Robert A. Solomon, P.C.
Two Offices Serving New York & New Jersey

The basics of a wrongful death claim, Part 1

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Wrongful death claims are characterized by their unusual departure from other tort-based lawsuits. In personal injury suits, only the person who suffers the injury can bring the suit. But in wrongful death suits, the primary victim cannot bring suit because she is dead. The surviving family can bring a suit, but their compensation does not include the damages that would be available to the victim, were she alive. This is just one of the quirks in wrongful death suits that can complicate a lawsuit for those who are unprepared. This post will go over wrongful death suits and how to avoid the common pitfalls.

The biggest problem confronting wrongful death suits is who can bring the claim. In traditional tort, the victim brings the claim, but that isn't possible in these suits. Most states allow two classes of individuals to bring claims: the executor of the decedent's (the deceased victim) estate and immediate family members.

The executor can bring the suit as the representative of the victim who passed away. The executor can pursue claims that would normally be asserted by the victim. For example, the executor can assert claims for pain and suffering, lost wages, and other classic tort damages. The conception is that the executor stands in the shoes of the victim.

Similarly, family members can bring claims. But family members are narrowly defined. For example, spouses, parents, and children can bring claims but usually no one else. So, no siblings and rarely grandparents. Additionally, that excludes girlfriends, best friends, boyfriends, and fiancé/fiancées. These family members, if there is no executor, can bring suit for damages traditionally associated with the victim (pain and suffering, lost wages, etc.)

If you recently lost a loved one to a fatal accident, you may want to speak to an attorney to review your options to file a wrongful death suit. As you can see, these claims are more complex than classic personal injury. A lawyer can walk you through these issues to ensure that you are ready.

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