Suffering the loss of a beloved family member is unthinkable. The pain can be even more unbearable when you discover their death was avoidable and was caused by someone else’s negligence. You and other family members may feel angry, overwhelmed, and unsure about what steps to take next. But you don’t need to feel helpless or lost. A personal injury attorney can help you. You deserve compensation so that you and your family can make ends meet and begin the process of healing. You may be wondering, How do you prove wrongful death? Read on to learn more about what wrongful death is and how to prove a wrongful death claim.
What Is Wrongful Death?
If someone’s death is caused by another’s negligent act, the decedent’s survivors may file a wrongful death claim. A wrongful death may result from any number of actions. However, the most common types of incidents that lead to wrongful death claims include the following:
- Medical malpractice,
- Motor vehicle accidents,
- Motorcycle accidents,
- Truck accidents,
- Defective products,
- Intentional killing,
- Workplace accidents, and
- Pedestrian accidents.
Wrongful death is not a crime, and a wrongful death claim is not brought in criminal court. Instead, these cases go through the civil court system. The purpose of a wrongful death claim is to financially compensate surviving family members for damages resulting from their loved one’s passing. Money can never replace a loved one. However, financial support can often help families move forward during such a difficult time.
How to Prove a Wrongful Death Claim
Proving wrongful death requires your attorney to show that your loved one’s death occurred due to the negligent conduct of another. The elements needed to prove wrongful death establish the at-fault party’s negligence and their liability for damages.
The first step in proving negligence is establishing that the at-fault party owed the decedent a duty of care. A duty of care is simply a duty to act in a reasonable manner that keeps others safe. What that duty entails will depend on the circumstances. For example, the duty drivers owe people they are sharing the road with differs from the duty a business owner owes a customer visiting their store. Your attorney will investigate the circumstances of your loved one’s death and determine what the at-fault party’s duty required of them in that particular situation.
After establishing that a duty existed, the next element of how to prove wrongful death is showing how the at-fault party breached their duty of care. For example, if a person caused someone’s death by speeding, it must be established not only that the driver owed others a duty not to speed but also that they were actually speeding at the time of the accident.
Causation requires showing that the breach led to your loved one’s death. Causation is usually established by applying the but-for test. When using the but-for test, you establish causation by showing that if the at-fault party had not been negligent, then your loved one would not have died. For example, a personal representative satisfies this third element if they show that the at-fault party’s speeding led to the car accident that caused the decedent’s death.
Proving damages in a wrongful death claim requires showing that the at-fault party’s actions caused losses to the decedent’s survivors. Your attorney will gather evidence, such as medical bills and pay stubs, and might also get opinions from experts to calculate and prove your damages. Wrongful death damages can include financial losses such as medical expenses, lost earnings, and loss of future earnings, as well as intangible losses like pain and suffering and emotional distress. Every case is unique, so how much you are eligible to receive in damages will depend on the facts and circumstances of your case.
How Much Time Do You Have to File a Claim?
Kentucky law sets a statute of limitations for filing a wrongful death claim. The statute of limitations bars you from filing a claim beyond this designated time. Your attorney ensures this and other crucial deadlines are met so that you can have your day in court. In Kentucky, the statute of limitations for a wrongful death claim is one year from the date of the wrongful death. However, if the cause of death is not discovered until later, the one-year time limit begins to run on the date of discovery.
Who Can File aWrongful Death Claim?
In Kentucky, family members do not directly file wrongful death claims. State law only permits wrongful death actions to be filed by a court-appointed representative of the deceased person’s estate. However, the court-appointed representative is usually an immediate family member of the decedent, such as the surviving spouse or an adult child.
How Are Wrongful Death Damages Distributed?
Kentucky statute provides the following order for distributing wrongful death compensation to surviving family members:
- All proceeds to the surviving spouse if the decedent had no children;
- If the surviving spouse had children with the decedent, then the proceeds are split equally among them;
- If there is no surviving spouse, the children of the decedent receive the total award;
- If there is no surviving spouse or children, the parents of the decedent receive the total award; and
- The award goes to the decedent’s estate if there is no surviving spouse and no surviving parents or children.
When damages are determined, and the lawsuit is resolved through a settlement or a court judgment, your personal injury attorney receives a check for the total amount. After deducting their fees and other expenses, the attorney transfers the remaining funds to the personal representative for distribution.
At Gladstein Law Firm, PLLC, we understand that nobody contacts an attorney unless they need one. If your loved one’s death was caused by someone else’s negligence, we are here to help you seek justice. Filing a wrongful death claim is overwhelming, especially when dealing with the grief from your loss. Our compassionate legal team can help you hold the person responsible for your loved one’s death accountable. Contact us today for a free case review so that we can help you learn more about your legal options.