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.
The family must first open an estate in the probate court which will ultimately benefit the survivors. Then, the probate court will appoint an administrator to manage the estate and to file reports with the probate court. A wrongful death action is brought by the administrator of the estate. Any survival actions are also brought by the administrator of the estate, but are considered assets of the estate. Any money received from the wrongful death lawsuit is distributed according to statute, whereas money received for survival claims are distributed according to the last will and testament, if one exists.
The chosen administrator will select a lawyer to file a suit. A wrongful death lawsuit is actually an asset of the estate. This means that any settlement money received from the lawsuit will be distributed according to Ohio’s laws on wrongful death estate distribution or according to the deceased’s will, if one exists.
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.
If pursuing a case in the Cleveland area, work with a lawyer able to explain what types of evidence you’ll need to collect and help you with the collection process. In addition to things such as proof of lost wages and medical bills, the case might require field experts such as economists and mental health providers to demonstrate the full impact of the decedent’s death.
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.
Calculating economic damages like medical bills and funeral and burial expenses is relatively straightforward. Evidence of bills and receipts related to these damages can help establish a fair amount. Lost future wages may be fairly straightforward, though it’s important to consider the amount of years the decedent would have worked and other factors that might influence wages.
Surviving family considering a wrongful death claim should speak with an attorney for help calculating a fair amount for noneconomic damages like loss of society and mental anguish that survivors experience. These do not have a definitive price tag and can be difficult to calculate.
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.
Free Case Evaluation with a Wrongful Death Attorney
If you recently lost a loved one due to someone else’s negligence, we invite you to call Ryan, LLP in Cleveland, Ohio. We can review your potential case, provide specific answers to your questions, and act as your legal representative. To schedule a free consultation, contact us today at 877-864-9495.
About the author of this article: Thomas Ryan