A wrongful death lawsuit is a legal action brought by the survivors of someone who died as the result of a wrongful act of another person.
This type of lawsuit is a civil action brought by one person (or persons,) known as the plaintiff, against another person (or persons,) known as the defendant. It is not a criminal action, however, in Delaware, it is possible to bring a civil action for a wrongful death even if the state has brought criminal charges in relation to that death. The civil action and the criminal action will be handled in different courts.
If you are wondering what a wrongful death lawsuit is, or if you may be able to take legal action for a wrongful death, this article will give you some basic information. However, wrongful death cases can be emotionally difficult, legally complex, and involve significant compensation awards, so you should always get the advice of an experienced wrongful death attorney, like the wrongful death attorneys at Morris James, to help you understand your legal rights.
There are three basic questions you can ask to help decide whether or not you might have a wrongful death lawsuit:
- Was there a wrongful death?
- Has the time limit for bringing a wrongful death lawsuit expired?
- Are you an eligible person to bring a wrongful death lawsuit for this victim?
We will take a closer look at these preliminary questions here.
1. Was there a wrongful death?
A wrongful death, in legal terms, is a death that is caused by the act, neglect, or default of another person, known as a “wrongful act.” Delaware law states that a wrongful act is one that would have entitled the victim to be awarded damages for personal injury, if the victim had survived.
A wrongful act therefore includes intentional and unintentional actions, and covers acts as well as a failure to act. An intentional act that leads to the death of the victim can include criminal activity, such as assault and battery where the defendant intended to punch the victim. In such cases, the plaintiff must prove that the defendant intended to take the action that caused the death of the victim but the plaintiff does not have to prove that the defendant intended to kill the victim.
In a wrongful death claim, an unintentional act or failure to act is generally known as negligence. By law, negligence is proven by showing that the defendant had a duty of care toward the victim, that the defendant breached that duty, and that their breach caused harm to the victim (in this case, death.) For example, a doctor who fails to properly diagnose and treat a patient who then dies might be negligent; or a trucking company might be negligent if it hires a driver who does not have a commercial driver’s license who is then in a fatal trucking accident.
If you look at the circumstances of the victim’s death and think that the victim could have sued the defendant for their injuries if they were still alive, then you may have a wrongful death case. Through the wrongful death action, the law provides a way to hold the defendant accountable for what they have done and give compensation to the survivors of the deceased victim. If you think that someone is responsible for the death of your loved one, and you have more questions about this complicated area of the law, you should speak to an attorney who is experienced in handling wrongful death suits. Our attorneys in the Morris James wrongful death team have years of experience navigating this difficult journey with our clients to get justice for their deceased family members.
2. Has the time limit for bringing a wrongful death lawsuit expired?
The next consideration in a wrongful death case is the time limit on filing a lawsuit, legally known as the statute of limitations. The statute of limitations is a law that prevents people from bringing lawsuits a long time after a wrong has occurred. The time limits are different depending on the type of case and which state you are in. In Delaware, the statute of limitations for a wrongful death claim is 2 years. This means that a plaintiff only has two years to bring a wrongful death claim, which can be a very short time in the life of a grieving family member.
Time limits can raise additional questions and you should never decide that you are outside the time limit for a wrongful death claim without first talking to an experienced wrongful death lawyer, like one of the team at Morris James. In many wrongful death cases, the date of the accident/injury is not the same as the the date of the victim’s death because the victim initially survives their injuries or is hospitalized for a period. Sometimes months or even years can pass between the accident/injuries and the victim’s death. In a wrongful death action in Delaware, the 2 year period is calculated from the date of the victim’s death not the date of the injury or accident. Therefore, if more than two years have passed since the date of your family member’s accident/injury, you may still be within the time limit if it is less than two years since their death.
3. Are you an eligible person to bring a wrongful death lawsuit for this victim?
If you believe that the victim’s death was caused by the wrongful act of another person, and you are still within Delaware’s 2-year statute of limitations period, you must then determine whether or not you are eligible to bring a wrongful death action for this victim.
Generally, only immediate family members can pursue a wrongful death claim in Delaware.
Specifically, Delaware law allows the following categories of people to bring a wrongful death claim:
- Parents, which includes biological, adoptive, legitimate, and illegitimate parental relationships
- Children, which includes biological, adopted, legitimate, and illegitimate children
- Siblings, which includes full, half, and adoptive siblings
However, if the victim is not survived by anyone in the above categories, a wrongful death claim may be brought by any person related to the deceased person by blood or marriage. This would include, for example, grandparents, grandchildren, aunts, uncles, nieces, nephews, and in-laws of the deceased victim. These more distant relatives can only bring a wrongful death claim if there is no one alive in the closer relative groups listed above (spouse, parents, children, and siblings.)
Dealing with the death of a loved one is always difficult, and is only made harder by the kind of circumstances that give rise to a wrongful death claim. As the immediate fog of grief begins to clear, surviving family members may begin to ask questions about their loved one’s death and look for answers, accountability, and justice. Although no court can bring back a loved one, a wrongful death action is a means of finding answers, getting some financial compensation for the family left behind, and holding the people, companies, or organizations who are responsible for the victim’s death accountable.
All of the complexities of the law in a wrongful death claim cannot be covered in one brief article. We cover more questions about wrongful death on our website, but these are not a substitute for personalized legal advice from an experienced wrongful death attorney who knows your specific circumstances.
If you have lost a loved one and think that you may have a wrongful death claim against another person, the wrongful death attorneys at Morris James can help. We will arrange a no cost, no obligation conversation to discuss your individual case with you, and help you to determine whether or not you may have a valid legal claim for wrongful death. We will explain your legal rights and options, and, if you choose, help you to bring a claim against the persons who are responsible for your loved one’s death. Contact us at your local Delaware office or via our online contact form.