Historically, when a victim died as a result of a tort action, any causes of action died with the victim. In most jurisdictions, survival statutes have been enacted to allow a victim’s cause of action to pass to their survivors. If you are the survivor of a family member or the personal representative of a victim, you could bring a cause of action to recover damages as a result of the tort action.
Wrongful death claims are civil causes of action the proceed the death of a victim caused by the negligence or willful acts of another. One who brings a wrongful death claim must be able to prove a defendant was negligent or acted willfully towards the victim and that the negligence or willful acts led to the victim’s death.
Who can file a Wrongful Death Claim?
The person who can bring a wrongful death claim varies among jurisdictions. In some jurisdictions, the surviving spouse or next of kin may be the appropriate party to bring forth a claim. In other jurisdictions, the personal representative may be the appropriate party to bring forth a claim. In Nevada, personal representatives of the victim’s estate or legal heirs of the victim are sufficient to bring a wrongful death claim. Foster children, stepchildren who are not adopted, fiancées, and unmarried partners are not considered legal heirs under Nevada law.
In most jurisdictions, those who file a wrongful death are entitled to damages in the form of loss of support and loss of companionship. In Nevada, damages depend on whether the person(s) bringing the claim is an heir or a personal representative.
Heirs can seek compensation for the following types of damages:
• Loss of support
• Loss of Companionship
• Loss of comfort
• Loss of consortium
• Pain and suffering and/or disfigurement of the victim
Personal representatives can seek compensation for the following types of damages:
• Punitive damages
• Exemplary damages
• Medical bills
• Funeral expenses
It is also important to note that when a personal representative brings a wrongful death claim, the compensation is provided to the victim’s estate for debts. In wrongful death claims, a victim’s creditors have no right to any damages awarded to the victim’s heirs or personal representative.
Defenses for Wrongful Death Claims
Just like in personal injury cases, if the victim of a wrongful death claim contributed to his or her injury that ultimately lead to his or her death, the recovery will be reduced by the percentage of fault a jury or judge allocates as the victim’s own fault.
Exceptions to Survival Statutes
There are some exceptions to survival statutes that exist in most jurisdictions. If a tort is an “intangible personal interest”, such as defamation or malicious prosecution, it expires upon the death of the victim. These torts are said to be too personal to allow others to bring a claim on behalf of the victim.
How an Attorney Can Help
If you or someone you know has lost a loved one due to a wrongful death, it is important to contact an attorney as soon as possible for help. A skilled catastrophic injury lawyer in Las Vegas, NV can assess your individual case and help you better understand what your first steps should be.
Thanks to Eglet Adams for their insight into personal injury claims and wrongful death.