WRONGFUL DEATH

When the wrongful conduct of a third party results in a death, the law provides for a remedy on behalf of the victim’s survivors - this remedy is known as an action for “wrongful death.”  In California an action for wrongful death is controlled by statute.  California Code of Civil Procedure sections 377.60 through 377.62 set forth the basic law. 

Only certain survivors may prosecute a wrongful death action, and these generally include: 

1. (a)the decedent’s surviving spouse, domestic partner, and children (or grandchildren if the decedent’s children are not living)
   

2. (b)parents if there is no surviving spouse or children, and stepchildren to the extent they can demonstrate a dependence on the decedent
   

3. (c)a minor who is not a child of the decedent but who resided in the decedent’s household for the previous 180 days and was dependent on decedent for at least one-half of his or her support.
   

Damages in a wrongful death action are limited to loss of economic support that would have been provided by the decedent, as measured by the life expectancies of both the decedent and those claiming future support, whichever is shorter.  Expenses associated with the wrongful death such as funeral and burial expenses are recoverable as are expenses that will reasonably be made necessary in the future due to the absence of decedent’s financial support.  There is no recovery for the decedent’s pain and suffering - the action is not on behalf of the decedent, it is on the behalf of the survivors.  Also, recovery is not allowed for the survivor’s “pain and suffering” or “grief” as such, but the law does allow a recovery for general damages for the loss of “love, companionship, comfort, care and protection” which, in most instances, function as an equivalent of pain and suffering damages.

Damages recoverable in a wrongful death action are evaluated as of the time of the death not by subsequent events.  Thus, for example, the subsequent re-marriage of a decedent’s spouse is not admissible to show that the surviving spouse has “gotten over” the loss or that damages should be limited due to the remarriage.

As with a personal injury case, there are three primary areas of concern in a wrongful death action:

1. 1.Was there intentional or negligent conduct on the part of a third person or entity?
   

2. 2.Did the conduct of the third party play a substantial factor in the death?
   

3. 3.What damages have been sustained by the survivors?
   

Our firm has litigated numerous  wrongful death actions over the years, and they are all unique in one way or another.  These cases are, by nature, highly charged with emotion.  The loss of a loved one, whether spouse, parent, child or sibling touches deep emotional roots.  It is important to retain experienced legal counsel in dealing not only with the legal issues but also the real life concerns that will often bear on the prosecution of a wrongful death case.

There are several things to keep in mind if you are contemplating legal action arising out of a wrongful death of a love one and are initially consulting with a lawyer:

Be sure the lawyer allows for sufficient time in the initial interview to thoroughly discuss all aspects of the case: Wrongful death cases usually involve multiple legal and factual issues that cannot be adequately addressed in a brief half-hour interview session.  Both you and any lawyer that you are interviewing should set aside at least an hour, if not two, to go over all the relevant aspects of the case so that the lawyer can provide you with an initial evaluation.

Bring any relevant documents you have, including such things as the death certificate, medical records, police report, or other documentation that may bear on the issues:  Time is often wasted in accumulating relevant documents.  The time in the initial interview can be used more wisely and productively if the lawyer has the benefit of reviewing as many of the potentially relevant documents as you can  obtain at this stage of the process.  When the initial interview is being scheduled, it is a good idea to discuss with the lawyer what documents to bring.

Write down all important events and concerns and present the lawyer with as detailed a narrative as you can create:  We are all better at accurately recalling names, dates, and details if we have some time to calmly think about those things rather than responding “on the fly” in an interview.  It is very helpful to the initial interview process if you can present the lawyer with a narrative which discusses such things as:

1. •the full name, address, date of birth, educational and employment background of the decedent
   

2. •the relationship of the decedent to you and other surviving family members, listing those individuals by name, age, and relationship with the decedent
   

3. •the circumstances of the event which caused the death
   

4. •a list of incurred and expected expenses resulting from the death
   

5. •a description of the decedent’s health before the event which caused the death
   

6. •anything that you believe might be pertinent information that would help the lawyer better understand the uniqueness of the case
   

If there are multiple potential plaintiffs (for example multiple children, or surviving parents) do your best to have them all available, at least by telephone, in case there needs to be “group decisions” on going forward with the case: Wrongful death cases can sometimes create “rifts” among the survivors.  It is far better to deal with any such issues as soon as possible rather than after the case has been actively litigated.

Our firm prides itself on handling wrongful death cases with both a high level of legal expertise and sensitivity to the real life issues that are always part of these actions.