How Are Settlements In A Wrongful Death Case Determined?
When you lose a loved one, there is no way of bringing the person back to life. However, if it was a wrongful death, getting compensation can alleviate the financial consequences the death may cause, and help support surviving family members or loved ones. In North Carolina, the law provides for compensation to ensure survivors can continue their education, preserve their family home, or retain the lifestyle they had when the decedent was alive.
What are the Requirements for Instituting a Wrongful Death Claim?
In North Carolina, all claims for wrongful death must be based on NC General Statute 28A-18-2. The elements needed to prove a case of negligence are damages, causation, duty, and breach of duty.
In North Carolina, liability for wrongful death is established if the decedent’s death was proximately caused by the defendant’s negligence, or other misconduct, and would have, if the decedent had lived, entitled him/her to an action for damages. To start, this requires a showing that:
- The defendant violated some standard of reasonableness or legal duty;
- There was intentionally malicious conduct by the defendant; or
- The defendant’s act or omission was wrongful or tortious.
Some common types of Wrongful Death cases are:
- Medical negligence;
- Negligent manufacture or design of a product, also referred to as product liability;
- Negligent handling of a motor vehicle or commercial vehicle;
- Premise liability where you neglect maintaining a premise or business location
The burden of proof lies with the plaintiff, who has to prove that more likely than not the defendant’s conduct, act, or omission is an actual and proximate cause of the death and therefore damages.
What Damages are Recoverable under the Wrongful Death Act?
- Compensation for hospitalization, treatment, and care incident to the injury resulting in death, although these amounts are subject to limitations;
- Funeral expenses;
- Damages for pain and suffering of the deceased person;
- Present monetary value including but not limited to
- The decedent’s net income;
- Voluntary or obligatory services, care, assistance, and protection to the entitled survivors;
- Companionship, comfort, society, guidance, advice, and kindly office to the entitled survivors;
- Punitive compensation for wrongfully causing the death of the deceased person through gross negligence, willful injury, or malicious acts, per NC General Statute 1D-5, and compensation the decedent would have received for personal injuries had he not died, according to NC General Statute 1D;
- Nominal compensation as the jury may determine.
Damages may be hard to calculate or prove. The law makes it easier by allowing admission of an economist’s testimony of the economic damages arising from wrongful death and personal injury.
For damages for personal injury to be awarded, there must be evidence that the decedent suffered pain. Proof can be from the decedent’s statements. It can also be from witnesses who observed face grimaces or heard screams indicating the decedent was afraid of death or in pain.
If the events showing the decedent’s reaction to prove pain or fear of death were recorded, such records are also admissible as evidence. If the death was instantaneous, compensation for pain and injury generally would not apply.
In compensation for net income, the law considers what the decedent would have earned for the rest of his working life after deducting the expenses they would incur on personal care and taxes. These amounts are calculated based on the decedent’s life expectancy, earnings, education, training, employment, health, and habits.
Monetary compensation for protection, service, companionship, kindly office, advice, and care may include the value of doing household chores like laundry, cooking, babysitting, mowing the lawn, and running the household. The monetary value of these services is calculated at the present value. These damages may also call for an economist’s testimony.
Under these damages, survivors may be awarded damages for anguish, heartaches, and a sense of loss arising from the decedent’s death. In this case, they should present details of their relationship, such as photos showing they were a close family, and the loss has caused a crush of the relationship. Testaments from friends and family members are admissible as evidence of the lost relationships and damages associated with this loss.
Does North Carolina Wrongful Death Law Cover Punitive Damages?
Punitive damages are allowed and capped at $250,000 or three times the compensatory damages amount, whichever is greater, as long as there is proof of willful or malicious conduct. The damages may also be available from government entities and municipalities. However, some institutions and their employees may be covered by sovereign immunity.
What Happens When There Are No Damages?
In a case where there are no damages, the court should award nominal damages. Though this would be a rare occurrence, it could happen that a decedent suffered no compensable damages. This is where nominal damages apply as determined by the jury.
Who Brings a Wrongful Death Claim?
The executor of the decedent’s will or the decedent’s personal representative brings a wrongful death claim. The personal representative may be a spouse, parent, or a person with exclusive rights to receive compensation.
What Can a Defense Lawyer Say In A Wrongful Death Claim?
A defense counsel may argue that there were no damages, citing a failure to state a claim or argue the court lacks jurisdiction to hear and determine the claim.
Is There A Statute Of Limitations For Bringing A Wrongful Death Claim In North Carolina?
The statute of limitations for bringing a wrongful death claim is two years from the date the victim died. The law takes this to be the reasonable time in which the victim would have filed for compensation for injuries if they had survived. There are no damages if death occurs outside of this duration, even if it arose from injuries caused by negligence or malicious acts.
Our North Carolina Wrongful Death Lawyers Can Help
If a loved one has been killed in a situation where negligence or other situations may have contributed to a wrongful death, it’s essential to have the right legal team on your side. Green Mistretta Law can help – contact us today at 919-278-7453 or fill out our online form today to schedule a consultation.