The questions on this page were answered by our team of lawyers. The questions are categorized by practice area such as car wrecks, medical malpractice, traumatic brain injuries, etc. If you have specific questions about your situation, contact our firm to set up a free consultation with an actual attorney.
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Can a victim’s family sue because of past negligence?
Although there is a statute of limitations as to how long a family has to file a wrongful death lawsuit, there are some cases where they may be able to pursue for past negligence. For example, our firm has represented the families of many retired railroad workers who developed mesothelioma. This is a type of lung cancer that is a result of working with asbestos. Although the exposure happened years ago, the courts have said that railroad companies can be held liable for the victims’ illness and subsequent death.
What type of negligence must be present in a wrongful death lawsuit?
Wrongful death may have occurred through either intentional negligence or unintentional negligence. For example, if a driver was distracted and that resulted in the death of a pedestrian, that would be considered unintentional negligence, yet the victim’s family could file a wrongful death lawsuit against the driver.
How does recklessness affect wrongful death claims?
Reckless behavior that leads to another person’s death can make the reckless individual or organization liable for paying punitive damages to the deceased victim’s family. Punitive damages are noncriminal fines awarded as part of a civil lawsuit judgment. They must be paid in addition to any economic compensation and noneconomic damages like those for pain and suffering that get awarded to the family.
In North Carolina, punitive damages can be awarded following a wrongful death from a drunk or drugged driving accident. Punitive damages can also be sought in medical malpractice cases and in cases arising from dangerous and defective products. Driving under the influence is assumed to be reckless because a person who is not fully in control of his or her own body cannot be expected to control a car or truck. In medical malpractice and dangerous or defective products cases, punitive damages are due when a person or organization knew that deadly risks existed but intentionally did nothing to remove or mitigate those risks.
What happens if my family already filed personal injury claims but our loved one dies?
Under the laws of North Carolina, any situation that entitles a person or family to file personal injury insurance claims or civil lawsuits will also provide grounds for taking legal actions for a wrongful death. When a person who became incapacitated following an accident later dies from his or her injuries, a North Carolina personal injury lawyer can file paperwork to change personal injury claims to claims for a wrongful death.
A person or organization found liable for taking a life can often owe more in compensation and damages because the surviving family can ask for money to make up for loss of companionship and support in addition to the deceased individual’s medical bills, lost wages and pain and suffering.
How does North Carolina law define ‘wrongful death’?
Section 28A-18-2 of the North Carolina General Statutes states,
When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages therefor, the person or corporation that would have been so liable, and the personal representatives or collectors of the person or corporation that would have been so liable, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony.
To put that in plain language, a wrongful death occurs when a person or organization acts negligently, recklessly or criminally and kills someone else. Such a wrongful death gives the family of the deceased individual legal rights to seek monetary compensation and damages from the responsible party.
In light of the statutory language, a wrongful death in North Carolina can result from a traffic accident, medical malpractice, defective products, dangerous drugs, unsafe building practices, failures to protect customers and visitors, and assaults.
What is the North Carolina wrongful death statute of limitations?
The statute of limitations for wrongful death claims in North Carolina is 2 years from the death of the decedent. (NC Gen. Stat. § 1-53). For claims involving wrongful death, or death at the hands of another due to misconduct or negligence, a civil lawsuit to recover damages must be brought within 2 years after the death occurs. If claims are not brought within their statute of limitations period they will be time barred by the court. If a loved one has passed and you believe a wrongful death claim is appropriate it is important to contact a law firm like this one that has successfully tried wrongful death cases in the past as soon as possible.
How does a court calculate loss of comfort, sorrow, mental anguish and solace in a wrongful death claim?
When someone you love dies in a serious accident, it is never possible to fully replace the loss. However, our justice system tries to provide some semblance of justice through a wrongful death suit. A successful wrongful death case tries to make amends for the loss by awarding an amount of money that is "fair and just." It is virtually impossible to precisely calculate how much sorrow or mental anguish a survivor experiences. The facts of each case will influence the amount that is determined to be fair and just. For example, the nature of the relationship in the family is taken into account. In addition, the length of marriage and the kinds of love, help and support your spouse gave you are important considerations.
What if a victim dies before their case is hard by a court?
A wrongful death claim usually stems from the victim's death from an accident and is brought on behalf of a relative or loved one.
For example, say someone is married with three children and becomes injured in a serious truck accident caused by the negligence of a trucker. If the victim is hospitalized and sues the person at fault, but before the victim's case is heard, they die from the injuries sustained in the truck wreck. The victim's spouse may proceed with the claim, after getting qualified as the personal representative of the estate, as a wrongful death matter against the person at fault.
You also need to be aware of the "survival statute" which preserves a victim's cause of action against an at-fault individual after the victim passes away from some cause other than the accident. This enables the estate to take over the victim's cause of action against the at-fault party. The damages available in a survival action include all the damages for the injury that are available to the actual victim if the individual survived.
What exactly is a wrongful death claim?
A wrongful death claim can be filed when the victim was killed as a result of negligence, or another type of unjust action by an individual or entity being sued, and the victim's survivors are entitled to damages as a result of the improper conduct/negligence.
Basically, a wrongful death claim is just a negligence lawsuit in which an individual died as the result from an injury.
Are the laws or rules applying to a wrongful death claim different from a personal injury not involving death?
Yes, there are many different laws that apply in each state. Most such cases arise under state laws (but some federal laws set forth the rules/laws) and each state provides evidence laws on the types of losses/damages that can even be recovered in a wrongful death lawsuit (caused by negligence, carelessness, or violation of a relevant statute/regulation). The state limitation period to even file a wrongful death suit is sometimes different than the statute of limitations for a personal injury suit. Also, many states have laws on who can file the suit for the deceased person. We highly recommend you obtain a free consultation very early on to protect your family. Please review case results on this site, but better yet call us immediately for a free consultation.