A “wrongful death” occurs when one individual dies as a result of the negligence or intentional misconduct of another. In legal terms, it is considered a special type of personal injury claim. The difference is that, the person who has been injured in a wrongful death case cannot bring his or her own lawsuit for damages. Instead, the personal representative of the estate of the deceased must bring the lawsuit to court. But, how do you go about proving wrongful death? Each state has its own elements of proof that are required.
Generally proving wrongful death in court
When a lawsuit has been filed for wrongful death, there are certain elements of proof that must be presented to the court before damages can be awarded. Put in simple terms, a plaintiff must show that the defendant was negligent and that negligence caused the deceased person’s death. However, proving negligence and causation may not always be that simple.
Legal elements of a negligence case
There are three elements that must be proven in ever negligence case: duty of care, breach of that duty, and causation. Damages are normally required to be proven as well, in personal injury cases. However, the death of the decedent is automatically considered damage for which the plaintiff can recover. Survivors of the deceased are also allowed to seek compensation for their own losses related to the untimely death of their loved one.
Duty of Care – The Plaintiff must be able to prove to the court that the Defendant owed the deceased person a duty of care. For instance, in the case of an automobile accident, the Plaintiff must establish that the Defendant was obligated to obey the Rules of the Road and drive carefully while operating a motor vehicle. In a medical malpractice case, the plaintiff must establish the appropriate “standard of care” to be followed in providing medical treatment in that particular situation.
Breach of Duty of Care – A breach of a duty is simply the failure to perform that duty. The Plaintiff must prove that the Defendant breached the duty of care owed to the Defendant. So, if the defendant in the automobile accident failed to obey the traffic laws, or the doctor failed to do what a competent physician would have done under similar circumstances, then a breach can be established.
Causation – Even if a plaintiff can establish that the defendant broke the law or breached a duty in some way, such evidence is not sufficient entitle the plaintiff to damages. It must also be shown that the Defendant’s conduct, or misconduct, actually caused the wrongful death. In other words, if the person was injured in an automobile accident, but his death was actually caused by a medical condition unrelated to those injuries, wrongful death has not been proven.
If you have questions regarding wrongful death, or any other personal injury claims, call the Cottrell Law Office at (888) 433-4861.
He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
Latest posts by Wes Cottrell (see all)
- How to Get Your Missouri Highway Patrol Crash Report - November 4, 2019
- How to Get Your Arkansas State Police Accident Report - November 4, 2019
- Social Security Overpayment Statute of Limitations - October 2, 2019