Wrongful Death

Loss of a loved one, be it family or friend, is a time for untold grief and sorrow. It is also the time, how hard it may be, to consult an experienced attorney to immediately begin a comprehensive forensic investigation to determine the cause of death which includes the immediate gathering of crucial evidence.

A wrongful death lawsuit is filed by the surviving dependents or beneficiaries of the deceased seeking monetary damages when it is determined that the decedent was killed as a result of the negligence or fault of the defendant. The dependents or beneficiaries may sue in order to recover (1) immediate expenses associated with the death (medical & funeral); (2) loss of victim’s anticipated earnings in the future until time of retirement or death; (3) loss of benefits caused by the victim’s death (pension, medical coverage, etc.); (4) loss of inheritance caused by the untimely death; (5) pain and suffering, or mental anguish to the survivors; (6) loss of care, protection, companionship to the survivors; (7) general damages and 8) punitive damages in certain cases.

Though both a wrongful death case and a criminal homicide case involve the death of a person, in a wrongful death case, the decedent’s estate pursues the claim in civil court to recover damages from the death, while in a criminal homicide case, the state prosecutes the case in a criminal court and seeks a jail or prison sentence.

One case does not preclude the other—both may occur. If a wrongful death case occurs first, a defendant may assert a Fifth Amendment privilege against self-incrimination during the civil suit because the state may prosecute the defendant and use the defendant’s statement against him. In addition, a wrongful death case and a criminal prosecution for the same death may yield different outcomes that are, nonetheless, consistent. In the wrongful death case, the plaintiff must prove by a preponderance of evidence—more likely than not—that the defendant is liable. In contrast, the prosecution in a criminal homicide case must prove the elements of the criminal homicide charge beyond a reasonable doubt, which is a higher burden of proof than required in civil cases. The varying burdens of proof explain why a defendant may be civilly liable for wrongful death, but not guilty of criminal liability.

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