Frequently Asked Questions about Wrongful Death

Q: What is the difference between a civil case and a criminal case against someone who caused a death?
A: A criminal case can only be brought by the government. The prosecutor makes a case against the person accused of a crime, seeking prison time or another punishment. The prosecutor must meet a higher standard of proof than in a civil case. A civil case can be filed by anyone whose private rights or civil rights have allegedly been violated by another party. When a private party files a civil lawsuit for wrongful death, the party is seeking monetary damages, compensation for the loss suffered. A civil trial for wrongful death, therefore, is very different from a criminal trial for murder or manslaughter.

Q: What if an unborn child dies?
A: In many states, the baby must be born alive for its death to be the subject of a wrongful death lawsuit. This is not always the case, however. In some states, the fetus must have been viable (able to live outside the mother’s womb) even though it was not born; in other states, viability is not an issue. Because the law varies so much from state to state, it is wise to consult an attorney who knows the laws in your area.

Q: Are all state laws the same regarding wrongful death?
A: No. Because states make their own wrongful death laws, they differ quite a bit. Sometimes, you may have a choice of the state in which you file a lawsuit. This is an important decision. The length of time each state gives a plaintiff to file a wrongful death lawsuit may be different, along with the type of monetary damages the state will allow the plaintiff to recover.

Q: Are punitive damages recoverable in wrongful death actions?
A: Punitive damages are an extra monetary penalty against the party found legally responsible in a civil lawsuit. They are usually awarded because the defendant’s behavior was reckless or malicious. Some, but not all, jurisdictions allow plaintiffs to seek punitive damages in wrongful death cases. Your attorney can tell you more.

Q: What if a person dies before bringing a personal injury lawsuit?
A: If the person dies of the injuries that would have been the subject of the lawsuit, then the representative or heirs may be able to file a wrongful death lawsuit; depending on the state, they may include the personal injury lawsuit, too. If the person who was injured dies of other causes, then the representative or heirs usually can file the personal injury lawsuit on behalf of the person’s estate. If the statute of limitations has run on the personal injury lawsuit, and the death resulted from those injuries, the legal claim may not be valid anymore. Each state treats the situation according to its own laws; competent legal advice can help you sort out your state’s approach.

Q: Can a plaintiff bring a wrongful death action if the deceased never had a job?
A: Even if a loved one never had a job, he or she might have contributed to the family in other ways. The plaintiff may be compensated for services the deceased person had been providing and would have continued to provide. This includes housekeeping, childrearing and similar activities. In some states, the plaintiff also may recover for the loss of companionship in addition to medical and funeral expenses. If the loved one was in school to prepare for a profession, this could also be taken into consideration.

Q: Can a plaintiff sue for the pain and suffering of the decedent in a wrongful death lawsuit?
A: While a wrongful death award compensates the survivor, a pain and suffering award normally compensates the person who experienced the pain and suffering. Some states allow pain and suffering to be included in a wrongful death lawsuit; others do not. The pain and suffering must have been due to the injuries that eventually caused death, and the person who died must have been conscious enough to actually experience the pain and suffering.

Q: Can I bring a wrongful death action based on the death of a child or an elderly person?
A: Yes. The calculation of damages, however, may be different than if a parent who supported a family had passed away. It is likely focus on the non-monetary contributions or the services that the deceased provided to the family.