A wrongful death is a death caused by another person without legal justification. Self-defense is an example of a legal justification for causing a death. Wrongful death cases can be based on intentional conduct (such as murder), but since most people are not insured for intentional acts and do not have resources to pay compensation, most wrongful death claims are based on negligent acts that cause a death.
To recover compensation for a wrongful death based on negligence, it is necessary to prove three things:
- The persons bringing the claim are entitled to participate in a wrongful death claim
- The death was caused by the defendant's negligent conduct
- The persons bringing the claimant suffered a loss for which compensation can be paid
Proof of those three factors will vary from state to state. The following information explains how those factors are proved in California.
Proving Entitlement to Bring a Wrongful Death Claim
The first step is to identify the relatives who are allowed to participate in a wrongful death claim. No matter how much other people might have loved the victim, only certain individuals are allowed to bring a California wrongful death claim.
Every state has its own rules about who can share in a wrongful death settlement. In California, the participants are limited to:
- The victim's spouse or registered domestic partner
- The victim's living children
- The children of any deceased child of the victim
- If the victim had no surviving children, siblings or other relatives who would have inherited from the victim if the victim had died without a will
- The victim's parents and stepchildren if they were dependent upon the victim for support
- Any minor who lived with the victim for more than 180 days prior to the victim's death and who depended on the victim for at least one-half of his or her support.
There can only be one claim; participants are not allowed to bring separate claims. Everyone who is eligible to participate in the claim should be notified that a wrongful death claim is being made so that they can share in the proceeds.
Keep in mind, however, that the victim also has a claim (known as a survivorship claim) for pain and suffering and financial losses between the time of the accident and the time of death. Anyone who is designated in the victim's will to receive a share of the victim's estate might benefit from a survivorship claim.
A California wrongful death attorney can help family members decide who should participate in a wrongful death claim and (unless the victim died instantly) in a survivorship claim.
Proving Responsibility for the Death
Most wrongful claims are based on proof that another person or business was negligent and that the negligent act caused the victim's death. Examples include:
- Careless driving that causes a car accident
- Leaving a loaded gun where a child can find it
- Leaving a swimming pool uncovered or unfenced
- Careless errors committed by a doctor
- Defective toys that cause a toddler to choke on small parts
In some cases, a police investigation of the death might provide necessary evidence of responsibility. In many cases, a wrongful death attorney will need to engage the services of a private investigator, an accident reconstruction engineer, or an expert witness to prove that the death was caused by another party's negligence.
Proof of Economic Losses
Participating relatives who depended on the victim for financial support are entitled to recover any economic loss caused by the death. An economic loss caused by a wrongful death is usually the loss of financial contributions to the family. A spouse, for example, has a community property interest in the victim's income. The loss of that income due to death causes a financial loss to the spouse.
Children have the right to be supported by a parent until they reach the age of majority. A wrongful death causes the victim's children to lose that financial support. Parents and stepchildren who actually received financial support from the victim also experience an economic loss due to the victim's death.
Economic losses are usually proved through records. A wrongful death lawyer will obtain tax returns and payroll records to determine how much income the victim was earning. An economist can then project the victim's future earnings to calculate the amount of financial loss a spouse or dependent will experience as a result of the victim's death.
Proof of Non Economic Loss
California law permits family members who can participate in a wrongful death claim to recover certain non economic losses, including:
- The loss of the victim's love, companionship, comfort, care, assistance, protection, affection, society, and moral support
- In the case of a spouse or domestic partner, the loss of the enjoyment of sexual relations with the victim.
- Primarily in the case of a child, the loss of the training and guidance that the victim would have provided.
To prove those losses, wrongful death lawyers interview the relatives who are participating in the claim to explore the nature of their relationship with the victim. While the people who are personally affected are usually the strongest witnesses, other relatives and friends who are not entitled to compensation can provide objective corroboration of the close relationship between the victim and his or her spouse and children.
Proving those losses can require hours of preparation for courtroom testimony. Fortunately, most wrongful death cases settle, but in many cases they do not settle until the insurance company lawyer has taken the deposition of each participant in the claim. A wrongful death lawyer will help those participants prove their claim by preparing them to give honest, effective, and powerful deposition testimony.