When a person dies or is killed due to the negligence or misconduct of another, including murder, the surviving members of the victim's family may sue for "wrongful death." Most wrongful death lawsuits follow in the wake of criminal trials, using similar evidence but with a lower standard of proof. Regardless, someone found liable for wrongful death may or may not be convicted of a crime associated with that death.

For example, former football star and actor O.J. Simpson was found not guilty of murder in 1994 because the prosecution was unable to establish his guilt beyond a reasonable doubt. But he was found liable for the wrongful death of the two victims in his civil trial because the plaintiffs were able to prove he was responsible by a preponderance of the evidence.

A suit for wrongful death may only be brought by the personal representative of the decedent's estate. Every state has a civil "wrongful death statute," or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent's death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will.

Elements of a Wrongful Death Lawsuit

In order to bring a successful wrongful death cause of action, the following elements must be present:

·        The death of a human being;

·        Caused by another's negligence, or with intent to cause harm;

·        The survival of family members who are suffering monetary injury as a result of the death, and;

·        The appointment of a personal representative for the decedent's estate.

A wrongful death claim may arise out of a number of circumstances, such as in the following situations:

·        Medical malpractice that results in decedent's death;

·        Automobile or airplane accident;

·        Occupational exposure to hazardous conditions or substances;

·        Criminal behavior;

·        Death during a supervised activity.

Damages in a Wrongful Death Lawsuit

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent's death. If the heirs-at-law or next-of-kin paid or are responsible for the decedent's funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent's death.

Determining Pecuniary Loss 
When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, among other factors. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in awarding damages is the decedent's circumstances at the time of death. For example, when an adult wage earner with dependants dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent's earnings at the time of death, the last known earnings if unemployed, and potential future earnings.

Using Expert Testimony to Determine Pecuniary Loss 
Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a homemaker died, but that rule has changed. When the decedent is a homemaker who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she or he was providing or would have provided if she or he had lived. Because jurors may not be knowledgeable regarding the monetary value of a homemaker's services, experts may aid the jury in this evaluation.

Survival Actions for Personal Injury

In addition to damages for wrongful death, the heirs-at-law or next-of-kin may be able to recover damages for personal injury to the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury. The decedent's personal representative can bring such an action together with the wrongful death action, for the benefit of the decedent's estate.

In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including: 1) the degree of consciousness; 2) severity of pain; and, 3) apprehension of impending death, along with the duration of such suffering.

Getting Help

If a loved one dies after an accident or injury caused by the negligence or misconduct of another individual, company or entity, you may be entitled to bring a legal action for wrongful death against those responsible. Especially in light of time deadlines for filing such a lawsuit, you should contact JEFFERSON LAW CENTER as soon as possible, to discuss your legal rights and your potential case.

Accidents are part of life, and sometimes they can have tragic results. But when an individual's negligent or intentional acts result in another's death, that person can be held liable for "wrongful death." Regardless if the victim died from murder or an accident stemming from negligence or strict liability, his or her family may claim monetary damages for their loss. And since the standard of proof for civil cases is lower than it is for criminal cases, sometimes individuals acquitted on murder charges can still be found liable for wrongful death.

While wrongful death suits involving high-profile murders often grab the headlines, most of these types of lawsuits involve motor vehicle accidents (particularly drunk driving), medical malpractice, dangerous consumer products (including pharmaceuticals), and workplace accidents (most of these resulting from work-related traffic incidents).

In addition to a wrongful death claim, the decedent's representative can also bring a survival action in order to collect damages for the benefit of the estate. A survival action is based on the pain and suffering that the decedent would have endured had he or she survived (whereas wrongful death suits are focused on the beneficiaries' loss).

Here are some resources to better understand the factors of a death case:

·     Mortality Data: Centers for Disease Control and Prevention (CDC) - Frequently updated statistics and data with regard to death, including the most common causes of death and infant mortality information.

·        Consumer Product Safety Commission - Provides information on consumer product recalls and other safety resources, including information on pool safety, baby cribs, carbon monoxide, and other household causes of accidental death.

·    Medline Plus: Injuries and Wounds - From the National Library of Medicine, alphabetically arranged resources on injuries and wounds.

·       National Highway Traffic Safety Administration - Provides information on highway safety and fatalities, with special sections on drunk driving, distracted driving, and other key issues.

·    National Institute for Occupational Safety and Health (NIOSH)- Comprehensive information on workplace safety, such as emergency preparedness, chemical exposure, and more.

·      National Patient Safety Foundation - Features patient safety resources and literature, covering a wide range of medical topics, such as ways to prevent infections in hospitals and pharmacy safety.

·        National Toxicology Program - Fact sheets, testing information, and study results regarding hazardous and toxic substances, including reports on common environmental carcinogens.

·       Violence Policy Center - Product Liability - Studies, fact sheets and press releases on firearms product liability, with studies and reports about gun litigation.

·        Swimming Pools: Safety is No Accident - Special report from Consumer Affairs on the dangers of swimming pools, liability issues, and how to make your pool safer.

If you have additional questions about a potential wrongful death lawsuit or would like to discuss a claim, consider meeting with a lawyer at JEFFERSON LAW CENTER.


Q: What if a person dies before bringing a personal injury lawsuit?
A: It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person's heirs or next-of-kin may recover money through a lawsuit. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the personal representative of the deceased person's estate.

Q: When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A: A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction such as imprisonment. In a civil case, the defendant will typically have a monetary judgment entered against him/her.

Q: Can I bring a wrongful death action if the deceased never held a job?
A: Yes, even if the decedent never held a job, he/she may have contributed in some other way to the family. A good example of such a case is an action for the wrongful death of a stay-at-home husband or wife who contributes services, guidance and nurturing of the family. These contributions are quantifiable as "pecuniary losses" in a wrongful death action.

Q: Can someone sue for the pain and suffering of a decedent?
A: Yes, in addition to the wrongful death, a decedent's family may recover damages for the pain and suffering that the decedent endured prior to death.

Q: Can I bring a wrongful death action based on the death of a child or an elderly person?
A: Yes, you can recover damages in a wrongful death cause of action for the death of either a child or an elderly person.