In the state of California, a wrongful death occurs when a person dies through the intentional, reckless, or negligent actions of another person or entity. The three main categories that typically constitute a wrongful death claim are:

• Negligence-based accidents (auto, workplace, construction, premise liability, product malfunctions, etc.)
• Malpractice (medication errors, misdiagnoses, failure to diagnose, anesthesia errors, surgical errors, birth injuries, general medical errors)
• Intentional acts (crimes, premeditation)

Similar to a personal injury lawsuit, in a civil wrongful death lawsuit, the plaintiff is seeking only financial compensation from the defendant. There is no possibility of jail or prison time, probation, or other sanctions. Monetary damages are the only potential gain for the victim’s loved ones.

Another major difference between a wrongful death civil lawsuit and a criminal case is that in a civil case, the defendant’s liability needs only to be proven “by a preponderance of the evidence,” compared to a criminal case in which it needs to be shown “beyond a reasonable doubt,” which is a much harder threshold to prove. Therefore, wrongful death cases in the civil realm may be successful even when a criminal case was not.

In a civil wrongful death case, a judge determines the outcome of the case as opposed to a jury in a criminal case.

The four key elements in a wrongful death case include the following:

• Breach of Duty: In a wrongful death case, a breach of duty occurs when a duty in place was not carried out by the defendant. The failure to uphold this duty was a factor that resulted in the untimely death of the victim. To prove a breach of duty, the plaintiff must prove that there was, in fact, a duty in place that the defendant failed to uphold. For example, let’s say a worker was using equipment that hadn’t been inspected by the deemed inspection date and died because of a malfunction. It was the employer’s duty to uphold safety protocols, and therefore, there was a breach in duty. Distracted driving is another common breach of duty. If someone was texting and driving when they hit a pedestrian, they failed to uphold safe driving practices and therefore breached their duty as a driver.
• Causation: In order to win a wrongful death case, a plaintiff must prove that the defendant’s breach of duty directly caused the wrongful death. For example, let’s say the inspection of the machinery in the previous example had no real bearing on why the machine malfunctioned. Maybe the machine was used improperly. Maybe the operator of the machinery was distracted. In this scenario, causation would be more difficult to prove because there were other factors that contributed to the death. It’s necessary to prove that the negligence of the defendant did indeed cause the death of decedent
• Damages: In a wrongful death suit where both a breach of duty and causation are proven, it is also necessary for the plaintiff to demonstrate the damages suffered. Of course, when someone dies, the damages are very evident. However, there are additional damages that must be considered in the suit. Some examples of wrongful death damages include funeral and burial costs, medical expenses the decedent accumulated before they passed, loss of income and potential earnings for the decedent, and the pain and suffering of the victim before the death.
• Negligence: Similar to causation and breach of duty, in a wrongful death suit, it is necessary that the defendant prove that the plaintiff’s loved one was killed in part or in whole due to the carelessness, recklessness, or negligent actions of the defendant. Negligence is the umbrella term for any preventable action or inaction that may have contributed to the untimely death.

Not all untimely deaths are considered wrongful. In order for there to be a basis for a wrongful death claim, the death needs to be the result of a negligent action or inaction by a person or party.

Unintentional injury is one of the leading causes of death in the United States. Accidental poisoning, falls, and car accidents make up the largest percentages of wrongful deaths.

Other commonly seen wrongful death cases include medical malpractice, workplace accidents, defective products or machinery, and premises liability (injuries at home or on private property). In some cases, wrongful deaths can be the result of a crime or premeditated attack.

Wrongful death settlements occur when the plaintiff is paid by the defendant’s insurance company. The lawyer receives the check, deducts their agreed upon fees, and gives the remaining balance to the plaintiffs in the case. The funds are paid directly to the plaintiff and are not given over to the deceased’s estate.

When a plaintiff wins a wrongful death case, they are not required to pay estate, income, or inheritance tax on the amount.

The total amount in a wrongful death suit is first calculated by determining the monetary damages associated with the death of the loved one. This can include funeral and burial costs, loss of potential earnings, medical expenses, etc. Once the damages are assessed, they will serve as the basis for the total amount. Next, the wrongful death lawyer and the at-fault party’s insurer will use the per diem or multiplier method to reach the final figure.

The death of a loved one is devastating. If considering a wrongful death suit, it’s crucial that you contact a lawyer as soon as possible for assistance and guidance during this difficult time. The lawyers at The Law Office of Scott R. Herndon focus on wrongful death suits in the San Francisco Bay Area. Their team of experts work to ensure that their clients receive the maximum compensation they are entitled to.

Call (415) 360-5477 or contact us online to request a free consultation with an attorney who will fight for you