Law & Society

The death of a loved one is always a trying and traumatic time. The pain is even greater however, when the death is preventable. It is reasonable for surviving family members to ask themselves questions about wrongful death claims if they suspect something could have been done.

What Is a Wrongful Death Claim?
Historically, tort law, which is primarily based on English common law, had no provisions for collecting damages for an injury if the claimant died. According to common law, the claim died with the claimant. Family members of the decedent could not collect damages. To address this legally, states began adopting laws that would address wrongful death, the primary tenet of which is that the life that was ended was cut short, resulting in financial loss.
There are four components to a wrongful death claim:
• The death must have resulted from an injury caused by the defendant
• The defendant was either strictly liable of negligent in the death
• The decedent left surviving dependents
• Real monetary losses are suffered by the dependents

If one or more elements are missing, there can be no wrongful death case. For example, if a child is killed in an auto accident, a wrongful death claim might not be possible since the child was probably not supporting the family financially.

Who is Responsible for a Wrongful Death?
There are many types of accidents that occur where a family may file a wrongful death claim. In most cases, the party responsible for the death must meat the criteria above. Defendants may be found responsible for the death of the victim in any of the following situations:
• Vehicle accident
• Medical malpractice
• Defective product
• Construction accident

In some cases, there may be more than one party who can be found negligent or strictly liable for damages. For example, in a trucking accident, the trucking company may not only include the driver of the vehicle, but possibly the trucking company itself, if it is determined, their negligence in adequately training the driver was determined to be a factor in the case.

How is Compensation Determined?
Most states have adopted life expectancy tables to calculate how much compensatory damages can be claimed in a wrongful death lawsuit. By calculating the victims earnings at the time of death and up to their age of retirement, they can get a sense of what the victims earnings may have been had they lived. These calculations usually also take pensions and medical benefits into consideration. The future losses are often reduced to present value in an attempt to ensure that the victim's family is not overcompensated.

Damages may include:
• Lost wages
• Mental anguish
• Pain and suffering
• Medical expenses
• Loss of companionship
• Punitive damages

Some states also cap the amount of punitive damages that may be incurred. Punitive damages are meant to punish the responsible party for the death of the victim.

The wrongful act may be intentional, such as an intentional homicide or murder. More commonly, it is caused by the negligent act of another. The heirs of the person killed wrongfully have a right to file a civil action for monetary damages.

Many thousands of people are killed due to the wrongful act of another every year. According to the National Highway Transportation Authority, more than 30,000 people are killed in motor vehicle accidents. By some estimates, 98.000 to 195,000 die due to medical malpractice annually.

Workplace accidents, unsafe premises and unsafe products may kill thousands more annually.

Wrongful death actions

When a person has been killed due to the wrongful actions of another, the heirs of the decedent have a right to file a wrongful death action in an appropriate court. If an estate has been opened for the decedent, the personal representative of the estate, appointed by the court, will file the lawsuit.

If no estate has been opened, some states allow the lawsuit to be brought by the heirs at law. If dependents of the decedent, they may be entitled to lost income of the decedent, loss of love and society, medical expenses incurred and other damages.

Every state will have statute of limitations, or a legal deadline in which a lawsuit must be filed. In Indiana, the typical statute of limitations is 2 years from the date of death. An experienced Indiana wrongful death attorney should be consulted at the earliest opportunity to determine the specific statute of limitations.

Burden of Proof in a Wrongful Death Action

Whether a personal representative of an estate or the heirs at law bring a lawsuit, they will have to burden to prove that the death of the decedent was caused due to the wrongful act of another. They will be required to show that the act causing the death was either intentional or negligent. To show negligence, they must show the party causing the death failed to use reasonable care under the circumstances.

In most cases, an autopsy must be performed to determine the exact cause of death and to eliminate death by natural causes. An autopsy is especially important in cases of medical malpractice or death caused by an unsafe product. The decision to have an autopsy is usually a difficult decision to make for a grieving family.

In addition to an autopsy, evidence of the surrounding circumstances at the time of death is also vitally important. The location and statements of witnesses, forensic evidence and medical records need to be compiled at the earliest opportunity.

An experienced wrongful death attorney can investigate the circumstances surrounding the death to determine whether the death was due to a wrongful act, and whether a lawsuit can be filed.

Many people are surprised when they go to a wrongful death attorney, and then learn that they don't get paid unless they win the case. Actually, that's not totally true, but it's the basis for how these types of lawsuits get going, and why they've very circumspect as to which cases they'll accept and which ones they'll turn down.

Depending on the type of wrongful death lawsuit the lawyers are fighting, and the amount, wrongful death lawyers will charge anywhere from 30 to 50% of the damages awarded. There isn't any one standard for how much lawyers are allowed to receive, though the norm is usually below 40%. If the case goes into very high millions, often they'll accept a lower percentage of the award. This works especially well in class action wrongful death lawsuits.

One of the determinants in figuring out what percentage a lawyer might charge in some instances is how much in expenses a lawyer figures they might have to pay out of their own pockets. Expenses aren't always fully reimbursed, and because lawyers don't always get money if they happen to lose the case, they'll look to find ways to recoup their losses whenever they can. Something that happens from time to time is the plaintiff will get a little bit of money from an outside source that's related to the case in some fashion. Lawyers will usually write something in the contract that they get a percentage of that money that goes against their expenses, and will have it returned if they win the case. That's a caveat that some plaintiffs forget when lawyers ask for a portion of that money while the case is still being litigated.

The part about lawyers not necessarily being paid if they lose is that, sometimes, the judge will state that the defendants have to pick up all court costs and attorneys fees, even if their clients didn't win. That happens at least half the time, although it rarely happens in the case of a civil suit. It's totally at the discretion of the judge, which means it's something that no one is ever sure will happen at the time.

When Caryl Chessman died in California's gas chamber 50 years ago – probably the state's most notorious execution – 18 inmates were left on death row. Today, there are 702. The last execution at San Quentin State Prison was that of Clarence Ray Allen on Jan. 17, 2006, the 13th in California since 1978.

Since that day, at least 205 convicts have been executed in other states, 24 death row inmates at San Quentin have died from natural causes or suicide, and 83 people have been sentenced to death in California courts.

But no one has been executed in California since Allen. That's largely because of two court challenges over the state's lethal injection methods and its attempt to short-circuit the procedure for revising those methods.

Now corrections officials hope they are on the verge of winning approval of their rewritten lethal injection rules, which will give the rules the force of law. That approval, due by Friday, will reignite a pending legal battle over whether California can rejoin 34 other states that have the death penalty, and whether it should.

Supporters and opponents say the likelihood of executions resuming anytime soon in California is slight. "I've just kind of lost faith in the system, that it's ever going to work," said Barbara Christian, a 72-year-old Wilton woman whose daughter, Terri Lynn Winchell, was savagely raped and murdered 29 years ago when she was 17. "I'd like to see justice for my daughter."

I think Ms. Christian's pessimism is justified, and I will be surprised if California gets back into the business of execution anytime soon. As this Bee article does on to spotlight, the new California protocol will surely be challenged vigorously in both state and federal courts, and there is little reason to for death penalty abolitionists to fear, or for death penalty proponents to hope, that the judges on the Ninth Circuit in particular will be in any big rush to make sure lethal injection litigation gets resolved quickly.

The extraordinary slow pace in which California has tried to improve its lethal injection protocol stands in remarkable contrast to Ohio's ability late last year to completely revise its execution protocol and resume executions within a matter of months. The Ohio lethal injection story highlights that where this is a true will, there is often a real way to improve the administration of capital punishment. But I do not think this will really exists in California, even though the state clearly enjoys putting more people on death row than any other state in country.