The wrongful death attorney is a legal practitioner who represents both the deceased and the family in a situation where death was the result of acts of another. Under common law, neither a person who was killed as the result of another’s actions- called a tort- nor his or her relatives could bring a suit to recover damages resulting from the demise. Ironically, since the only kind of action that could be brought was for injury to a person or their property, it was actually more economical to have a person die than to just be injured.
It was the Fatal Accidents Act of 1846, known as Lord Campbell’s Act, that permitted relatives of those killed as the result of the wrongdoing of others, to maintain an action at law. This concept spread from England to the U.S. where statutory changes in state law allowed suits to be filed both on behalf of the person who died as well as the beneficiaries of his or her estate. Each state has its own legal requirements concerning this cause of action that a wrongful death attorney has to meet in order to successfully prosecute the claim. Additionally, this is the only type of suit where a corporation could be found civilly liable for damages resulting from death.
What Are The Elements Of A Wrongful Death Case
The burden of proof that a wrongful death attorney has to meet is known as a “mere preponderance of the evidence.” This is far less strict than other legal burdens such as “clear and convincing” and “beyond a reasonable doubt.” The elements that have to be established are as follows:
Duty can be defined as the obligation to act with due care to keep another party safe from harm under the circumstances. In order for a claim to succeed, the duty that was owed needs to be established.
Breach of Duty
Once the obligation has been proven, the next step is to show that the wrongdoer failed to act in such a fashion as to prevent the incident leading to the demise of the victim. This breach does not have to be the result of an affirmative act; failing to act can also meet the test for breach of duty.
The major element of any injury case is causation. The legal practitioner has to demonstrate that the breach of duty was either the direct or proximate cause of the chain of events resulting in the passing of the victim. An important element of causation is foreseeability; the ability to reasonably foresee that acting (or failing to act) in a certain way could result in harm to another.
After establishing legal responsibility, the wrongful death attorney has the obligation to set out the damages that resulted from the event. These can range from monetary loss (both to the decedent and his/her family, pain and suffering, loss of services, consortium, as well as past, present and future earnings. State statutes often put limits of the amount that can be recovered that a skilled lawyer must take into consideration.
Today’s wrongful death attorney has a far more complex task than those practitioners of an earlier time. While the substantive facts of each case may differ, the ultimate goal is the same: to obtain justice for those who have suffered the loss of a loved through the acts of another.