To understand the elements of a wrongful death action, it is helpful to understand the language that creates the wrongful death cause of action. Ohio Revised Code Section 2125.01 states, "When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensured...shall be liable to an action for damages."
Generally, the statutes establishing a wrongful death action show that the action mirrors a personal injury case. It says that the action allows claims that could've been brought had the person not died to continue to exist after their death.
In these, there are four elements that the plaintiffs need to prove to win their case:
Surviving family members must present sufficient evidence to establish these elements. Also keep in mind that these cases may involve wrongful death actions to pursue compensation related to survivors’ damages, as well as survival actions that pursue damages the deceased suffered (basically a continuation of a personal injury claim the deceased would otherwise be entitled to pursue).
Wrongful death damages are distributed to the decedent’s survivors regardless of the decedent’s will, while survival action damages go to the estate and are distributed based on the decedent’s will. View this graphic for a visual of how damages are distributed.
Wrongful death actions can be brought for a variety of different types of negligence including car accidents, premise liability, medical malpractice and product liability claims. To establish negligence and damages in these cases, plaintiffs may present evidence such as:
The wrongful death case also needs to show a direct causation between the death and the injuries they sustain. An expert witness may be important in these cases, as well as certain evidence listed above.
Hiring an attorney is a good first step. An attorney can help survivors investigate the death and establish a case to prove the different wrongful death elements. Ryan, LLP is prepared to handle wrongful death cases in Cuyahoga County and throughout Ohio and provides free consultations to review the case. Contact our office at 877-864-9495 set up your appointment with an attorney today.About the author of this article: Thomas Ryan