Category Archives: Wrongful Death

What Happens if Someone Dies in a Car Accident?

Unless you’ve lost a loved one in a car wreck, you can never fully grasp the shock, sorrow, and overwhelming feelings that accompany such a tragedy. After experiencing this traumatic, life-altering experience, you may wonder how to cope and what steps are next. At the law offices of Dan Rose, we provide compassionate and experienced legal assistance to individuals and families affected by fatal car accidents. Oftentimes, a death in the family due to a car accident can be emotionally debilitating and financially destructive.

In the event a loved one perishes in a wrongful car accident death caused by another person’s recklessness and negligence, an experienced attorney can help you seek compensation from the at-fault party to cover expenses like funeral costs, preserve the family’s financial stability, and give your family some peace of mind.

What is a Wrongful Death Claim?

You may not be immediately contemplating finances after the death of a loved one, as in many circumstances, funeral and burial insurance are already in place to cover related expenses.

Although if a loved one is killed due to someone else’s negligence, the family really shouldn’t have to bear any of the costs like medical bills and funeral expenses.

You may wonder, “Can I receive compensation?” in the event a loved one has passed away due to a fatal collision.

In California, wrongful death is defined as a death resulting from the negligence of another individual or entity. Cases of wrongful death are civil in nature, and therefore, they are adjudicated (or processed) separately from any criminal charges. In these cases of vehicular manslaughter (due to drunk driving, for example), the criminal case is pursued independently from the wrongful death civil suit. Under just circumstances, guilty parties can be held criminally and civilly liable for the same incident.

Be aware that criminal charges do not have to be brought against the negligent party in a wrongful death case for the family to be eligible to pursue a wrongful death case. There are many possible circumstances for wrongful death claims, but auto accidents are the most common source of civil litigation of this sort.

Who Can Seek and Claim Compensation for a Loved One’s Death in a Car Accident?

According to the Insurance Institute for Highway Safety, Highway Loss Data Institute, California was at the top of the list for the greatest number of fatal crashes for 2019. In the vast majority of cases, the surviving spouse, domestic partner, or child is the only heir. Even if the deceased did not have a spouse, domestic partner, or children, their parents or siblings might be eligible to file a claim as well as inherit property (if there is no spouse or domestic partner to claim it). Stepchildren may also be eligible to file a wrongful death claim, children of putative spouses, putative spouses, and parents.

What Kind of Damages Can You Recover?

If you file a wrongful death lawsuit, surviving family members (and individuals discussed above) may be entitled to certain financial damages.

Potential damages resulting from the wrongful death of a loved one may be:

  • Maintaining the family’s finances and the loss of help completing household chores and services the deceased may have
  • Each claimant’s expected loss of financial support
  • The individual’s death causes an absence of affection and emotional support, resulting in emotional duress, pain, and suffering for the claimant(s).
  • Individual expenses due to a loved one’s death, such as funeral costs

Note: death claims differ from claims by a deceased person’s estate; however, both types of claims may exist simultaneously according to the circumstances.

Is there a Statute of Limitations?

When a loved one dies suddenly, the grieving process takes precedence. When you’re mourning the loss of a loved one, it is understandably jarring and difficult to consider taking legal action; however, the statute of limitations does exist. California has a statute of limitations to sue (or be sued), which is two years from the date of injury or death. A wrongful death claim’s success may often be dependent on obtaining skilled and professional representation. You are entitled to total and just compensation, but it can take years to pursue a claim. Bearing in mind how complex these cases can be, it is critical to consult with a skilled and trusted attorney after the wrongful death of a loved one. Take advantage of a complimentary consultation today with an experienced attorney at The Dan Rose Law Offices.

Filing a Lawsuit Against a Deceased Defendant

If you suffered injuries or losses because of someone else’s negligence, you may have the legal right to bring a claim to receive both economic and non-economic damages. However, in some cases, the liable party dies as a result of the accident or during the process of filing a legal claim. Learn more about what your options are regarding filing a lawsuit against a deceased defendant.

The Estate of the Deceased Defendant

If you experienced any type of personal injury that resulted in injuries or losses due to someone else’s carelessness or recklessness, you have a right to become whole and receive both justice and compensation. However, if the negligent party dies, you cannot sue them directly. However, you do have the right as a victim to file a claim against their estate, which is the remaining assets that they leave behind when they die.

Motion for Scire Fascias Substitution

A motion for scire fascias substitution is a legal action that specifically requests that the court substitute a party as a representative for the deceased party’s estate. If the negligent party dies either at the scene of the car accident (or any other type of accident) or prior to filing the lawsuit, the party that will be held responsible and liable to compensate the victim will be the deceased’s estate. In some cases, there may already be a probate case pending. If this is the case, then the victim has the legal option to either intervene in that probate case or file a different and separate civil case along with the motion for scire fascias substitution.

Finding the Executor of the Deceased Defendant’s Estate

One of the other challenges may be finding the executor (representative) of the deceased defendant’s estate. If the deceased person has their estate going through the probate process, this may be easier; however, there are instances where there is no case in the probate court which makes it more challenging to find the executor of the estate.

Legal Challenges Against a Deceased Defendant

There are several complex legal challenges that may occur when a victim files a lawsuit against a deceased defendant. Because there is an inability to interview the defendant regarding the accident, a great deal of information or evidence may be lost due to. Additionally, finding the executor of the deceased defendant’s estate can also prove challenging. Finally, a victim will have to navigate not only a personal injury case but, in some cases, the probate process to winning compensation for their injuries and losses resulting from someone else’s negligence.

Contact an Experienced Personal Injury Attorney

Our experienced attorneys at The Law Office of Daniel H. Rose can navigate both the personal injury portion of your claim as well as the probate portions of this potential lawsuit. It is important to consider visiting with a personal injury attorney as soon as possible due to the complexity and challenge of cases where the defendant has died. If you suffered injuries or losses related to another person’s negligence who has since died, consider visiting with our personal injury attorneys and legal team at 415-946-8900 or online today.

Can Minors File a Wrongful Death Case?

Under California Code of Civil Procedure 377.60, a minor who is the child of a deceased person who was a victim of someone else’s negligence, may have the legal right to file a wrongful death case under certain circumstances. If your parent died as a result of someone else’s recklessness or carelessness in the state of California, you may have the right to file a wrongful death case. Learn more about your legal rights below and by contacting an experienced wrongful death attorney today.

Wrongful Death

Wrongful death is any circumstance in which a person dies as a result of injuries inflicted upon them directly resulting from another person’s negligence or recklessness. Wrongful death cases can include deaths resulting from car accidents, medical malpractice, trucking accidents, slip and fall injuries, dog bite injuries, nursing home abuse and neglect and more. Any instance where a person dies as a direct result of someone else’s action or inaction can bring about a wrongful death claim in California.

Who May File a Wrongful Death Claim?

In California, a spouse, domestic partner, children, grandchildren, and other minor children who were at least 50% financially dependent on the deceased victim (including stepchildren) may have the legal right to file a wrongful death claim.

How Minors File a Wrongful Death Claim

If a minor child loses their only parent, or both parents, as a result of someone else’s negligence, they will first need to have an establishment of guardianship with another adult. A guardian will be named by the court if the parents did not make any provision for their child regarding guardianship in the event of their death. Once a guardian is established under the law, they will act as the legal representative of the child, and may file a wrongful death action on behalf of the child with respect to the loss of the child’s parent.

Statute of Limitations for Wrongful Death Claims

The statute of limitations (deadline by which a person must file a claim or lose the legal right to do so) in the state of California is two years from the death of the victim. While it may seem that two years is a long period of time, wrongful death claims often take a considerable amount of time to develop and can include detailed investigations involving expert witnesses. Time is of the essence, and if you have the legal right to pursue a wrongful death claim on behalf of a minor child, you should consider visiting with an experienced California wrongful death attorney as soon as possible.

Contact an Experienced Wrongful Death Attorney

Any loss of life can be devastating to family members. When a loved one is a parent, the minor child has lost an incredible amount of time, love, and guidance from them. If you believe that a minor child has the right to file a wrongful death case on behalf of their parent or guardian, contact The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you understand your legal rights and that you receive justice. Contact our experienced wrongful death attorneys at 415-946-8900 or online today.

How Do You Prove Wrongful Death?

If your loved one died as the result of another person’s negligence, you may have the legal right to pursue justice and compensation on their behalf. While no amount of money will ever bring your loved one back, a wrongful death claim can hold the responsible party accountable for your tragic and unexpected loss. The law of California allows family members to pursue a wrongful death claim if they can provide evidence that the other party’s negligence directly caused their loved one’s death. Learn more about wrongful death cases, and how to ensure your legal right to pursue justice remains protected.

State of California Wrongful Death Laws

The wrongful death laws in the State of California are found in the California Code, Code of Civil Procedure – CCP § 377.60. In order to prove that you have the legal right to compensation following your loved one’s death, you must provide evidence to meet a burden of proof that their death occurred as the direct result of someone else’s negligence. It is important to note that a family does not have an obligation under the law to prove that their loved one’s wrongful death occurred as the result of negligence beyond a reasonable doubt, as in a criminal case. Instead, a family of a loved one who died a wrongful death in the State of California must simply prove that the death is at least 51 percent likely the result of the negligence of another person. This burden of proof is known as “preponderance of the evidence.”

Proving a Wrongful Death Claim

In order to prove a wrongful death claim, the family of the person who died must prove the following:

  • The negligent party had a duty of care owed to others, including their deceased loved one
  • The negligent party breached that duty of care
  • The breach of that duty of care was directly responsible for their loved one’s death
  • The result was the death of their loved one, as well as economic and non-economic damages

It is important to note that some wrongful death claims arise from intentional violence instead of negligence. These cases may result in a criminal case; however, many victims still have the legal right to pursue a civil case as well to receive compensation for their loved one’s injuries and their losses. Evidence to prove a wrongful death claim will include accident reports, police reports, independent investigations, surveillance footage, witness testimony, medical notes from those who diagnosed and treated your loved one, employer information providing evidence on lost wages, funeral expenses, and legally complex calculations regarding pain and suffering and the loss of consortium of family members.

Contact an Experienced Wrongful Death Attorney Today

If your loved one died as the result of another person’s negligent or intentionally violent actions, you may have the legal right to pursue a wrongful death case in the State of California. Contact the experienced wrongful death attorneys today at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you receive the full compensation you deserve and ensure your loved one receives justice. Contact our experienced attorneys today at 415-946-8900 or online.

Difference Between Personal Injury Cases and Wrongful Death Cases

If you suffered injuries in an accident due to someone else’s negligence or if your loved one died as a result of someone’s negligence, you may have the right to file either a personal injury case or a wrongful death case to receive justice and compensation for your injuries and losses. Understanding the difference between personal injury cases and wrongful cases can help you better understand which type of case is right for you.

Personal Injury vs. Wrongful Death Cases

When you suffer injuries or losses as a result of someone else’s negligence, you have the right to file a personal injury lawsuit in order to receive compensation for your medical bills, lost wages, property damage, and pain and suffering. If a person dies as a result of their personal injuries resulting from someone else’s negligence, the family of the deceased person has a legal right to file a wrongful death case. A wrongful death case the same as a personal injury case a victim would file if they had lived after the accident. A family of a victim who dies due to someone else’s negligence may have the legal right to receive compensation for funeral expenses, remaining medical bills, loss of wages, property damage, loss of consortium, loss of companionship, and pain and suffering of the victim.

Types of Personal Injury Cases and Wrongful Death Cases

Many personal injury cases and wrongful death cases stem from similar accidents.. The difference is that in some cases, a victim receives serious injuries (personal injury cases) versus when a victim passes away from their injuries (wrongful death cases). Some of the types of accidents that result in either personal injury cases or wrongful death cases include the following:

  • Car accidents
  • Trucking accidents
  • Motorcycle accidents
  • Pedestrian accidents
  • Bicycle accidents
  • Construction accidents
  • Manufacturing defects
  • Defective drugs
  • Medical malpractice
  • Railroad deaths
  • Defective medical devices
  • Drunk driving accidents
  • Premises liability accidents
  • Slip and fall accidents
  • Nursing home neglect and abuse cases
  • Product liability cases

Parties Who May File a Personal Injury or Wrongful Death Claim

Any person who suffers injuries as a result of someone else’s negligent, careless, or reckless actions may file a personal injury claim in order to receive compensation for their injuries and losses.

If a person dies as a result of their injuries related to an accident due to someone else’s negligence, some family members may have the legal right to bring a wrongful death claim on behalf of their loved one. In most cases, spouses, children, or siblings of the victim can bring a wrongful death claim. In the instance that none of those parties exist, a court may appoint a plaintiff ad litem to prosecute the negligent party in the wrongful death claim.

Contact an Experienced Attorney Today

If you suffered injuries or if you have a loved one who died as a result of someone else’s negligent actions, you may have the right to file a personal injury claim or wrongful death claim. Consider visiting with our experienced attorneys at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you received the full compensation you deserve. Contact our experienced attorneys at 415-946-8900 or online today.

How Can Hearsay Issues Affect a Wrongful Death Case?

Hearsay is a statement made outside of the court that is then presented as evidence by another person during a trial for purposes of submitting that statement as evidence and as fact. In most cases, hearsay is typically inadmissible evidence when a proper objection is made in a timely manner. However, in wrongful death cases, a deceased plaintiff (victim) may offer testimony prior to his or her death. Learn more about hearsay and how it may impact a wrongful death case.

Wrongful Death Cases

A wrongful death case is one in which the victim dies from the injuries inflicted upon them resulting from someone else’s negligence. If the victim lived, they would have had the legal right to bring a personal injury case to receive justice and compensation for their injuries and losses. Because the victim died, the family members of the victim have the legal right to pursue this justice and compensation on behalf of their loved one.

Testimony of the Victim

Many wrongful death cases include testimony from different parties as well as evidence that is presented to the court in order to make a determination of liability and responsibility for negligence with respect to an accident. If the victim lived, they would have had the legal right to testify on their own behalf. However, due to the fact that they passed away from their injuries prior to a trial, the question remains whether or not any statements made by the victim can be introduced as evidence.

Hearsay Exception – Dying Declaration

There is a hearsay exception which is the “former testimony” exception, where evidence is admissible if the other side had an opportunity to cross-examine or introduce the testimony at a prior time. See Fed. R. Civ. P. 804(b)(1); Conn. Code Evid. § 8-6(1); Mass. G. Evid. § 804(b)(1); R.I. R. Evid. 804(b)(1); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).

However, the more common hearsay exception that occurs within wrongful death cases is the “dying declaration” exception. If a victim made a statement under the belief that their death was either “imminent” or “impending” and their statement was directly related to the cause or circumstances surrounding their death, it can be admitted as evidence as an exception to the hearsay rules. See Fed. R. Evid. 804(b)(2); R.I. R. Evid. 804(b)(2).

It is important to note that Dead Man Statutes (allowing a hearsay exception for the admissibility of a decedent’s statements) is available only in Connecticut, Massachusetts, and Rhode Island. While some plaintiffs still attempt to admit the testimony of a deceased victim under these Dead Man Statutes, in most cases, they will not be allowed within a wrongful death case.

Contact an Experienced Attorney Today

If your loved one died as a result of someone else’s negligence, you may have the legal right to submit their testimony at a wrongful death trial under a “dying declaration” exception to the hearsay law. The laws surrounding wrongful death cases remain complex and legally challenging. Call our experienced attorneys at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that the legal rights of your loved one remain protected. Contact our experienced attorneys at 415-946-8900 or online today.

What Are Non-Economic Damages in Wrongful Death Cases?

If your loved one died as a result of someone else’s negligence, as a family member you may have the legal right to file a wrongful death lawsuit to receive justice in the State of California. While no amount of money will bring back your loved one, you may have funeral expenses, remaining medical bills, lost wages during the time your loved one was too injured to work, or property damage. However, as a family member who lost a loved one, you may have the legal right to also bring non-economic damages as part of your wrongful death lawsuit. Learn more about the different types of non-economic damages that you may have the legal right to receive in a wrongful death case.

Understanding Non-Economic Damages

Non-economic damages represent more intangible items that represent the loss that a family experiences following a loved one’s death. While these items are truly non-economic, the courts will attempt to assign a financial amount to these damages in an attempt to allow a family to receive justice because they lost their loved one due to someone else’s negligence, carelessness or recklessness. Some of the types of non-economic damages are explained in more detail below.

Spouse and Family Loss

When someone loses a family member, they lose the ability to share a life with them. Spouses lose their life partner, and children lose a parent to guide them through life. This loss of comfort, loss of instruction for children, loss of services in the home and in life, loss of guidance, loss of support, loss of counsel, and loss of training for children is devastating. This loss of consortium and loss of companionship impacts the family permanently. The calculations regarding loss of consortium and loss of companionship are incredibly complex and legally challenging. Visiting with an experienced wrongful death attorney can help you understand your legal rights and realize how you may have the right to file for these types of non-economic damages in your case.

Loss of Income

Your loved one likely was unable to return to work following their accident, resulting in lost wages. Lost wages may include not only a salary or wages, but also missed bonuses, missed promotions, lost employee contributions, lost pension contributions, lost vacation or sick leave, lost transportation allowances, and more. However, if your loved died, then you may also have the ability to include loss of future income as part of your wrongful death claim. The calculation for the loss of future income can also be legally challenging and complex.

Contact an Experienced Attorney Today

There are other types of non-economic damages including the pain and suffering your loved one experienced as a result of their injuries in their accident. Visiting with an experienced attorney can help you better understand what types of non-economic damages you may have the right to file in your wrongful death case, and what amount of compensation you may receive on behalf of your loved one. We understand you are likely grieving during this emotional time and look forward to helping you through this process. Call our experienced attorneys at The Law Office of Daniel H. Rose. We will work on your behalf to ensure that you received the full compensation you deserve. Contact our experienced attorneys at 415-946-8900 or online today.