A surviving spouse, child, or grandparent have so very much to deal with when faced with the death of a loved one that it is most often more than they can do just to cope with immediate problems.  The last thing they usually want to think about is a lawsuit. 

          A thorough understanding of the law is nonetheless almost always crucial as the survivors will ultimately have to face the practical realities of life without their father, mother, etc.  Those realities are frequently severe as financial hardships can come to dominate life and limit one's choices.  As such, this is one area of the law in which a fair and just recovery can make a significant difference in the quality of life for the surviving family members.  Sometimes, such a lawsuit is the only practical means of paying for college educations, mortgages, and the like that otherwise would have been paid by the decedent. 

          As a result, the law of most states permits one to bring what is known as a "wrongful death suit" when the death of a loved one has been caused by the wrongful act or neglect of another person.2  In other words, such an action is authorized in cases in which the death has been the result of either a negligent act or an intentional wrongful one.  Typical sorts of circumstances giving rise to such claims include automobile collisions, dangerous products, industrial mishaps, airplane crashes, medical malpractice, and other accidents.      

          In general, one may bring such an action for the death of a husband, wife, domestic partner, child,3 and in some cases grandchildren.4   (For a fuller explanation of who may bring such an action, please see "Who May Bring Suit?".)  In so doing, the damages which are recoverable are limited to those pecuniary injuries which the survivors have sustained, and do not include loss by way of grief, emotional distress and the like.  (Please see article entitled "Recoverable Damages.")                   

          As in other areas of the law, a time limit (known as a statute of limitation) is imposed within which one must file any suit one wishes to pursue.5  California law generally imposes a two year statute of limitation on any such claim.6  Nonetheless, because the applicable statute of limitation can very and because other claims requirements may apply depending on the theory or theories of liability and the specific facts of the case, one should consult with an attorney as soon as possible to be certain that their rights are fully protected.  Where one fails to give notice, to file a claim, and/or to file suit in the proper form and in the proper location within the requisite time frame, one can lose any and all rights to any compensation and/or other remedy.         

          When an award is made on a wrongful death claim, a jury is limited to making one lump sum award.7  It is then up to the judge in a given case to allocate the money among the respective heirs/claimants.8  

          Decisions about pursuing a wrongful death action must be made at a time when the survivors are already pressed with overwhelming emotions and responsibilities.  It is therefore crucial to retain competent counsel early on and to begin exploring one's rights as soon as possible. 

 

1     This article is based on California law only.  

2     California Civil Code section 377.60.

3     As the California statute permitting such an action requires that the decedent have been a ?person,? the Courts have determined that the parents of a child who is stillborn may not bring such an action.  (Justus vs. Atchison (1977) 19 Cal. 3rd 564, 576, 139 Cal. Rptr. 97.) 

4      California Civil Code section 377.60.

5     When the negligent or wrongful act is on the part of a governmental entity and/or employee, a government claim must be filed as a first step.  The time limit for such a claim is usually very short, and almost always shorter than is the statute of limitation.  It is therefore very important to seek the advice of competent counsel as soon as possible to be certain that a claimant complies with all applicable time limits, claim statutes and the like. 

6      California Civil Code section 335.1.  The specific facts of the case can result in different time limits for filing claims and/or suit. 

7      Canavin vs. Pacific Southwest Airlines (1983) 148 Cal. App. 3rd 512, 196 Cal. Rptr. 82. 

8      California Code of Civil Procedure section 377.61.