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.

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, a wrongful death lawsuit is brought by the family members of the deceased person. A criminal case is filed by a prosecutor. For example, if someone was killed in a drunk driving incident, the person driving drunk would likely be liable in a wrongful death suit brought by the deceased person’s family, but also 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. The individual seeking compensation is referred to as the “plaintiff”. The party at fault is referred to as 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 are left to 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. They are the same elements that must be proven in a standard negligence case: duty, breach of duty, causation, and damages.

Proving Duty

In order to prove the defendant is liable, the defendant must have owed the decedent a duty of “due care”. What this means is 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 was killed 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 presence of a duty of due care will be decided by a judge, and not a jury. 

Proving Breach of Duty

After duty is determined to have existed, the next step is to prove that the defendant breached that duty. 

Going ahead with 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. Not paying attention to the road, or violating established rules of traffic, qualify 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.

Proving Causation 

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 would still have to present evidence that it was the defendant’s car specifically which caused fatal injury to the decedent.

Proving Damages

In other civil suits involving negligence or personal injury, it is necessary to prove that damages were actually suffered. In wrongful death cases, it is not necessary to prove damages if a breach of duty and causation are determined to exist, as damages are assumed due to the death of the decedent. 

Damages in Louisiana Wrongful Death Cases

If a breach of duty and causation are proved in a wrongful death lawsuit in Louisiana, there are two potential types of damages available: economic and non-economic.

Economic losses are defined 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 May File A Wrongful Death Claim in Louisiana?

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 of the decedent
  • The surviving children of the decedent 
  • If the decedent has no surviving spouse or children, the parent or parents of the decedent
  • If the decedent has no surviving parents, 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?

Contact the Greenwald Law Firm for your Wrongful Death Case in Shreveport

Joseph Greenwald, Jr. has practiced law in Louisiana and Mississippi for nearly 20 years. If you have questions about wrongful death or about your specific case, call us at 318-383-0094, or request a free consultation at our conveniently located Shreveport office. 

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