Wrongful Death
Death is always a tragic event, whether the result of disease, accident or trauma. When a death is due to another’s actions or inactions, anger always follows. The criminal justice system primary goal is to punish. Criminal cases are brought on behalf of the government as it is suppose to represent “society” that has been harmed by the criminal act. Criminals are punished, sent to jail, or executed. The benefit to the surviving family and friends is the punishment given to the person causing the death.
In civil cases the goal is to compensate the family of a person wrongfully killed. While there is no amount of money that can really compensate a family, the only remedy is money. No one would accept an offer of any amount of money in exchange for the intentional death of a loved one. However, this is the best the law can do as it is impossible to “turn back the clock” and undo the act that caused the death.
Whenever a death is caused by the wrongful act or neglect of another person or entity, a claim may be brought by a personal representative or special administrator for the benefit of the surviving spouse and/or the deceased’s next of kin, which usually is children and a minor’s parents. A claim for wrongful death may arise from a motor vehicle accident, assault and battery, slip and fall and any number of other personal injury cases. Workers compensation cases, if the employer is at fault, are not included unless a third party is responsible for the death. The claim, whether reached by settlement or if litigation is initiated, must be brought in the name of the deceased’s personal representative or special administrator. A special administrator may be appointed in a probate proceeding solely to pursue a wrongful death claim and his or her duties are limited. In addition, a judge must approve any settlement involving a wrongful death claim as well as its distribution.
A wrongful death claim is only for the “pecuniary loss” sustained by the surviving spouse and heirs at law. This excludes any claims for conscious pain and suffering, medical expenses and related items suffered or incurred by the decedent prior to his or her death. This is a separate claim, which may be brought in connection with a wrongful death case, but any money received for these items passes through the estate and is governed by probate law. Conversely, money received in a wrongful death claim passes outside of the estate to the surviving spouse and next of kin, in proportion to their pecuniary loss.
Pecuniary loss damages that are recoverable in a wrongful death do not include money for grief, mental suffering or bereavement. Pecuniary damages include the loss of:
- financial support;
- services;
- comfort; and
- companionship.
However, each of these must have a monetary value to distinguish them from those items that are excluded. Each of these items are considered independently as to each person entitled to recover, which includes a spouse, children, and parents. Other considerations to be factored are the physical and mental health of the decedent had he or she not sustained the injuries that caused their death, the decedent’s life expectancy, the life expectancy of the spouse, children and/or parents. The law does not allow any reductions from a wrongful death claim if the surviving spouse remarries, anyone entitled to recover may receive an inheritance or receive money from insurance or worker’s compensation benefits. Regarding financial support and services, the question is what were the likely contributions the decedent would have made to his or her spouse, children or parents, if the decedent was a minor. For the loss of comfort and companionship these are more difficult to determine their amount. Recovery is only for the loss of comfort and companionship that are shown by the evidence to have a monetary value. However, survivors are not required to provide evidence for a specific dollar value of these losses.
Wrongful death cases involving a child are more difficult to determine their value. The Nebraska Supreme Court has held that the amount to be awarded is incapable of computation and is largely a matter for a jury. A parent- child relationship has an “intrinsic value” that entitles the parents to at least some money. In addition to the items set forth below, the wrongful death of a child includes the loss of the society of that child. To determine this amount the mutual benefits each family receives from the others’ continued existence, love, affection, care, attention, companionship, comfort and protection are considered.
Free Consultation
If a loved one was killed due to the conduct of another call Lapin Law Offices for representation with caring, passion and dedication throughout Nebraska.