within the professional relationship, an 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 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.
Settlements are usually a compromise between the two parties. With settlements, neither side receives everything they sought to gain from the case. Settlements, on both sides, are a product of risk reduction. 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. 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. It is good for each side to have an understanding of how little they are willing to settle for. 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. Sudden death inflicts a lot of pain upon the family members who lost their loved one. The more devastating the loss, the more likely there will be disagreement with the party responsible for paying compensation for that loss. Because the negligent party has such high monetary exposure, they have a corresponding incentive to fight to try to reduce that exposure. The more there is to fight over, the more likely that a lawsuit will be involved. Lawsuits take some time to unfold. In King County, it takes an average of one year and six months for a case to just 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. We can talk to you by phone or through email. 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. 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. 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.
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 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. 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. Under the Washington State statute, only the children or spouse of a deceased person can file a wrongful death claim in their name. Suits filed by spouses and/or children can state ‘loss of companionship’ as a reason for filing. 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. A parent is only able to file a wrongful death claim for their child past the age of 18 if the child provided economic and/or financial support for the parent prior to the child’s untimely death. 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. This would include pre-death pain and suffering as well as terror if the facts of the case support such a claim. 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. 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. For this reason, most people are not covered under Washington State law for wrongful death. 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. Attempts have been made to change these laws but nothing has been successful yet.
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