Faqs

“Wrongful death” is a phrase lawyers use to when a person gets killed by someone else’s wrongdoing. A wrongful death case is brought by the spouse and/or children of the person who was killed. This type of case specifically means that when someone died, there was a person or corporation who caused the death. For example, a car striking the side of a semi-truck at Wellsona road in San Luis Obispo, California could later result in a wrongful death case against the truck driver and the truck driver’s company for not having a truck with working warning lights on the side of the truck.

Wrongful death cases are valuable cases, because the goal of the case is to compensate for the loss of love, companionship, comfort, care, assistance and numerous other affections that the victim would have provided their family if they had not been killed. Lawyers often group all of these categories together. They should NOT be grouped together. California Civil Jury Instruction (CACI) 3921 states: Juries must decide on a reasonable amount for every single type of loss. This is a very common mistake made by firms that do not regularly handle wrongful death cases. These cases are often are worth seven figures, because the death should not have occurred, and the million dollar verdict or settlement is California’s rule to replace the loss of a loved one.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is filed because someone was killed by someone else’s wrongdoing, and the family is seeking justice from the person or corporation who caused the death. A family is devastated by the loss of their love one, and seeks justice through the court system. The justice is in the form of a lawsuit that places the blame on the person or corporation who caused the accident.

A wrongful death lawsuit is only way of telling corporations that when they do not follow safety rules or regulations, they will be held accountable. These cases can be filed anytime there is something that is done that is unreasonable. The suit will be brought by the children or the spouse of the victim. One firm can represent all the children and the spouse if there is a waiver of conflict form signed.

There are two ways to litigate cases. There is the quick way, and the thorough way. There are firms that avoid trial and take lots of cases that will try to do little investigation and try to settle the case quickly. These firms will always take your case, but they will try to wrap up the case in a few months (and generally get significantly less compensation — as little as 15 percent of the value of the case). Insurance companies defending wrongful death cases are thrilled when they are up against one of these law firms. Why? Because they know they will be able to settle the wrongful death case cheaply compared to what it is actually worth.

The firms that maximize the value of a wrongful death case are the ones who will spend time, money and resources on investigation, evaluating plans, looking at product design and meeting with experts. This is the type of firm you want to hire if you have a wrongful death case, although the process will take longer. The average time for a thorough California wrongful death case is closer to 1 ½ to 2 years. The length of your case will depend on the specific facts of the case. Our firm has had wrongful death cases resolve for $2 million plus in a only few months, and then had wrongful death cases take more than two years before resolving for seven figures. It seems like a long time, but the victim only has one chance to to make the corporation pay enough that they will not be so careless in the future.

According to California law a civil suit filed by certain parties — usually a son, daughter, wife or husband of the decedent — is the only place a wrongful death lawsuit can take place. Wrongful death is a financial way to compensate someone for their loss. If a criminal case is going on as the result of someone dying, it will usually be called a manslaughter case.

The wrongful death lawsuit can be filed by someone standing in the place of the person who was killed. The deceased person cannot represent themselves, and so a “representative” is allowed to bring the lawsuit in their place. Who can be a representative in California when someone is killed? Here are some guidelines:

• The family members of the deceased: This means the spouse, children, life partner or any person who was a dependent on the person killed. These are the closest family members, and if any of them exist, they have the right to bring the case first.
• Parents: If the person who was killed has no spouse and no kids, then the parents of the deceased can be the representatives for the lawsuit.

Other representatives: The rules of who can file a wrongful death suit are located in the California Civil Jury Instructions, a set of instructions that are regularly called CACI.

A representative of the family member who died will file the wrongful death case. The representative files paperwork with the proper court called a complaint. The complaint alleges all of the wrong things that lead to the death done by the other person or corporation.

You need to speak with an attorney before you file a wrongful death lawsuit. You can file a lawsuit without an attorney in a format called in Pro Per. However, not knowing the rules and having the defense see that you do not have an attorney will make your case significantly less valuable.

A wrongful death lawyer tries to increase the value of the wrongful death case for his client, and the firm. The two focuses for the lawyer are how responsible is the party that caused the death, and how much money should compensate the family for the loss of the loved one.

Most attorneys will take a wrongful death case on a contingency fee basis, meaning you will not have to pay the lawyer upfront. The lawyer will take a percentage of the money at the end of the case. This is helpful because then the lawyer and your interests are aligned. You both want the best value of the case possible.

The law office will complete and file the following things:

• Complaint
• Civil Case Cover Sheet
• Summons
• If they are a minor, paperwork that appoints a guardian ad litem for the minor will need to be filed (minors who are under 18 cannot bring a lawsuit without a guardian)
• If the case is filed in Los Angeles, a civil case coversheet addendum and statement of location will need to be filed.

Each of these items of paperwork has a specific purpose. The most important is the complaint, as it alleges all the wrongdoing and how it leads to the death of the family member.

All wrongful death cases have a statute of limitations. This means there is a certain time period after someone dies to file a lawsuit. The statute of limitations depends on where the death happens. California’s statute of limitations is two years after the date of the original incident. After this time period, a complaint will be considered too late, and the lawsuit will not be able to go forward. This is what is known to attorneys as “time barred” or “past the statute of limitations.”

The statute of limitations is different if the death was caused by the government. The legal term is “governmental entity,” which means any government worker or agency that caused the death. The government worker or agency must be at work, or have their work be the cause of their death. If a governmental worker causes an accident while not working, the standard 2 year statute of limitations applies.

The average settlement for a wrongful death depends widely on the facts. However, our firm tends to evaluate the wrongful death cases as above seven figures. This means most wrongful death cases are worth at least $1 million in value.

There is no cap on California wrongful death cases. However, alleging that the death of someone is worth a certain amount of money in a lawsuit does not do much. There are two groups of people that will possibly decide the value of the wrongful death case.

• A jury: If the insurance company defending the lawsuit does not offer an amount in settlement, or if the amount offered in settlement is too low, a jury will give a verdict that states the value of the wrongful death case.
• An insurance adjuster: If the insurance company offers enough money prior to the case going to a trial by jury, a victim’s family can be compensated in this manner. This will have the insurance company’s valuing the loss.

Because there is no cap, it will be one of these two factors to determine the value of the wrongful death case.

One clarification is that when lawsuits allege a certain amount of money in the beginning, that number does not have much significance. When lawsuits allege damages for $5 million or $50 million, generally it is a figure put in the complaint designed to make headlines. This is not a number that has much weight in determining the value of the case.

How Do You Prove Wrongful Death?

Wrongful death is proven by evidence that is allowed in the courtroom. Types of this courtroom evidence include witness testimony, photos, videos, experts, treating doctors and medical experts. All of these pieces of evidence to prove a wrongful death are designed to answer four simple questions.

The four questions are the four questions that a jury will answer about the case. A wrongful death case will have four basic questions:

1. Was the defendant negligent?

The defendant in the wrongful death case is the person who caused the death. Negligence is a legal word that means a reasonable person would not have done the same thing in similar circumstances. The jury is asked whether the defendant was negligent. Therefore, the jury is deciding whether the defendant did something that a reasonable person would not have done.

The jury can answer either yes or no. The jury is 12 people, and a majority of nine is needed to decide whether the evidence has proven the defendant was negligent in California. If nine jurors or more decide that the defendant was negligent, the jury then answers question 2.

2. Was the defendant’s negligence the cause of the harm?

A defendant can be negligent, and not cause the wrongful death. Therefore a jury must answer the question that the negligence of the defendant is what caused the death. So the jury is answering did the defendant do something a reasonable person (or corporation) would not have done, and that is what lead to the killing.

The cause can be one single thing that leads to the death, or it can be multiple things that lead to the death.

For example: A equipment operator on a construction site backs his ore hauler truck over another construction worker (first act of negligence). It is later found out that the backup alarm for the truck was not working properly (second act of negligence). Each one of these acts is something a reasonable person should not have done. The heavy equipment operator should not have backed up his truck without checking it was clear behind him and the alarm company should have made alarms that continue to function. Both of these acts were negligent and caused the death.

3. What were the economic damages?

When someone dies wrongfully, there is money that is owed as a debt to the family. Part of proving wrongful death is the amount of the debt created by the wrongful acts. There are two types of debt that is created. One is economic (meaning money that you can calculate easily) and the other is non-economic.

Economic damages are medical bills, funeral expenses and loss of income to the family members of the person who died.

For example, if a construction worker dies because a chain breaks on a construction site, and a heavy 3 ton beam falls on a worker and kills him, part of the proof is how much his funeral costs, How many medical bills did he have to pay before he died? How much money was he going to provide to his wife and kids before he retired? All of these get added up, and are computed as answered as proof to the jury that those were the value of the economic damages.

4. What are the non-economic damages?
Non-economic damages are the things that cannot be easily calculated, and are the most significant portion of the case arising out of a death. These include loss of care, love, companionship, assistance, protection, affection, society and moral support By law, non-economic damages must be awarded by a jury. It is the law in the state of California that a jury will provide compensation if negligence and causation (1 and 2) are proven.

To prove non-economic damages, video, pictures, stories, witness testimony, friends, family and neighbors will be presented in the courtroom. The goal is to establish small stories that relate to every aspect of life that was taken away from the spouse and kids of the person who died. Each area of the non-economic damages will need to have pictures, stories and proof.

How Much Is a Wrongful Death Lawsuit Worth?

The true answer is: it depends. We would rather give you a truthful response than a simple blanket formula that is incorrect. However, we can provide some broad guidelines of how much a wrongful death lawsuit is worth. Here are four factors that will adjust the valuation of a wrongful death lawsuit.

1. Fault: How much was the person or corporation who caused the accident in the wrong?

This is important. The law in California makes corporations pay a percentage of the amount they are at fault. This means that for a wrongful death case, the person who caused the accident will have to pay the largest amount to settle the case, or after a jury decides the case.

2. Type of person: What was the character of the person who was killed?

The value of cases is more or less depending on how much a jury would like them. If a person is well liked, a valuable member of the community and has friends that say kind things about them, their loss will be valued higher than someone who has an addiction to drugs, multiple divorces and a difficult employment situation.

3. Employment: How much money were they making a year?

When a person is killed, the amount of money they made is crucial. This has a large effect on the valuation of a wrongful death case. The value of the case goes up by the amount of money the person was making per year, as that support is no longer provided for the family. This gets added together to get to the overall value of the case.

4. The law firm: How legitimate is the law firm hired by the family?

This is the sad truth. It should make no difference, but it does. A wrongful death lawsuit is worth different amounts depending on the lawyers who represent you. This is because the individual or corporation that is defending the lawsuit will size up the law firm that is representing the family. If the firm is one who has multiple trials with large verdicts, the case is worth significantly more. If the law firm does not have much trial experience, is a younger firm, practices other areas of law or simply does not have a reputation of being a “heavy hitting” trial firm, the case is worth significantly less. The best way to find this out is call a lawyer who does not practice personal injury or wrongful death cases, and ask who the best litigation firm is in town.

These four guidelines are rarely communicated to the client. We are sharing these with you, because these are things that all lawyers know that potential clients should know (but don’t).

1. Think about safety

Thinking about safety is one of the best ways to prevent and reduce construction site accidents.

A majority of construction site accidents are caused by moving materials. Beams falling, chains breaking, sudden movements of machinery, failures of backup safety systems, and most importantly, human error.

Thinking about how things may go wrong before they go wrong is the best method to avoiding an injury on a construction site. Anytime something can move on a construction site, it is your job to consider how it may move and cause you harm. Then do your best to stay out of the way.

Stay up to date on construction methods

On a construction site, your job often will put you in places where you are in harms way if something goes wrong. You want to make sure you have the newest techniques, training, and operating manuals for the machinery that is being operated. Often, even doing internet searches can turn up operating manuals for machines that can show you the newest and safest techniques.

Talk to someone above you

Overseers, general contractors and other superiors do NOT want someone hurt on their jobsite. It makes it harder for them to get additional contracts, can make their insurance go up, can make them have to pay more in workers compensation, and harms their reputation. Use this information to your advantage.

Statements you can use to a manager or boss on a construction site to reduce accidents

• Example: I am concerned about these chains breaking, if something happens, it may make it harder to get our next contract.
• Example: I noticed that Mr. Smith is not using the latest method for operating that pile driver. We should make sure he is using the latest technique that I saw on youtube the other day. We want to make sure we have a reputation for knowing what we are doing.

These statements are simple, and generally effective if you frame your safety concerns as things that would be helpful for the company.

4. Wear Safety Gear.

Wearing safety gear is important to make sure that if something happens, you will be as protected as possible. Wear closed toe shoes, hard hat, gloves, and any other protected items that are required in your industry.

Company culture

Every construction company develops a different type of culture. Some construction companies are much more interested in safety, while others are more interested in getting the job done.

Becoming aware of how safety can work alongside getting the job done can help shift company culture to pay better attention to risk factors. Safety should always be considered on a construction site.

Falls kill most construction workers. After falls, which is by far the most common construction fatality, electrocution, falling objects and getting pinched between materials are the next three most fatal types of construction accidents.

Heavy equipment is moved on construction sites. When things get moved around, the workers are in danger of something suddenly shifting, coming loose, or falling. When heavy items shift, construction workers often will get hurt or killed.

Construction accidents happen more often that many other industries. According to OSHA, more than 20% of all fatal construction accidents were in construction. While the 2015 statistics are not out yet, in 2014, more than 874 construction workers were killed on the job.

Construction accidents are higher than the national average for all classes of employment that OSHA tracks. Construction accidents are widespread enough that everyone who works in construction knows or remembers a construction accident.

Reporting a construction accident to the Office of Occupational Health and Safety Administration must take place if there is someone killed or three or more workers who are injured enough to require hospitalization. The first report needs to be oral, and must take place within 8 hours of the incident.

These incidents must also be reported in the log required by OSHA.

What is a major accident in construction?

A major accident is an accident where someone loses consciousness or is killed.

The most common accident occurs from falls from heights on a construction site. Falls can be from scaffolding, excavation equipment, ladders, stairways, trenches (both falling in and or collapse), elevators, cranes, forklifts and other types of elevated construction equipment equipment,

Falling items are also a significant danger on a construction site. These objects can be beams, chains, metal plates, pieces of equipment, bricks, wood, or any other type of building material.

Falling objects usually cause serious injury due to the speed and weight of the objects involved. Further, it is difficult to prevent serious injury from a falling object, as generally the falling object will strike someone on or near the head. This can cause concussions, brain injury, or death.

After a construction accident, you should first make sure you are in a safe location. After you are safe, you should make sure the site is secure and safe, and there is no likelihood that the construction accident will harm anyone else.

Next, you should alert medical personnel. Sometimes there will be medical professionals on site, or contracted with the construction company. After medical attention has been given, you should alert your superiors, and follow the guidelines in your injury and illness prevention plan.

If you do not know the guidelines in your injury and illness prevention plan, or if your company does not have an injury and illness prevention plan, follow the instructions of your supervisors.

Most construction accidents happen during the workday. Heavy equipment is being operated, and large amounts of people and machinery are moving around on the jobsite. The high number of moving people lead to the falls and falling objects which are the most common construction accidents.

Why do construction accidents occur?

They occur because of accidents, failure to properly maintain equipment, design failures, poor conditions, bad lighting, equipment failures, and human error. Accidents will happen as long as humans are involved in the construction industry.

As a legal question, there are three main responsible parties. The employer of the person who caused the accident, the companies involved who are not the employer (often called third parties) and the individual.

In legal terms, these break down to:

• The employer of the injured person
• The third parties (all companies that contributed to the accident that are not the employer)
• The injured person

From a legal context, in California there is no ability to bring a lawsuit against the employer (this is a general rule, there are a few exceptions). You cannot bring a lawsuit against the employer for their role in an accident because it is governed by the exclusive system of Worker’s Compensation. This system prevents lawsuits against employers, but does not provide much compensation if the accident is the fault of the employer.