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What You Must Know About Wrongful Death Lawsuits in North Carolina

If you are reading this article, you likely lost a family member due to an accident. Please accept our condolences and know that we understand that you would prefer to be focusing on matters other than insurance claims and civil lawsuits.

North Carolina does, however, give survivors the right to take legal action on behalf of their loved one to hold accountable the person or company that caused the death. As wrongful death attorneys, my law firm colleagues and I make it a mission to advise and represent families as they navigate the claims process.

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Allow us to answer a few of your initial questions. We offer free consultations, so do not hesitate to contact us to learn more.

The Right to File a Lawsuits Arises From Another Party’s Negligence or Recklessness

The first thing to know is that a wrongful death claim can only succeed when evidence shows that the person or organization named as the defendant (“respondent” in civil law speak) caused the loss of life by acting negligently or recklessly.

As a matter of law and legal precedent, negligence is defined as “A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.” This definition also extends to failing to act to prevent harm when one has a legal duty to do so.

Examples of negligence that can support a wrongful death claim are running a red light while driving, administering the wrong medication in a hospital, or failing to warn about or remove harmful materials in consumer products.

Recklessness has a less-specific legal definition. Generally, a person or a company is deemed to have acted recklessly when they did something without considering or caring about how their action could harm a person. Driving while drunk and continuing to make and sell a recalled product are both considered reckless.

Causes of Wrongful Deaths

Succeeding with a wrongful death claim also requires proving that a negligent or reckless act directly caused the loss of life. Meeting this requirement can be fairly easy, as when the defendant in a wrongful death lawsuit indisputably crossed the center line of a highway and hit the plaintiff’s car head-on.

Establishing a link between an untimely death and the use of a potentially harmful product or an alleged act of medical malpractice is usually quite difficult. This is one of the reasons to hire an experienced wrongful death attorney who can bring in expert witnesses.

Claims for a wrongful death can be filed after each of the following events:

  • Car, truck, motorcycle, bicycle or other vehicle crashes
  • Boat and personal watercraft crashes
  • Medical errors, including misdiagnoses, surgical errors and medication errors
  • Nursing home neglect
  • Slips and falls
  • Drownings
  • Electrocutions
  • Dog attacks
  • Use of a dangerous or defective product
  • Development of occupational illnesses, such as cancer, COPD or mesothelioma from working on and around trains
  • Workplace accidents when the claim is filed against a negligent third party such as a tool manufacturer

Who Files a Wrongful Death Claim

A personal representative of the deceased individual must file the claim. This is usually a parent, spouse or adult child, but another family member or estate executor can fill the role.

Naming the personal representative should be done with care because this individual will act as the plaintiff. They may be expected to provide depositions before a trial or settlement, and they may be asked to testify in court. Additionally, the personal representative handles paperwork related to the case.

Perhaps most importantly, section 28A-13-3(a)(23) of the North Carolina General Statutes states

It shall be the duty of the personal representative in distributing the proceeds of such settlement in any instance to take into consideration and to make a fair allocation to those claimants for funeral, burial, hospital and medical expenses which would have been payable from damages which might have been recovered had a wrongful death action gone to judgment in favor of the plaintiff.

All potential beneficiaries of a wrongful death settlement or jury award should know and trust the personal representative who acts on behalf of the plaintiff.

The Types of Monetary Damages That Can Be Claimed in a Wrongful Death Case

Depending on the facts of the case, all of the following types of recoveries may be available:

  • Reasonably expected loss of income from the victim
  • Reasonably expected loss of services, protection, care, and assistance the decedent provided to his or her beneficiaries (i.e. spouse, children, parents, etc.)
  • Medical expenses
  • Reasonable funeral expenses
  • Intangible costs such a sorrow, mental anguish, loss of consortium and loss of solace
  • Punitive damages when the death was due to reckless behavior on the part of the defendant.

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The Wrongful Death Claims Process

A wrongful death lawsuit filed in a North Carolina court must be brought by a personal representative of the victim. The personal representative can be the executor of the victim’s estate. If the person killed by negligence of a third party had a will, there will likely be a provision indicating who the executor shall be.

If the victim of an accidental death did not have a will, or fails to name an executor in the will, then any family member who is a beneficiary can qualify as the personal representative.  If no family member comes forward then a non-family member can qualify. 

Who Can Be the Personal Representatives in a North Carolina Wrongful Death Suit?

If the victim of the wrongful conduct appointed an executor or administrator in their will, then that person is automatically considered the personal representative. If the victim did not leave a written will, the court has the power to appoint a personal representative. Usually, the personal representative is a close friend or relative of the surviving family members who would be beneficiaries in a wrongful death suit.

What is the Role of the Personal Representative?

According to North Carolina statute § 28A-13-3(a)(23):

The personal representative has the responsibility of distributing the proceeds of any wrongful death settlement or jury verdict and must “take into consideration and to make a fair allocation to those claimants for funeral, burial, hospital and medical expenses which would have been payable from damages which might have been recovered had a wrongful death action gone to judgment in favor of the plaintiff.”

 

What if the victim was a minor?

If the victim was younger than 18 years of age, the administration will be granted first to the custodial parent.  If no parent applies within thirty days, then the process described above for adult victims is used to determine a personal representative.

Types of Damages You May Be Able to Pursue
Beneficiaries of the victim can pursue the following types of damages in a North Carolina wrongful death case:

  • Reasonably expected loss of income from the victim
  • Reasonably expected loss of services, protection, care, and assistance the decedent provided to his or her beneficiaries (i.e. spouse, children, parents, etc.)
  • Medical expenses
  • Reasonable funeral expenses
  • Intangible costs such a sorrow, mental anguish, and loss of solace

Establishing Negligence – A Key to Virtually Any Wrongful Death Case

To obtain the damages mentioned above through a North Carolina wrongful death case, we must prove negligence on the part of the at-fault individual or company. 

Negligence is defined as the "failure to use ordinary care."  Basically, this means that the at-fault person or company acted in a way that was different from the way an ordinary person or company would act.  It also means that the at-fault person or company failed to act when they had a responsibility to do so, and their lack of action caused the death of your loved one.

A common example is when a loved one was killed in a serious car crash. In order to establish negligence, we may need to show that the at-fault driver failed to follow established rules of the road such as speeding, texting while driving, running a red light or stop sign, or veering into oncoming traffic.

North Carolina wrongful death suits also involve negligent conduct related to faulty products, industrial accidents, railroads, medical malpractice, electrocution, boats/jet skis, unsafe premises and dangerous drugs/medical devices. 

 

Richard N. Shapiro
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Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia