If someone you love has been killed in either an accident or in an act of malice, there is a strong probability that you could be entitled to collect on a wrongful death lawsuit. In order to determine whether or not you have a case, you need a lawyer.
If you have any doubt as to whether you really have a case, keep reading. The information that follows will help you determine some of the simpler details that you can then use to build your case with the help of qualified legal counsel. We hope that what follows will motivate you to take action and do so with the right legal representation.
Civil vs. Criminal Action
It is important to understand the difference between civil and criminal penalties in cases of wrongful death. If the deceased was the victim of an accident (a car accident, a work-related accident, or other circumstance where negligence – not malice – caused their death), you need to bring civil action to determine liability and collect.
If the deceased was the victim of murder or some other voluntary, malicious action that caused his or her death, criminal charges will likely be pressed. You might be called in as a witness but will not typically have any real say in the outcome of the case. Criminal cases are based on the concept of reasonable doubt (the likelihood that the defendant did or did not commit the crime). Civil cases are decided based on preponderance of evidence. If the scales tip just slightly in favor of either party, that party wins.
Lastly, criminal cases carry penalties that include fines, community serivce, incarceration, capital punishment, etc. Civil cases are decided on the basis of compensation. In a vast majority of cases, a wrongful death action is civil. You can, however, bring civil action against a defendant who is also being tried as a criminal. It is also possible to win a civil suit for wrongful death against a criminal defendant even if he or she is found not guilty in criminal court.
The Four Elements of a Wrongful Death Case
Wrongful death cases revolve around four key elements in most states. These include:
Negligence – the accident and resulting death were the fault of the reckless, careless, or negligent actions of a specific person or entity
Breach of Duty of Care – the specific type of negligence that led to the accident, including failing to follow safety guidelines in a workplace or failing to operate a motor vehicle safely and defensively
Causation – proof that negligent or malicious action led to the wrongful death of an individual
Damages – the monetary and emotional impact the loss has had on surviving family and dependents
All four of the above elements need to be proven by a preponderance of evidence if the lawsuit is to be successful. A reputable attorney will examine your case for free and will not proceed if he or she believes that any of the above cannot be satisfied in court.
Common Arguments for Liability
While many jurisdictions separate the two, wrongful death and personal injury law are closely related. In some cases, seasoned personal injury lawyers are the best and most qualified attorneys to represent you in a wrongful death case. Many of the details and fact-gathering methods are identical between the two.
In some cases, plaintiffs have been known to file both personal injury and wrongful death lawsuits against the same defendant, but some state laws have built in protections to limit or prohibit the practice. Upon reviewing your case, your own wrongful death attorney can advise you on the best course of action when filing a civil wrongful death case.
Some common defendants in wrongful death cases include:
The victim’s employer – failing to uphold and maintain a safe work environment, failing to maintain work vehicles, etc.
Property owners – lack of adequate warnings of potential hazards, failing to repair known hazards, etc.
Individuals – distracted or careless drivers, carless co-workers, those who act with intent to cause harm, etc.
If, after reading all of the above, you believe that even a few of the details apply to your case, you owe it to yourself, your family, and the loved one that you have lost to take swift action on your case.
The law places limits on the amount of time you have to bring a case of wrongful death and those timeframes vary between states. Do not hesitate to call a trustworthy wrongful death attorney right now and have your case evaluated for free. Call Fenster & Cohen today (954) 473-1500