Building Your Case

When a loved one dies out of ordinary circumstances is devastating enough. It is even worse when this person dies due to wrongful acts of another person. When another person is responsible for the tragedy of losing a loved one, the law allows for financial recovery for the loss suffered. However, getting compensation for wrongful death is not as easy as believing a person is responsible, and you qualify for compensation. In getting awarded for the loss, there are procedures to be followed as well as proving the said party is responsible for the death of your loved one. In showing wrongful death, the law expects you to determine some aspects as concerns the claim of wrongful death. For this reason and many others, you need to have a lawyer to help with the court process and get your compensation. At Orange County Personal Injury Attorney, we have years of experience in helping our clients get their rightful compensation.

Proving Wrongful Death

As earlier stated, to prove wrongful death, there must be facts showing particular legal elements to be true. The state of California expects to prove that the death was due to a wrongful act of another person. Your evidence must be sufficient to satisfy the legally expected burden of proof.

The evidence you produce in support of a wrongful death claim is what is referred to as the burden of proof. This evidence must be substantial to convince the jury or the judge that wrongful death happened. Fortunately, one does not need to prove beyond doubt that wrongful death occurred. However, you are expected to show that at least there was a 51% chance the demise of your loved one was wrongful. Proving this is what is known as preponderance of the evidence.

For a regular person without a legal background, the terms used may be difficult to understand, but having an experienced attorney will help with the case. Your lawyer that understands the wrongful death claims will help you prove the following elements as expected by the law.

Proving Negligence Sufficiently

When the death of your loved one was as a result of another person’s negligence, just like many other deaths, you are entitled to compensation. However, you must prove the other party was negligent in their actions by determining the various elements or facts of negligence. The elements of negligence are:

• The person accused of negligence owed the victim a duty of care

• The accused person breached or violated the duty of care

• The violation resulted in an accident where the victim sustained injuries resulting in death and

• Your family and yourself suffered losses due to the death

Based on the kind of accident, the duty of care owed to the victim varies. Below, we discuss some duties of care a victim may have been owed and how the defendant can breach them:

• A driver must at all times exercise a duty of care that requires safe driving considering the various road conditions and the weather. A driver can violate this duty of care if he or she is distracted while driving, intoxicated, and aggressive or is in violation of traffic rules, among other reckless acts.

• Companies have a duty or an obligation to produce and sell safe products to consumers, and if there are possible risks to the product, they must warn them. Providing defective products and failing to warn your potential customers of the dangers associated violates the duty of care.

• A medical practitioner is required to exercise a duty of care as would their colleagues in similar circumstances. If their actions are below the expected standards, and they make mistakes, they violate their duty of care to the patient.

• If one owns a property, he or she is expected to keep it free of any conditions that would be described as dangerous. An owner that is aware of a hazardous condition on their property must fix it and even warn others of the potential danger. If it is not fixed, and as a result, a person is injured, the property owner violated their duty of care.

With the help of your lawyer, you can establish a violation of the duty of care, which amounts to negligence. Once this is done, you must show that this breach is what leads to the victim sustaining injuries. And the injuries resulted in their death.

How to Prove Intentional Harm

Sometimes, wrongful death is not due to negligence but from purposeful violence. If your loved one met their death due to violence against them, you must show the actions were intentional. This is also a crucial part of preparing for your case. Some of the elements that you must prove are:

• The defendant had the intention of committing the act

• The defendant unlawfully got into contact with the deceased either by hitting them with a weapon or a car and

• As a result of the unlawful contact, your loved one suffered a fatality

In most cases, death from violence is handled as a criminal offense of manslaughter or murder, which is separate from that of wrongful death. Fortunately, with a skilled lawyer, he or she can use the criminal case against the defendant to increase your probability of getting compensated for the wrongful death.

Establishing or Proving Damages

Once you have been able to show that the negligence or wrongful actions by the defendant were the reason for the wrongful death, next, you need to show the damages suffered because of it. The courts in California have, however, believed that emotional distress damages should not be recovered from a wrongful death suit.

Despite that, in most cases, an individual claiming the wrongful death of their loved one may claim the defendant negligently and intentionally inflicted emotional distress on them.

There are various damages one can seek in a wrongful death claim as permitted by the law in California. Some of the common ones are:

• Burial and Funeral costs of the deceased

• Lost future earnings for the victim

• Lost financial support from the victim

• Lost household services by the victim

• Lost companionship, love, care, comfort, protection, affection, and support

Unfortunately, determining these damages can be challenging and calls for an expert to help in this. For instance, in seeking lost future earnings, various factors will be taken into consideration. Life expectancy, possible career advancement, education, skills, inflation, and the person’s abilities are some of these factors.

During the negotiations for settlement or trial, there must be a presentation of significant evidence to support these claims. Your lawyer must hire an expert to analyze all these factors that will help in coming to the figure to claim. Without this, it may be challenging to get your rightful claim.

Who is Permitted to Get Compensated for Wrongful Death

Not everyone is entitled to get financial compensation for the wrongful death of a loved one. According to the code of Civil Procedure 377.6 of California, family members or individuals appointed by them are the only ones that can sue for wrongful death. These members include:

• The victim's spouse if any

• Registered domestic partner to the victim

• The children of the deceased victim

• Grandchildren if the children of the children of the dead victim are also gone

• Other children like stepchildren who dependent on the victim for financial support of up to 50% or more

• Any person that is legally entitled to the property of the deceased based on the intestate succession laws.

The Kind of Actions that Support a Wrongful Death Claim

Any activity that may result in the wrongful death of a person can be used to support a claim. As earlier discussed, wrongful death can be a result of gross negligence or ordinary negligence, purposeful wrong acts, and recklessness of a defendant. Some of the wrongful acts that can result in wrongful death include:

• Car accidents – road accidents are common in our roads due to various reasons such as negligent, reckless, or distracted drivers. Some motorists may also be intoxicated while operating their cars. When an accident happens on the road, the victims of the accident are entitled to compensation. When your loved one is involved in an accident where they sustain injuries that cause death, the at-fault driver is held liable for the loss of the victim. For this reason, their insurance provider will pay the family of the deceased for life lost.

• Pedestrian knock-downs – a motorist in California is expected to exercise the duty of care to pedestrians. This means you must be on the lookout to avoid hitting pedestrians or any other road users. When the victim was a pedestrian, you must also show how the defendant was responsible for their death by their actions.

• Slip-and-fall accidents – this is common in properties where the owners do not practice the duty of care. If a place is slippery or there is a danger of a person slipping and injuring themselves, there must be a clear warning of the same.

• Battery and assault – your loved one can be involved in an altercation with another person that may end up in an assault or battery leading to their death

• Manslaughter or murder – when your loved one was hurt by another person while fighting or intentionally, criminal proceedings will be brought up against the other party. However, even with the criminal proceedings, you can sue for the wrongful death of your loved one by the defendant.

• Neglect or elder abuse – in some extreme cases, a person’s abuse against an older adult or their neglect can result in their death. For instance, if you are the caregiver and you intentionally refuse to give them their medication or food or take them to the hospital when needed, this is abuse. If the abuse against the elderly results in their death, their surviving family can sue the caregiver for the wrongful death.

• Neglect or child abuse – similar to the abuse of the elderly, a caregiver or a person tasked with taking care of a minor can abuse them or be negligent in their duty. If this happens and the child suffers injuries that result in their death, their parents or other family members can sue for their wrongful death.

• Medical malpractice – a loved one can die when the wrong procedure is performed on them, or they are given the wrong medication. If this is the case and taking into account proving all the elements of wrongful death in medical malpractice, you can sue the parties involved. These may include the hospital, doctors, or other necessary parties for the wrongful death of your loved one.

Recoverable Damages in Wrongful Death Claims

Damages recovered for wrongful death are designed to compensate the family for the lost support they may have received from the victim if they were alive. The damages recovered are both economic and non-economic ones. The damages recoverable are also affected by:

• The life expectancy of the victim at the time of their death

• The plaintiff’s life expectancy at the time of wrongful death

Life expectancy is based on facts. The jury takes into account various factors such as the health of the deceased, their age, occupation, and lifestyle. If the deceased was living carelessly and in poor health, their life expectancy is lower, meaning the damages to recover will also be less. The income from their occupation matters. Compensation is often based on the income the person was able to get and not on an assumed figure

The plaintiff’s life expectancy is also taken into consideration. For instance, if the deceased had a young family that depended on him. Or if the children were grown and independent. All these are essential factors that are taken into account when coming up with the damages to award.

Economic Damages

When one sues for wrongful death, they are seeking financial compensation for what the victim may have handled. Some of the damages may include:

• Being compensated for the financial contribution the deceased person would have made to their family if they never met wrongful death

• Medical expenses if the deceased before their death sought medical care for the injuries sustained

• The lost benefits or gifts their dependants such as children would have received from them

• The expenses associated with the funeral arrangements and burial of the deceased

• The services the deceased would have contributed to the house.

Non-Economic Damages

Non-economic damages are not quantifiable, meaning they are not always supported by physical evidence to show their monetary value. Some of the damages will include:

• Companionship and society – The deceased person, gave friendship, love, and companionship and was a contributor to society. Their loss will mean those that enjoyed his or her company, friendship, romance, and companionship are denied it because of death.

• Protection – This is a benefit that cannot be quantified. The deceased was a source of security to his/her family, and with his death, his spouse or children will feel vulnerable

• Affection – When a person dies, the warmth they gave to their loved ones dies with them. For this reason, his family is compensated for the lost affection of the deceased.

• Moral support – We all require people that will support us in all that we do. When a parent is alive, he or she will offer moral support to their children. When they are taken from us, we will miss their support and guidance. This aspect is also compensated as non-economic damage.

• Sexual relations – If the deceased was married, he or she was engaged in sexual relations with their spouse. When the person is wrongfully killed, it means that the surviving spouse is denied their sexual relationships and should be compensated for the same.

Getting Punitive Damages as an Heir

If you are an heir to the deceased and are suing to get compensation for their wrongful death, you are not entitled to get punitive damages based on the law. However, the victim can be killed because of felony homicide, and the defendant was found guilty of the crime, an heir can seek punitive damages in this case.

A survival action, however, can avail punitive damages to the descendants of the victim of wrongful death.

Differentiating Wrongful Death and Survival Action

When filing for a wrongful death suit in California, it is common for it to be combined with a survival action. When suing for wrongful death, the surviving family is usually seeking to be compensated for the loss suffered because of the death of their loved one. A survival suit is to ensure the heirs seek compensation on behalf of the estate.

When a lawsuit to compensate the estate of the deceased, it involves getting compensated for two kinds of losses:

• Other claims not related to the victim’s death and the deceased person had a right to sue for them before he or she died

• Damages for the injuries that resulted in death. As long as the dead person had survived the injuries for some time.

Despite the complexity of survival actions, they, however, allow the heirs to the deceased to get punitive damages as opposed to wrongful death suits.

Statute of Limitations

According to the statute of limitations in California, the surviving family has only two years to sue for wrongful death or survival action. When suing for wrongful death, the state counts the time to begin from the date the deceased died.

In a survival action, however, the estate of the deceased has two years to sue from the time the injury occurred or six months from the time the victim died.

Pursuing a Claim in Wrongful Death

After understanding the individuals allowed by the law to pursue wrongful death claims and preparing all the evidence as earlier discussed, it is time to pursue your claim.

A lawyer will always tell you not to engage the insurance company directly. Because you have a lawyer that has helped you prepare all the necessary evidence and assured you that you qualify to seek compensation, it is now time to pursue your damages.

Insurance companies sometimes are not genuine or transparent. However, an experienced lawyer understands all the tricks used and how to maneuver through them. The goal of the insurance company is to ensure they maximize their profits by making the least payments as they possibly can.

Your attorney will get in touch with the insurance company with all the evidence discussed earlier. The claim is also accompanied by all the necessary documents that act to support your claim. Some of the documents your lawyer will ensure to have in place include:

• Witness statement – a person that witnessed the accident that resulted in injuries or death of the victim is crucial. This statement is best if it is written down and signed by the witness. You should also ensure to have the contacts of the witness should they be needed to testify.

• Police report – in most accidents and incidents where death happens, the police must report what happened. In the case of a road accident, the police will give a detailed report of their findings. They will include the state of the drivers, such as intoxication, the nature of the accident, and the vehicles involved. The police report will also include the probable cause of the accident based on the evidence found at the scene, among other things.

• Photos – pictures of the accident scene are relevant in showing who was responsible for the accident. Photos of the injuries the victim sustained are also crucial in supporting your case. When you are preparing for your wrongful death case, you must ensure anything that supports your claim is available. If you can have videos of the accident scene, it can also be helpful. The police are allowed to share the evidence from the accident scene with your lawyer. Let the pictures and videos from the police also accompany the claim.

• Medical Report and coroner’s report – if the victim sustained injuries that took him or her to the hospital, a detailed report on the same is necessary as evidence in your claim. The medical procedures and medication used to treat the victim must be included in the report. After the victim dies, a coroner’s report must accompany the claim. This report indicates what caused the death of the victim. If the victim succumbed to the injuries sustained, the report must clearly show this.

With all the evidence prepared and a claim launched, the insurance company will analyze the claim and decide whether to award for the damages as asked, decline, or give another offer. If through the negotiations with your lawyer, they do not agree, your lawyer can institute a lawsuit against them.

The same evidence gathered in preparation for the case is used in court to convince the jury of your right to receive the damages asked. The jury will evaluate the evidence provided, and upon the conclusion of the case, they will give their verdict on what amount of compensation you should be awarded.

Find a Personal Injury Lawyer Near Me

The death of a loved one can be tragic and painful to their loved ones. Although financial compensation will not give life to your loved one, it, however, helps make life bearable in their absence. Pursuing a wrongful death claim can be emotional and complicated for the family. This makes it necessary to hire a lawyer to help you with your claim. At Orange County Personal Injury Attorney, we have experience in pursuing wrongful injury claims with great success. Call us at 714-876-1959, and let us pursue your claim.