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Shakhnevich Law Group

Wrongful Death



Wrongful Death - Best Personal Injury Attorney, NY & NJ

A wrongful death claim refers to any type of case where the ultimate outcome is death. It must be proven, however, that the person died as a result of negligent or wrongful conduct of another. Thus, a wrongful death case may arise in any context including a car accident, a fall, an assault, or medical malpractice.


Under the law, a person’s claim survives his or her death. The court will appoint a personal representative to advance the case against all those responsible for the death. Usually, the representative is a member of the decedent’s immediate family; a spouse, son or daughter. There are instances where the person is not survived by family. In such cases, the court will follow a different procedure for appointing a representative. In any event, the case will continue following the injured person’s death. The law contains very specific technical requirements for commencing a wrongful death lawsuit. There are strict time limitations and the items of compensation may not be the same as that of a person who is alive.


It is important to note that a death may not occur immediately after an event. A person may be injured in an accident and may die from these injuries months or even years later. As long as the original claim (when the person was still alive) was filed timely, in New York and New Jersey, a personal representative may bring a wrongful death claim within 2 years of death. For instance, in a car accident case in New York, a person may bring a lawsuit within 3 years of the accident . If a person was severely injured in a car accident and dies from these injuries 2 years later, the personal representative has another 2 years to bring a wrongful death claim. The only condition, however, is that the original lawsuit from that car accident was filed within the permissible 3-year period from the date of the accident.


Case-In-Point: If a car accident occurred on January 10, 2015. The person injured in that accident may bring a lawsuit no later than January 10, 2018. Let us assume that this person died on June 19, 2017. Now, his or her personal representative has until June 19, 2019 to bring a wrongful death claim. However, the personal representative will have this right only if the decedent, while still being alive, filed a personal injury lawsuit no later than January 10, 2018, the permissible 3-year period for bring a car accident action.


Here are a few examples of frequently asked questions we encounter in our day-to-day practice:


When Is a Wrongful Death Claim Applicable?

A wrongful death claim can arise after situations in which a victim who would otherwise have a valid personal injury claim is killed as a result of the defendant's wrongful action. This can occur in a variety of situations, including:


When a victim is intentionally killed. For example, O.J. Simpson was sued in civil court for the wrongful deaths of Nicole Brown and Ronald Goldman. These civil lawsuits brought by the victims' families were separate from the state's criminal case against Simpson.


When a victim dies as a result of medical malpractice. If a doctor fails to diagnose a condition, or if the doctor is careless in the level of care provided, and a patient dies as a result, a wrongful death action might be possible against the doctor. (Learn more about when it's medical malpractice and when it isn't.)


Car accident fatalities involving negligence. If a victim dies as a result of car accident injuries, a wrongful death claim may be brought.


These are just a few examples of personal injury cases that can turn into wrongful death claims. A wrongful death claim can stem from almost any kind of personal injury situation, although one notable exception may exist for work injuries that result in death, which usually must be handled exclusively through the worker's compensation system.


What Must Be Proven?
  1. In order to hold the defendant liable in a wrongful death claim, the plaintiffs in the claim (usually through the estate of the deceased victim) must meet the same burden of proof that the victim would have had to meet had the victim lived. So, using negligence as an example, this means showing that the defendant owed the victim a duty of care, that the defendant breached this duty, that the breach of duty was a direct and proximate cause of the death, and that the death caused the damages that the plaintiff is trying to recover.


    Who Can File a Wrongful Death Claim?

    A wrongful death claim is usually filed by a representative of the estate of the deceased victim, on behalf of survivors who had a relationship with the victim. Exactly who those survivors can be varies from state to state.


    In all states, a spouse may bring a wrongful death action on behalf of his or her deceased spouse. Parents of minors may also bring a wrongful death action if one of their children is killed, and minors can collect compensation over the death of a parent. Where states start to disagree is whether parents of adult children can sue, whether adult children can sue for wrongful death of their parents, whether grown siblings can sue for wrongful death, or whether extended relatives like cousins, aunts, uncles, or grandparents can sue. Usually, the more distant the familial relationship is, the harder it will be to get a legal remedy via a wrongful death case.


    In some states, the romantic partner of the deceased may bring a wrongful death claim (marriage isn't a requirement, in other words), as can anyone who can show financial dependence on the deceased.


    Wrongful Death Damages

    Damages in a wrongful death claim—categories of losses for which a survivor might be able to receive compensation—include:


    • → the deceased person's pre-death "pain and suffering" (this is often called a "survival" claim).

    • → the medical treatment costs that the deceased victim incurred as a result of the injury prior to death

    • → funeral and burial costs

    • → loss of the deceased person's expected income

    • → loss of any inheritance as a result of the death

    • → value of the services that the deceased would have provided

    • → loss of care, guidance, and nurturing that the deceased would have provided

    • → loss of love and companionship, and

    • → loss of consortium.

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