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Wrongful Death and Survival Action/Claim

Posted by Lanre J. Abiola | Aug 26, 2023

A wrongful death action/claim is a suit brought by the decedent's spouse or representative to recover losses suffered by the spouse or representative because of the decedent's death, caused by someone else's negligent act. As such, the surviving family has the right to pursue compensation for those losses. The compensation can include loss of financial support and loss of consortium or companionship, which is the loss or impairment of the intangible benefits of a relationship.

When Does a Surviving Family Have the Right to File a Wrongful Death Action?

As a representative of the decedent's estate, a surviving family has a right to file a wrongful death action against a tortfeasor (the person whose negligent act caused the decedent's death). A wrongful death action includes damages resulting from personal injury and/or property damage. By working with a lawyer, a surviving family will prove several key elements. 

1. The Party that Caused the Decedent's Death Bore a Duty of Care to the Decedent at the Time of the Accident.

Generally, a "duty of care" is owed to all persons who may foreseeably be injured by the defendant's course of conduct. Put another way, a "duty of care" involves any circumstances where one party must exercise caution to help prevent injury to another. For example, employers often bear a duty of care to their employees by ensuring that they work in a safe environment. Similarly, drivers bear a duty of care to everyone who shares the road with them, including pedestrians, cyclists, and other motorists. 

2. The Party that Caused the Accident Breached the Duty of Care.

Breaching the duty of care is generally a violation of the duty of care, including any action that might potentially cause an injury or death to someone else. Actions that violate the duty of care depend on the circumstances surrounding an accident.

3. Breaching the Duty of Care Led to an Accident.

In most cases, someone can violate the duty of care without it leading to an accident. For you to show that you have grounds for a wrongful death claim, you must demonstrate that the opposing party's negligent conduct that killed the decedent injured you. If you are unable to demonstrate that the opposing party's negligent conduct led to the accident that injured you, you may not have grounds for a wrongful death claim.

4. The Liable Party's Negligent Conduct Killed your Loved One.

To prove a wrongful death claim, your attorney must show that your loved one died because of the liable party's negligent conduct. Sometimes, multiple factors may contribute to an accident that results in your loved one's death. In such a situation, your attorney will help determine the negligent party whose negligent conduct killed your loved one. 

Damages Included in a Wrongful Death Claim/Action

A wrongful death claim/action, while it cannot bring your loved one back to life, can offer damages (i.e., monetary compensation) for your injury due to the wrongful death of your loved one. 

1. Compensation for Your Loved One's Burial and Funeral Expenses.

After a loved one's sudden death, most families often find it difficult to cover burial and funeral expenses. Families of wrongful death suits can claim compensation for the funeral expenses. Remember that your burial and funeral expenses must be reasonable because throwing an elaborate funeral would be considered unreasonable by the court and/or jury. 

2. Compensation for the Loss of Your Loved One's Income.

Most families rely on two incomes to survive. As such, losing a loved one's income can be damaging for the decedent's family finances. As part of your wrongful death claim, you may have the right to claim compensation for the loss of your loved one's income. To calculate this, work with your attorney by including the income that the decedent made during the course of a year prior to his/her death. 

3. Compensation for the Loss of Services Performed for the Family.

Family members can perform any number of critical services for the family. For instance, the loss of services performed by the decedent may include any of the following: child care services, elder care services, housekeeping, house or vehicle repairs, yard maintenance and upkeep, and cooking for the family. Often, upon the decedent's death, the family may have to turn elsewhere for those essential services, including paying for those services. 

Thus, your lawyer should consider and include the cost to replace the services that the decedent regularly performs in your wrongful death claim.

4. Compensation for Loss of Consortium or Companionship.

Loss of consortium is the loss of the intangible benefits of a relationship. Compensation for loss of consortium includes all of the non-monetary benefits of a relationship. For example, compensation for loss of consortium for married couples includes emotional benefits a spouse may provide, such as companionship, comfort, affection, and love. Further, compensation for loss of consortium includes the physical benefits a spouse may provide, such as services (housework, cooking), shared activities (going on walks together), and sexual relationships. When any of these benefits are lost or their quality is reduced by a wrongful death or injury, it is considered a loss of consortium. 

Loss of consortium does not include the tangible financial benefits, such as wages or income. While financial dependents may recover from these losses, they are not typically included in a loss of consortium claim. 

The ability to sue for loss of consortium is governed separately by each state, and most states heavily restrict consortium claims. Generally, siblings, friends, and extended family typically have no right to recover from loss of consortium, even if they were very close to the decedent. 

In short, compensation for loss of consortium claims only apply to the following: a widow or widower whose spouse was wrongfully killed; and a wife or husband whose spouse was severely injured by a negligent party.

Who is Eligible to File a Wrongful Death Claim?

Typically, only the decedent's closest family members can file a wrongful death claim. If married at the time of death, the decedent's spouse can file a wrongful death claim. If unmarried at the time of death, the decedent's surviving children can file a wrongful death claim. In cases where the decedent was neither married nor had children at the time of death, the decedent's parents can file a wrongful death claim. 

To learn more about your wrongful death claim, contact Prestige Law Office, LLC. The firm handles personal injury for Wauwatosa, Pewaukee, Brookfield, Waukesha, Kenosha, Racine, Whitefish Bay, and the greater Milwaukee area. Contact the firm at 414-459-1632 to get started and to schedule a consultation.

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About the Author

Lanre J. Abiola

Mr. Lanre Abiola founded Prestige Law Office, LLC, in 2022 with the objective of providing individuals, entrepreneurs, and small and mid-sized businesses with high-quality, cost-effective legal services to achieve the best possible result for clients at a fair cost. Mr. Abiola believes in vigorous advocacy on clients' behalf.

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