Wrongful Death Cases
A sad fact of life is that everyone dies. While scientists work on extending life, we still have to deal with it when it comes unexpectedly. Often times when it is unexpected, this because something bad happened. Sometimes, that is what we call a wrongful death.
In a nutshell, wrongful death is where the death is caused because someone did something legally wrong. Not necessarily criminal, just against what society thinks should be done. Certainly criminal actions that lead to death create a wrongful death situation, but so too do other situations. For instance, if you failed to keep your sidewalk safe and someone trips and hits their head and then dies, that would most likely not be criminal, but could subject you to civil liability for wrongful death.
Wrongful death itself is a subpart personal injury law, which in legal terminology is torts. However, it bisects probate law, so attorneys in the field have to not only know litigation, but also the dance of probate proceedings. This includes obtaining the court’s approval for the appointment of a personal representative for the estate, as well as then dealing with any settlement and potential distribution to the people who can make a wrongful death claim.
Speaking of those people, it is important to know who can make a wrongful death claim. The law says the following people can:
"surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedents domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not[.]" ORS § 30.020
To boil that down, basically the children and parents of the person who died can, and if none of those people are alive, then the people who would inherit the estate can sue for wrongful death.
Another important item to keep in mind is that there is a statute of limitations, which is generally three years. However, it can be shorter, such as two years if you are suing the government. The usual statute of limitations for other personal injury actions is two years in Oregon, so the wrongful death statute potentially gives you a bit more time, which is partly because it takes a bit more time to go through opening an estate and having a personal representative appointed.
This then takes us to the damages, which also have various limits. First, there is no limit to the economic damages, which would include the medical bills, plus the damage to the estate. As in, if someone dies at 50 and makes $75,000 per year, it could reasonably be expected that had that person lived longer, their estate would have grown due to their income for another 20 years’ worth of work. However, there is a cap of $500,000 for the non-economic loss, which is mostly for the emotional loss of the loved one. This is because the law recognizes that everyone dies, so it is always sad, but inevitable to where society does not want to pay for the death itself, but for the early death or wrongfulness of the death. You also then have caps if you are suing the government.
This takes us to the final part, which is the distribution of any proceeds from a settlement or verdict. On this part, there is no set formula, and usually there is never enough money to go around (not that money can make up for the loss, but after a few months of grieving, people start to get greedy). So you are left with dividing up a limited pot of money. If all of the beneficiaries can agree to some formula, the probate court will usually accept that.
If not, it becomes a fight, with the court mostly looking at how close of a relationship each person had with the deceased. For instance, the child who lived at home and took care of their sick parent will have a greater loss than the child who ran away from home and had not talked to their mother in 30 years. You see, the amount of recovery is often very limited, as far too many people do not have enough insurance, and rarely do the wrongdoers have assets to pay anything beyond the insurance.
These are only a few pieces of information pertinent to wrongful death claims. Your attorney can go over them in greater detail, and discuss other issues that may apply to your individual case.
Michael Stevens’ Wrongful Death Experience: