Filing Wrongful Death Claims
Wrongful death cases must be brought by the personal representative of the decedent on behalf of the surviving:
- Spouse;
- Children;
- Parents of the decedent.
What is Necessary to Successfully Prove the Claim
If you have recently lost a loved one and you are a legal beneficiary, consult an attorney to discuss the specifics of the case. These types of cases are intricate and might be difficult to prove depending on the circumstances. The lawsuit must effectively demonstrate the following three elements:- Negligence – The defendant must have acted negligently, unreasonably, or must have failed to perform necessary and reasonable steps to prevent the death.
- Cause – Your loved ones death was fully or partly caused by the defendant’s negligence.
- Damage – You’ll have to show that your loved one’s death personally affected you and you suffered economic and/or non-economic losses.
How do I calculate damages?
Because of the two-year statute of limitations to bring a wrongful death case in Ohio, it’s important to get started as soon as possible. While this can be painful for loved ones who must keep revisiting this painful incident and collect evidence of damages, it’s a vital step in the wrongful death claim process.
According to the Ohio Code 2125.02, wrongful death damages may include losses and expenses related to:
- Medical bills prior to death;
- Funeral and burial expenses;
- Future wages and other earnings of the decedent;
- Loss of services that family must now pay for (cleaning, daycare);
- Loss of the society of the decedent, which includes loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education that the surviving spouse, children, parents, or next of kin experience;
- Loss of prospective inheritance to the decedent’s heirs;
- Mental anguish incurred by a surviving spouse, children, parents, or other next of kin.
Types of Compensable Damages
Damages for a wrongful death claim aren’t limited to funeral expenses. Damages aim to address monetary losses and expenses associated with the death like medical bills, loss of deceased’s future wages and benefits (pension, insurance, etc.) and more. But damages in a wrongful death action also address the non-economic impact of the death on the surviving family members. This includes mental anguish and other emotional losses that family members experience as a result of the death. Some of these damages are intangible and hard to calculate. That’s why it’s essential to prove just how much your loved one’s death has affected your current life as well as your future.Cap on wrongful death damages?
Earning Capacity
One common form of compensation is expected earning capacity of the deceased. These damages usually commence at the date of death (or sometimes the date of injury that eventually led to the death) and could continue for a specified period of time or even up to retirement age.Loss of Services
These are services provided by the deceased for which the survivors must now make special arrangements to complete them. An example might be the loss of childcare, when the parent was the primary caretaker of the children. Having to hire a babysitter or put the children in daycare would result in unexpected expenses. It might also include loss of household chores and responsibilities. For instance, having to hire someone to take care of these tasks. There is generally no cap on economic damages in most states, like the two above and reasonable funeral and burial expenses. However, where Ohio differs from some states is that it doesn’t cap noneconomic damages in wrongful death cases like the two below.Loss of Society and Mental Anguish
The loss of the society of the deceased addresses ways in which the beneficiaries are deprived. For a spouse it could be the loss of companionship and consortium. For a child it could be the loss of attention, protection, advice, guidance, counsel and instruction. The mental anguish incurred by a surviving spouse, child or parent may also be included as noneconomic damages recoverable by surviving family members.How Wrongful Death Settlement Distributed to Survivors
A survival action seeks to recover damages that the decedent suffered prior to death. It acts in place of a personal injury claim the decedent would have otherwise been able to pursue if he or she survived. Damages are recovered for the benefit of the decedent’s estate.
The damages recoverable in a survival claim will go to the estate, and the distribution of damages will be dictated by the decedent’s will, if he or she had one. Check out our visual representation of distribution of wrongful death and survival actions.
If there is no will, intestacy laws will dictate distribution. The spouse will recover the whole amount if there are no children, for example, and if there is no spouse but there are children, then the children will recover the whole amount.
Wrongful Death – Elements in Ohio
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:
- Defendant owed deceased a duty of care;
- Defendant breached that duty of care;
- Breach caused the deceased’s fatal injuries;
- The deceased and/or survivors suffered damages.
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.