The loss of a loved one can be devastating, particularly when that loss occurred due to the negligence of another person or people. While no amount of money can heal the wounds a sudden and tragic loss creates, a settlement from a wrongful death lawsuit can, at the very least, ensure that the loss does not put you or your family into the danger of financial hardship.
What is a Wrongful Death Lawsuit?
A wrongful death lawsuit is classified as a civil suit and is different from a criminal trial. However, in many cases of wrongful death, there is potential that a criminal case may be filed based on the same facts in the wrongful death case.
However, the family member of the deceased person file the wrongful death lawsuit. The prosecutor files the criminal case. For example, if someone dies in a drunk driving incident, the courts would hold the person driving drunk liable in a wrongful death suit brought by the deceased person’s family. Also, the drunk driver could face criminal homicide or manslaughter charges brought by the state.
The existence of a criminal case brought by the state does not prevent the filing of a wrongful death suit.
Each state has its own laws that govern wrongful death claims, and Louisiana is no different. Here’s what you need to know about proving wrongful death lawsuits in Louisiana:
Louisiana Civil Code 2512.2 : Wrongful Death
According to Louisiana Civil Code 2512.2, a wrongful death claim occurs when one individual seeks compensation when a person dies due to the fault of another. The party at fault can be an individual person or an entity like a corporation. We call the individual seeking compensation the “plaintiff”. And, we call the party at fault a “defendant”.
Wrongful death can be the result of anything from an accident at work to downright negligence, recklessness, or purposeful action. A good way to think about wrongful death claims is that they are the same as a personal injury claim, except the injured party isn’t around to seek damages themselves. Therefore, their family members seek damages on their behalf.
What Must A Plaintiff Prove In A Wrongful Death Suit?
There are several things a plaintiff must prove in order to show wrongful death occurred.
The same elements exist in proving standard negligence cases:
- breach of duty,
- causation, and
In order to prove the defendant is liable, the defendant must have owed the decedent a duty of “due care”. This means that the defendant had a duty to perform some action to keep the decedent safe, or to refrain from doing something that would bring harm to the decedent.
A relevant example would be if the decedent dies in a car accident. If the plaintiff alleges that the defendant was driving negligently, the argument for proving duty would be that the plaintiff had a duty to operate their vehicle responsibly. The judge decides the presence of a duty of due care, not a jury.
Proving Breach of Duty
After a judge determines duty exists, the next step is to prove that the defendant breached that duty.
Lets take the example of a car accident. A plaintiff could produce evidence that the defendant was not paying attention to the road or violated rules of traffic, such as running a stop sign. Either qualifies as not operating their vehicle responsibly, and thus breached the defendant’s duty of due care.
The plaintiff will have to convince the jury that their version of events is at least 50% likely to be true. This is the standard in most civil cases.
The plaintiff’s next step is to prove that the defendant’s breach of duty actually caused the harm to the decedent. In our hypothetical car crash, the plaintiff would have to prove that it was the defendant’s car that struck and fatally wounded the decedent, and not some other vehicle.
Depending on each individual case, causation can quickly become the most complicated element of a wrongful death lawsuit. For instance, in a multi-car accident, the plaintiff must prove cause: that the defendant’s car specifically caused fatal injury to the decedent.
In other civil suits involving negligence or personal injury, you must prove that damages were actually suffered. In wrongful death cases, however, you don’t need to prove damages. If a judge determines a breach of duty and causation exist, we assume the damages with the death of the decedent.
What is the Wrongful Death Lawsuit Settlements Average?
If a judge determines breach of duty and causation in a wrongful death lawsuit in Louisiana two potential types of damages exist: economic and non-economic. How much you receive from a wrongful death lawsuit settlement depends entirely on your specific case details. Contact a wrongful death attorney to get a more accurate representation of what you can expect!
We define economic losses as being measurable and specific losses. They can include:
- Funeral and burial expenses
- Medical bills
- Lost wages or benefits
- Value of lost household services
- Bills for damaged property
Non-economic losses are a bit more abstract. They are still losses suffered as a result of the wrongful death, but without a number attached to them. They can include:
- The pain and suffering the decedent suffered in their final moments
- The loss of care, companionship, guidance, or emotional support suffered by the family members as a result of the untimely death
Who Can File a Wrongful Death Suit?
In Louisiana, there are very specific laws regarding who can file a wrongful death claim. The plaintiff must be one of the following:
- The surviving spouse or children of the decedent.
- If the decedent has no surviving spouse or children, the parent or parents of the decedent
- In the absence of a surviving parent, the surviving siblings of the decedent
- If the decedent has no surviving siblings, the surviving grandparents
To accompany these very specific categories, there are also specific rules including or excluding certain people from them. For instance, family members related by adoption are considered the same as family members related by blood or marriage for the purposes of a wrongful death case, so an adopted child or siblings would be considered the same as a biological child or sibling.
Parents who abandoned the decedent in childhood are not allowed to file a wrongful death claim.
If there are no surviving family members of the decedent, their estate is able to bring the wrongful death case to court.
Time Constraints For A Louisiana Wrongful Death Claim
Louisiana’s statute of limitations regarding wrongful death claims gives the family members of the decedent or the decedent’s estate one year to file a wrongful death claim. After that, though a wrongful death claim can still be filed, the defendant will be able to file a motion to dismiss the claim as time-barred, and the court will almost certainly grant it.
For more information, check out our post: Are Wrongful Death Insurance Settlements Taxed?
Let Greenwald Law Firm Handle Your Wrongful Death Lawsuit
Joseph Greenwald, Jr. of the Greenwald Law Firm has practiced law in Louisiana and Mississippi for nearly 20 years. If you have questions about wrongful death or about your specific case, call a Shreveport personal injury lawyer at our firm at 318-383-0094, or request a free consultation at our conveniently located Shreveport office.