This page describes CA’s wrongful death law. Our goal with this page to give grieving family members some basic information about the legal ramifications of losing a child, spouse, parent, or grandparent. This page was written by Sean Reis, a wrongful death attorney. But reading this page is not a substitute for speaking with a lawyer. If you’ve lost a loved one, we highly encourage you to contact an experienced wrongful death attorney for a consultation.
This page answers the following questions:
- Who can bring a wrongful death claim?
- What you should you do after the accident or incident?
- What can a wrongful death attorney do for victim’s families?
- How long do you have to file a wrongful death claim?
- What is a survival action?
- What is the difference between wrongful death and murder?
- Statistics and figures concerning accidental deaths
Who Can Bring a Wrongful Death Claim?
Losing a loved one can have devastating effects on survivors. California’s Code of Civil Procedure outlines the individuals that may bring a claim for the death of a person caused by a wrongful act or neglect. They are as follows:
- The spouse of the victim
- The children of the victim
- The children of any deceased children of the victim
- The person(s) that would have inherited from the victim if they died without a will
- The spouse of a void or voidable marriage if the spouse believed the marriage to still be valid and dependent on the victim
- The stepchildren of the victim if they were dependent on the victim
- The victim’s parents if they were dependent on the victim
- Any minor that had resided for the previous 180 days in the victim’s household and was dependent on the victim for one-half or more of their support.
What Should I do After an Accident Resulting in a Death?
If you are a family member or friend of a victim, the first thing you should do after the accident, after taking care of any immediate medical needs, is to document and save everything. Take detailed pictures of the accident site, any damaged property, and, if it was a product that caused the death, pictures of the product.
If you are the owner of any of the property, do not dispose of it. Preservation of evidence can be key to your trial. Be sure to obtain the contact information of any witnesses to the accident. Finally, keep all medical examinations and expenses as these will help your wrongful death attorney explore all avenues of your legal claim.
What Can a Wrongful Death Attorney do for Me?
While basic accidents are legally complicated, the accidental death of a loved one is an extremely delicate legal situation. Sean Reis cautions people before they try to handle these situation without experienced help. For instance, the number of individuals who may be able to file a wrongful death claim may be numerous. In this case, your wrongful death attorney may best decide if it is in everyone’s interest to set up a probate estate and proceed.
Furthermore, there are various types of damages that may be available, both economical and non-economical. The value of the economic damages will take into account the victim’s health, age, income, occupation, other factors that are indicative of the type of life they would have lived, value of household services, and funeral and burial expenses.
Non-economic damages are not as easy to calculate and can include any care the victim provided to others, training or assistance they were providing, or the loss of intimacy from a spouse. What cannot be considered in this compensation is the grief or sorrow of the plaintiff making the claim, any pain and suffering the victim endured (exceptions may apply), or the poverty or wealth of the plaintiff. An experienced accidental death attorney will be able to articulate your damages far better than you can.
Your wrongful death attorney will objectively look at all angles of your claim. He will compassionately inform you of the best way to proceed.
How Long Do I Have to File My Wrongful Death Claim?
Like many other personal injury claims, the statute of limitations for wrongful death is two years. Code of Civil Procedure § 335.1. After the loss of a loved one it is very easy to lose sight of this time limit given the enormous emotional toll of losing a loved one. For that reason, you should contact a wrongful death attorney soon after the accident so he can ensure your rights are protected throughout the grieving process.
I Have Heard the Term “Survival Action” Tossed Around. What is that?
Generally speaking, if a person files a claim and passes away before the claim is resolved there is no longer a controversy at hand and the court considers matter moot. California Code of Civil Procedure § 377.30 allows for a cause of action to survive the death of the person who brought the action and passes it along to the deceased’s successor in interest (see below under “Who Can Bring a Claim.”).
If your loved one survived even a short amount of time between the accident and their eventual passing, a survival action allows for you to take over and sustain any claims your loved one may have had if they had survived such as lost wages, medical expenses, and penalties, such as punitive or exemplary damages. If this situation sounds like it may apply to you and your loved ones, you should contact a wrongful death attorney to see if you should file a survival action.
What is the Difference Between Wrongful Death and Murder?
First and foremost, a wrongful death claim is a civil lawsuit usually brought by the family members or estate of the deceased individual. Murder is a criminal lawsuit that is brought by the District Attorney’s office. It is possible that a both lawsuits may be brought over the same series of events and the judgment in one need not necessarily be the judgment in the other.
A famous example of differing judgments is O.J. Simpson. Mr. Simpson was acquitted of his murder charge, but lost his wrongful death civil trial to the tune of $33.5 million dollars. So, in summary, most murder trials have the possibility of leading to a wrongful death suit, but not all wrongful death suits can lead to a murder trial.
Wrongful Death Statistics, Facts & Figures
According to the Centers for Disease Control 2013 data, there are 130,000 unintentional deaths each year in the United States. That was the 4th leading cause of death in the United States in 2013. Of that number, 33,804 were traffic fatalities, 30,208 were fall deaths, and 38,851 were unintentional poisoning deaths. According to the National Highway Traffic Safety Administration, 32,675 people died on American roadways in 2014. To bring it close to home, in 2013, a total of 3,104 people were killed on California streets. While accidents are a part of life, many of these accidents are the legal fault of another person.
That amounts to a lot of emotional and financial damage to many families across the country. Wrongful death claims may also apply to the manufacturers of products if a defect in that product lead to your loved one’s unfortunate and untimely passing. If you have lost a loved one due to the wrongful, negligent or reckless actions of another, you should contact a wrongful death attorney to help alleviate the pain and suffering.
Free Consultation & Contingency Fee
Our San Diego personal injury attorney offers everyone a free consultation. If your case is accepted, our wrongful death attorney will be compensated via a contingency fee; that is a percentage of what the lawyer recovers for your claim. You do not pay legal fees out of pocket. Moreover, if your case is accepted, your counsel will front the costs of the case on your behalf. He will recover these costs at the end of the case when it settles or there is a trial verdict in your favor. Our lawyer provides hope for family and friends who have lost a loved one.