Elements of a Wrongful Death Case | Shapiro, Washburn & Sharp

Succeeding with a wrongful death claim in Virginia requires proving each the following four facts:

  • The individual or organization named as the defendant caused the death,
  • A negligent or reckless act by the defendant led to the death,
  • People close to the person who died suffered emotional and psychological harm because of the person’s death, and
  • People close to the person who died suffered financial losses because of the person’s death.


State laws regarding filing and receiving compensation from a wrongful death lawsuit vary from state to state. In Virginia and North Carolina, for instance, a plaintiff has two years from the date of an alleged wrongful death to file a claim. This differs from Florida, where our personal injury and wrongful death attorneys have also taken cases. There, the wrongful death statute of limitations is 4 years.

Despite such variation, the four elements listed above must be present to succeed with a wrongful death lawsuit. Here is a little more information about each.

Stating Who Caused the Death

The driver who caused a fatal crash or the doctor who committed a deadly medical error can be named as the defendant in a wrongful death lawsuit. If the driver was behind the wheel of an 18-wheeler, the trucking company that employed them can also be named as a defendant. Similarly, the hospital or group practice that employs the doctor can be sued.

Just two examples are given here. Wrongful death cases can also arise from slips, falls, electrocutions, on-the-job injuries, occupational illnesses and the use of dangerous and defective products.

Demonstrating Negligence or Recklessness

Negligence creates legal liability for paying wrongful death claims when a person could and should have acted to prevent the loss of life. Classic examples of legally actionable negligence include speeding, running a red light, misdiagnosing cancer, committing a surgical error, manufacturing a defective product and failing to keep premises safe against falls.

Recklessness means acting without concern for the consequences. Driving while under the influence of alcohol is the most common instance of reckless behavior that gives rise to wrongful death claims. Companies that know they are producing and selling a product that can kill consumers can also be held liable for reckless behavior.

Showing Emotional and Psychological Harm

Generally, a close family member has the right to file a wrongful death lawsuit on behalf of their loved one. In practice, a spouse, child or other dependent will stand as the plaintiff. In some circumstances, an estate executor who is not actually related to the person who died will be recognized as having the right to file instead of a family member.

Grieving the loss of a spouse, life partner, parent or sibling can be enough to merit a wrongful death award for emotional damages. Some plaintiffs can strengthen their claim by presenting evidence from a psychiatrist, psychologist or therapist who treated them for depression or other mental health problems following the loss of their loved one.

Showing Financial Losses

When a person dies, their family loses significant economic support and incurs many unwelcome expenses. Claims for economic damages in a wrongful death lawsuit can include the loss of lifetime earnings, the loss of financial support for the home and family (e.g., rent/mortgage, school tuition), and funeral and burial costs.