On February 15, 2014, Dorchester County experienced a tragic loss surrounding a car accident on a South Carolina road. The accident occurred near the Old Fort Fire Department. A 56 year old woman died at the scene as a result of her husband’s negligence while driving his pickup truck west along Dorchester Road.
In an effort to drive around a car stopped in traffic in front of him the driver left his legal lane of travel, going up and onto the curb. The Assistant Fire Chief, William Sullivan stated about the truck, “It was mangled pretty bad. It had sheared the side of the vehicle off, and when the crews got out here she was hanging halfway out. What kept her in the vehicle was her seat belt.”
Sullivan then went on to say, “They left the roadway quite some ways up, struck the second telephone pole, snapped it off in half and came down the embankment, cross the driveway, and they ended here in the front yard of the fire station,” explains Sullivan.
The Definition of Negligence
A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.
In the case of the accident described above, the husband breached his duty to drive in a reasonable manner consistent with what another driver would do in similar circumstances. As a result, he was negligent under the law and a lawsuit could be brought against him for the accident.
Can I Sue for Wrongful Death?
A wrongful death claim is usually filed by a representative of the estate of the deceased victim. It’s filed on behalf of the survivors who had a relationship with the victim.
Exactly who those survivors are will vary from state to state. Some of the people entitled to sue and recover for their loss include the following:
Immediate family: In all states, immediate family members like spouses and children and parents of unmarried children can recover under wrongful death actions.
Life partners and financial dependents: Whether a life partner can recover will depend on the state. In some states, a domestic or life partner, or anyone who was financially dependent on the deceased person may have a right of recovery.
Distant family members: Depending on the state, distant relatives such as brothers, sisters, and grandparents, may bring wrongful death lawsuits.
All persons who suffer financially: Some states will permit individuals who will suffer financially from the death of the deceased to bring a wrongful death action for lost care even though they are not related by blood or marriage to the deceased.
Parents of a deceased fetus: Depending on the state, the death of a fetus can be the basis for a wrongful death suit. For instance, in some states, parents cannot bring a wrongful death action to recover for financial and emotional damages resulting from the death of a fetus.
In those states, the parents can bring a wrongful death action only if the child was born alive and then died.
How Do I File a Wrongful Death Claim?
In the case of the tragic death described above, the estate for the deceased would contact a personal injury attorney. The lawyer would bring a wrongful death claim against the husband on behalf of the deceased’s family, immediate or otherwise.
First, the attorney would need to ask the probate court of South Carolina to be appointed as the representative of the deceased. Then, they would need to bring a claim against the driver for wrongful death. By extension, this would include the insurance carrier that provided liability insurance on the truck.
Any money obtained through the process would be divided among the heirs of the deceased according to her will, if there was one. Otherwise, it would be disbursed according to the laws of intestacy in the state of South Carolina.
When Should I File a Wrongful Death Claim?
Wrongful death claims allow the estate of the deceased person to file a lawsuit against the party who is legally liable for the death. A wrongful death claim can stem from almost any kind of personal injury situation, except those cases filed through the worker’s compensation system.
Filing a wrongful death claim is possible when a victim who would otherwise have a personal injury claim dies as a result of either negligence or an intentional harmful act on the part of the defendant. This can occur in a variety of situations, including:
- When a victim is killed intentionally.
- When a victim dies as a result of medical malpractice.
- Car accident deaths involving negligence.
What do I have to prove in a wrongful death claim?
In order to hold the defendant liable in a wrongful death claim, the plaintiff must establish that:
- the defendant was negligent and owed the victim a duty of care, which was breached
- the breach of duty was the cause of death.
Duty, breach of duty, causation and damages are the elements of negligence.
What is the Duty to Care?
While the definition of duty or “due care” varies depending on the facts of the case, it essentially means that there is a duty to do something to keep another person safe. Alternatively, it may be a duty NOT to do something that would harm another person.
In a wrongful death case, the judge will decide if the defendant owed a duty of care. A judge will consider several factors when deciding if the defendant owed a duty of care. Factors include:
- The public policy consequences of finding a duty in all similar cases
- How predictable the harm was
- How closely connected the defendant’s acts and the harm were
What is a Breach of Duty?
If there was a duty to care, the plaintiff must present evidence that the defendant breached that duty. For example, the plaintiff might present evidence that the defendant was acting irrationally in response to a slow moving vehicle. Failing to drive safely is a breach of the duty of due care.
What is Causation?
The plaintiff must next prove that the breach of duty was the cause of the decedent’s harm. For example, the plaintiff must prove that it was the driver’s unsafe actions that caused the truck to flip and kill his wife.
What are Damages?
Along with breach of duty and causation, the plaintiff must prove that the decedent actually suffered damages or harm. Of course, given that the defendant’s wife died in the accident, she suffered damages and grave harm.
What Kind of Damages Can I Claim in a Wrongful Death Suit?
In wrongful death cases, financial loss is the main type of injury one would suffer. Damages in a wrongful death claim may include:
- Loss of support
- Loss of services
- Lost prospect of inheritance
- Medical and funeral expenses
- The medical costs that the deceased victim incurred as a result of the injury before death
- Loss of income
- Loss of care, guidance, and nurturing that the deceased would have provided
- Loss of consortium
In most states, the laws provide that the damages awarded for a wrongful death shall be fair and just compensation for pecuniary (financial) injuries that resulted from the decedent’s death.
Determining Financial Loss
There are many factors that help determine financial loss and the potentail amount of compensation awarded. These factors include:
- The age, character and condition of the decedent
- The decedent’s earning capacity
- Life expectancy
- Health and intelligence
- Punitive Damages
The intent of punitive damages is to punish the wrongdoer and deter others from similar conduct. Thus, punitive damages are normally awarded when there has been serious or malicious wrongdoing.
Generally, in most states, a plaintiff may not recover punitive damages in a wrongful death action. However, in some states there are statutes that permit the recovery of punitive damages. For this reason and many more, it is critical to consult with an experienced attorney.
Use the Car Accident Calculator to determine the estimated worth of your wrongful death claim.
Traumatic Brain Injury can Lead to a Wrongful Death Claim
Traumatic brain injury (TBI) is a common injury sustained in a variety of accidents. TBI affects an estimated 1.7 million victims per year1 in the United States.
A brain injury can range from a mild concussion to severe and irreversible brain damage. An average of 52,000 victims2 do not survive their brain injuries each year, according to the Centers for Disease Control and Prevention (CDC).
Brain injury related death can happen when the initial impact and resulting brain damage are severe. It may also be due to secondary injuries or complications that later arose as a result of the TBI. The following are some ways that brain injuries can lead to death:
- Anoxic events in which the brain is completely deprived of oxygen flow for an extended period of time (i.e. drowning).
- Abscesses, meningitis, or other infections from skull fractures.
- Cell death due to infections or inflammation.
- Excessive intracranial pressure due to swelling or bleeding inside the skull.
- Aneurysms that develop after a TBI.
- Brain death, in which there is a loss of meaningful brain function.
Many fatal brain injuries are caused by an accident that resulted from negligence. Surviving family members have the legal right to file a wrongful death claim against the responsible party. Some common accidents that may lead to TBI wrongful death cases include:
- Motor vehicle accidents
- Bicycle or motorcycle accidents
- Pedestrian accidents
- Sports injuries
- Medical malpractice
- Birth trauma
The Hartman Law Firm, LLC Recovered Compensation for Several Charleston Families
Every state has its own “statute of limitations.” This is the maximum allowable time to file a wrongful death lawsuit. A claim filed after this period is usually denied. That’s why you need to call Frank as soon as possible.
Frank Hartman can provide you with a free and confidential consultation about your case and advise you of your legal options. Find out more about how you can benefit from the advice of a Charleston, SC wrongful death attorney. Contact the Hartman Law Firm, LLC at (843) 300-7600.