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. Not all situations where one person’s actions or inactions were negligent result in 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 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. 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.
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. The police did not take steps to locate her children or their father, despite numerous requests from the mother. 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. 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. 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 order to declare someone, like a doctor, as acting negligently in the healthcare industry, you would need to compare the actions of the doctor in question to one of his equals faced with the same situation. This scenario of determining how they performed is known as the “standard of care.” This is a much more subjective standard and subject to much more debate than someone who fails to drive their car consistent with traffic laws.
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 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.
He lands at the airport near his home and gets in a car heading to the hospital where he’ll receive further medical care, but along the way, another vehicle crashes into the one transporting him. As a result of the crash, the man’s spine is only slightly impacted, but the additional trauma, no matter how small, ends up breaking his neck completely and causing his death. The question of whose negligence caused the death is now a key question in this case.
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. This is a complicated question to answer and that is why wrongful death cases are considered so complicated. 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 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. If the parents are still married, they usually file a claim jointly rather than individually. 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. 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. There is no reason why you would be expected to suddenly understand all that needs to be learned about insurance, the legal system, and the medicine that is involved. Interestingly enough, not every personal injury attorney knows how to handle wrongful death cases. Your case will be unique, no matter how commonplace a component of the case might be. 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. While this part of the case may well be simple, there are always, in every case, unique facts that need to be analyzed and handled properly. 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 the attorney does not introduce new information to you, their presence and assistance can reassure you, at the very least, that you are acting in your best interests. 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. 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. 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. Consult an attorney immediately if you think that 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 take longer than you anticipate. Finding the right party to sue can sometimes be 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. Insurance companies will do everything in their power to throw out your case if you do not properly file and serve the lawsuit. 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. 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. No matter the outcome, you will heavily rely upon the person representing you. 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 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. Most personal injury attorneys will talk with you for free about your case and provide advice on how to best proceed. Since each case is unique in its own rights, every single detail needs to be looked at with care. 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 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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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 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. 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.
In general, a settlement is often a compromise between parties where each side receives some sort of benefit. 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. They want to see if the injured party will accept the smaller amount before becoming more reasonable. Once the insurance companies understand you will not settle for less compensation money than you feel you deserve, they will try to offer you a lot of money upfront to avoid paying more later on. They determine the value of compensation by looking at the case in full. 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:
Every case is unique and some will resolve more quickly than others. Since the damage caused in wrongful death incidents usually involves items of high monetary value, compensation is usually a high dollar amount as well. Sudden death inflicts a lot of pain upon the family members who lost their loved one. 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. Because the negligent party has such high monetary exposure, they have a corresponding incentive to fight to try to reduce that exposure. When more is at stake, the chances of a lawsuit are much higher. Lawsuits are not fast-moving entities. In King County, it takes an average of one year and six months for a case to just reach a trial date. Not all counties are this quick either.
For those looking to find someone to represent them in a wrongful death case, Wiener & Lambka, PS, offers a free consultation to discuss details. 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. Not all cases require that an attorney get involved and we are honest about that from the beginning. 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. If we don’t hold the meeting at our offices, we usually select a convenient public space, like a coffee shop, for our meeting.
Here is an in-depth discussion about wrongful deaths in 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. 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. 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. 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. 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. 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. 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. Under these circumstances, there are no beneficiaries listed in the statute to bring the claim. Parents cannot bring a case of action for adult children, so if they didn’t have a partner or any surviving children, then there isn’t a case. 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. 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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