How is a "wrongful death" claim different from a "survival action"?
A wrongful death claim compensates the family for their loss, while a survival action allows the estate to recover damages the deceased suffered before their passing.
Who is eligible to file a wrongful death claim in California?
California Code of Civil Procedure section 377.60 specifies who can file. The first in line are the deceased person’s surviving spouse, domestic partner, and children. If there are no survivors in this group, the claim can be filed by anyone who would be entitled to the deceased’s property by intestate succession, which may include parents or siblings.
What is the role of the deceased's "estate" in a wrongful death lawsuit?
A wrongful death lawsuit is filed by the family, but the deceased’s “estate” can file a survival action. A survival action seeks to recover for the damages the deceased person suffered before they died. This can include medical bills, pain and suffering, and other expenses. An experienced attorney will file both a wrongful death and survival action to ensure the family receives the maximum recovery.
How long do I have to file a wrongful death lawsuit?
In California, Texas, and Nevada, the statute of limitations for wrongful death is generally two years from the date of the death. However, there are exceptions, particularly for minors or claims against government entities, so it is critical to act quickly.
What is the difference between emotional distress damages and pain and suffering in these cases?
In most cases, the terms are used interchangeably. Both fall under the category of non-economic damages. Emotional distress can include the anxiety, grief, and mental anguish caused by the loss of a loved one. Pain and suffering refers to the physical pain and mental anguish experienced by the injured person prior to their passing.
What is the difference between a "wrongful death action" and a "survival action"?
This is a crucial legal distinction. A wrongful death action compensates the surviving family members for the losses they have suffered, such as the loss of financial support and companionship. A survival action, on the other hand, is filed on behalf of the deceased person’s estate to recover damages the deceased themselves incurred before they died, such as their medical bills and pain and suffering. At Karns & Karns, we often pursue both types of actions simultaneously to ensure a comprehensive recovery for the family.
Can I file a wrongful death claim if the person was partially at fault for the accident?
Yes, in states like California, you can still file a claim even if the deceased person was partially at fault. Your family’s final compensation would be reduced by their percentage of fault. In Texas and Nevada, you cannot recover if the deceased person was 51% or more at fault.
Can my law firm help with the probate process after a wrongful death?
A wrongful death lawsuit is separate from the probate process of the deceased person’s estate. Your attorney will handle the lawsuit, but you may need a probate attorney to handle the administration of the will or trust. Our team can help connect you with trusted probate attorneys to ensure both aspects are handled correctly.
How are damages calculated in a wrongful death case?
Damages are categorized as economic and non-economic. Economic damages are calculated based on tangible losses, including the financial support the deceased would have contributed over their lifetime and funeral expenses. Non-economic damages are calculated to compensate the family for the loss of the deceased’s love, companionship, comfort, and moral support, determined based on the unique nature of the family relationship.
Can I sue Uber or Lyft for sexual harassment or assault in a rideshare vehicle?
Yes. You may have grounds for a lawsuit against the driver and potentially the rideshare company itself. While the driver is the direct perpetrator, the company may be held liable if you can prove they were negligent in their hiring, supervision, or safety protocols. These cases are complex and require an attorney with specific experience in holding large corporations accountable.
Can a wrongful death claim be pursued when death is caused by medical negligence or error?
Yes. A wrongful death lawsuit can arise from any negligence, including medical malpractice. These cases are extremely complex, requiring expert medical reviews to prove that the doctor’s breach of the standard of care directly caused the patient’s death.
Can a wrongful death claim be filed even if the deceased had no formal income?
Yes. Even if the deceased was unemployed or a homemaker, the claim still has significant value. The economic loss can be based on the value of the lost household services (childcare, maintenance, cooking, etc.) they would have provided, which a lawyer quantifies using economic experts.
What is the definition of 'institutional negligence' in cases of abuse and misconduct?
Institutional negligence means the organization (church, school, foster agency, nursing home) is held liable not for the abuse itself, but for its role in enabling it, such as by failing to conduct background checks, ignoring warning signs, or inadequately supervising known risks.