April 26 , 2021 | Wrongful Death
When someone is injured in an accident caused by another party’s negligence, the victim can file a personal injury lawsuit to recover monetary damages. But what happens when the victim is killed as a result of the accident? In that situation, the victim’s estate or immediate family can file their own special type of personal injury lawsuit, which is known as a wrongful death claim.
Who Can File a Wrongful Death Lawsuit?
Wrongful death claims are strictly governed by state law. In Wisconsin, the law specifies that a wrongful death lawsuit must be brought by either (a) the personal representative of the victim’s estate or (b) the person who is entitled to recover damages if the claim is successful. The person entitled to recovery is basically the victim’s next-of-kin. So if the victim was married or in a legally recognized domestic partnership, their surviving spouse or domestic partner could file a wrongful death claim. Similarly, a child can seek to recover damages on behalf of a deceased parent. If the victim had no surviving spouse, domestic partner, descendants, or parents, then their siblings, if any, would be entitled to file a wrongful death claim.
What Are the Grounds for Wrongful Death?
Wisconsin law defines wrongful death as one “caused by a wrongful act, neglect or default” on the part of another party. This means that the plaintiff who brings a wrongful death lawsuit must show that but for the defendant’s negligent act, the victim would not have died. Generally speaking, the types of acts that would allow a living victim to file a personal injury lawsuit also give rise to a wrongful death claim. For example, if a driver runs a red light and plows into another vehicle, killing its occupants, that would be ample grounds to support a wrongful death lawsuit.
It is important to note that wrongful death is a civil matter. In other words, the plaintiff does not have to show the defendant committed any criminal act in causing the victim’s death. Of course, it is possible for a person to face both civil and criminal charges related to a person’s death. Say you had a drunk driver who caused a fatal accident. The state could try and convict the drunk driver of involuntary manslaughter under criminal law, while the victim’s family could pursue a separate civil wrongful death claim.
Indeed, even when a defendant is acquitted of criminal charges in connection with a person’s death, that does not mean they automatically escape wrongful death liability. This is because the burden of proof in a criminal prosecution–guilt beyond a reasonable doubt–is substantially higher than in a civil lawsuit, where the plaintiff need only prove their allegations by a preponderance of the evidence.
How Do You Prove Damages in a Wrongful Death Case?
In a normal personal injury lawsuit, the victim can ask for compensation in the form of monetary damages. Wisconsin law typically allows for an award of both special damages and general damages. Special damages are those items that can be easily quantified in economic terms, such as the victim’s medical bills and lost wages. General damages are subjective by nature and usually cover pain and suffering or loss of enjoyment of life.
When it comes to a wrongful death case, the personal representative or heirs can seek special damages for items like the victim’s final medical expenses and burial, the loss of the victim’s financial contributions to the family, or even a loss of expected inheritance based on what the victim would have earned if they had lived. The heirs are also entitled to general damages for the loss of the victim’s “society and companionship,” i.e., their love and emotional support.
While there is no limit for the amount of special damages a court can award in a wrongful death case, Wisconsin law does cap general damages for loss of society and companionship at $350,000 when the victim was an adult and $500,000 if they were a minor child. It is also worth noting that, unlike many other states, Wisconsin does not permit any award of punitive damages in a wrongful death case.
When Do You Need to File a Wrongful Death Lawsuit?
As with other types of civil lawsuits, Wisconsin imposes a time limit known as the statute of limitations on wrongful death lawsuits. The basic rule is that if a wrongful death was caused by a car accident, the statute of limitations is 2 years; otherwise, it is 3 years.
In most cases, the limitations period starts to run on the date the fatal injury occurred, which is often but not always the same day that the victim died. When the date of the accident and the date of death are not the same, the statute of limitations can begin to run when the court determines the fatal injury should have been first reasonably discovered. In any event, it is critical to file a wrongful death lawsuit before the relevant limitations period has expired. Otherwise, no matter how much evidence you have, the case will be thrown out of court before trial.
Why Do You Need an Experienced Wisconsin Wrongful Death Attorney?
Hiring a lawyer is often the last thing on the minds of a grieving family member. But if you want to hold a negligent party accountable for causing wrongful death, it is in your best interests to get in touch with a lawyer as quickly as possible.
A qualified Wisconsin wrongful death lawyer can carefully review your case, negotiate a potential settlement with the negligent party (and their insurance company), and if necessary act promptly to preserve your legal rights. So if you have recently lost a loved one due to someone else’s malfeasance and need to speak with a lawyer, contact the Martin Law Office, S.C., today to schedule a free case consultation.