Learn How To File a Wrongful Death Claim in California
It is really tragic when someone dies because of another person or entity’s wrongdoing. If you’ve sadly lost a loved one due to someone else’s negligence or intent, nothing can replace your family member. However, there may be hope of financial compensation for survivors who may be entitled to file a wrongful death claim. In California, CCP Section 337.60 sets the law for who is entitled to file and collect benefits associated with a wrongful death claim.
Each case is different and we invite you to call our capable personal injury attorney at (323) 951-1188 to determine if you have a case and are eligible to make a wrongful death claim. In the meantime, however, let’s take an overall look at wrongful death claims. What falls under wrongful death? Who can bring a claim? How long do you have to bring a claim?
What Is Wrongful Death?
There are a number of circumstances that could result in a wrongful death. These include: pedestrian accidents, bus accidents, motorcycle accidents, medical malpractice, exposure to toxic chemicals, and even defective products.
If a property owner or manager fails to maintain safe premises, which leads to death, a wrongful death suit may be filed.
In California, suicide can fall under wrongful death if negligence by a person with a special duty of care was a significant factor in the suicide. For example, a therapist who took no action when aware a patient was suicidal could be held liable.
Four Elements of Wrongful Death Suits
In order to establish a wrongful death claim, the plaintiff (person filing the claim) must prove four elements:
- Someone died.
- The death resulted from negligence or intent to harm.
- Plaintiff sustained monetary loss.
- The deceased’s estate has an appointed representative.
Because a wrongful death suit is a civil claim, the standard for determining liability is a “preponderance of evidence.” This is different from a criminal case, which must be “proven beyond a reasonable doubt.”
Deaths caused by a defective product or an attack by a dog fall under “strict liability” in California. This means liability is a lot easier to establish because the plaintiff does not have to prove negligence or intent.
Who Can File Wrongful Death Suits in California?
The surviving spouse, domestic partner, and dependent children may all file wrongful death claims. Minor children, such as stepchildren, may also file claims provided they were dependent on the deceased for at least 50% of their financial support.
Parents, putative spouses and their children may also bring wrongful death lawsuits if they can prove they were financially dependent on the deceased. According to California Family Code, a putative spouse is one who believes in good faith that the marriage is valid.
If the deceased does not have a surviving spouse, domestic partner or children, parents, grandparents or siblings may be able to file a claim under intestate succession.
Exceptions to Wrongful Death Claims
There are exceptions to who may file wrongful death suits in California. For example, in a medical malpractice suit, if the deceased’s chance of survival was 50% or less before the act, the claim may not be actionable.
In Justus v Atchison (1977) 9Cal3d 564, at 579-580, the California Supreme Court ruled that “a fetus is not a person within the meaning of our wrongful death statute until there has been a live birth.”
In addition, if a deceased person was killed while committing a felony, the survivors would be unable to bring a wrongful death suit.
Bullying and Wrongful Death Suits
Wrongful death suits may be filed in cases of suicide that results from bullying or cyberbullying. If a school has knowledge that a child is being bullied and does nothing to intervene, the surviving parents may file a wrongful death suit against the school district.
In addition, if the parents of the student bullying are aware of the actions and do not do anything to stop their child, they, too, could be held liable.
Damages in Wrongful Death Claims
According to California’s wrongful death laws, damages compensate for the value of expected support heirs would have received from the deceased, had he or she lived. This could include future earnings and loss of companionship. Life expectancies of both the deceased and the plaintiff are considered in determining amounts.
The plaintiffs in a wrongful death suit are entitled by California law to receive compensation for benefits they can prove to have expected to receive, had the deceased survived, as well as losses caused directly by the death.
- Past medical and hospital expenses related to the act
- Burial and funeral expenses
- Past and projected loss of earnings and support
- Loss of household services following the death of a parent or spouse
- In addition, California wrongful death laws provide for damages for non-monetary losses.
The death of a spouse or parent also causes losses not related to money. California Civil Code recognizes the following for consideration for non-economic damages in wrongful death claims:
- Parental advice
- Loss of love and affection
- Loss of moral support and comfort
- Loss of society and companionship
The amount of damages for non-economic losses is not limited by law. In a jury trial, the jury may award any amount that is reasonable, taking into account evidence and common sense. The damages are compensatory and non-punitive. They do not include “pain and suffering” or grief, except in the case of a felony homicide when the defendant was found guilty.
How Is a Wrongful Death Claim Different from a Survival Action?
In certain circumstances, wrongful death lawsuits are combined with what is known as “survival action.” As defined in California Code of Civil Procedure 337.30, a survival lawsuit allows heirs to sue on behalf of the deceased. However, unlike the wrongful death suit, the death must not have been instantaneous.
A survival suit, which is filed by a representative of the estate, can include punitive damages. Both claims may be filed concurrently. Contact our Los Angeles personal injury attorney at the Law Offices of Jennie Levin, P.C. for additional information about survival suits.
Pursuing a Claim
Many considerations need to be taken into account when pursuing a wrongful death suit. For example, under California’s “one action rule,” all survivors wishing to file a wrongful death claim must join one suit.
Therefore, you have a mandatory duty to include all known heirs when filing a suit. There are additional laws regarding heirs. If you bring a wrongful death claim, it’s important to advise your attorney of all possible heirs.
How Long Do You Have to Pursue a Claim?
As with many suits, there is a statute of limitations for filing a wrongful death claim, as well as survival actions. The California statute of limitations for both claims is two years. For wrongful death suits, the two years begins on the date of death. For survival claims, the estate may file claims for up to two years following the date of injury, or within six months after death, whichever comes last.
If you believe you may have a wrongful death claim, it’s crucial to contact a personal injury attorney as soon as possible. Each case is different and you will want the knowledge of an experienced attorney to guide you through the process. Contact the Law Offices of Jennie Levin at (323) 951-1188 for a free, confidential evaluation of your potential case.