A wrongful death claim is based on negligence. Wrongful death claims are often based on the same types of incidents that would have led to a personal injury claim if the victim had survived.

To establish liability in a wrongful death case, the plaintiff will have to demonstrate that the defendant had a duty of care for the deceased. Additionally, the plaintiff must prove that this duty of care was breached and that his or her breach caused or substantially caused the death.

For example, a driver has a duty to observe the speed limit. Following this speed limit is a duty of care because it is designed for the safety of other drivers and pedestrians when operating a motor vehicle. A speeding driver who kills a pedestrian has breached that duty.

In this scenario, because the driver breached his duty and that action caused the accident that resulted in the pedestrian’s death, he may be held liable for wrongful death.

Some common examples include:

• Auto Accidents
• Automobile accidents, including car accidents, truck accidents, and motorcycle accidents, are among the most common types of wrongful death claims. A wrongful death claim may also arise when a bicyclist or pedestrian is killed by an automobile.
• Negligent behavior that may lead to a wrongful death claim based on a car accident includes:
• Drunk driving
• Distracted driving, such as texting or emailing while driving
• Speeding or reckless driving

These are some of the clearest and most dangerous negligent behaviors behind the wheel. However, any negligence in driving or vehicle maintenance that causes the death of another may form the basis for a wrongful death claim.

Medical errors are now the third leading cause of death in the United States. A recent study led by a professor of surgery at Johns Hopkins University School of Medicine revealed that mistakes in hospitals and other medical facilities lead to more than 250,000 deaths each year.

Medical malpractice may occur for a variety of reasons, including:

• Medication errors
• Doctor negligence
• Improper or insufficient training
• Inadequate systems and safeguards
• Surgical errors
• Anesthesia errors

In this type of case, there may be multiple possible defendants in a wrongful death claim. For example, in the case of a surgical error, liability may lie with the hospital, the surgeon, staff who prepared the operating room, nurses supplied by an outside staffing company, and other potential liable parties.

Wrongful death claims may also be based on accidental deaths occurring as the result of negligent maintenance or security of property.

Some examples of premise liability may include:

• A drowning death at a public pool with inadequate safety procedures
• A slip and fall injury on the unsafe or negligently cleared ice
• Death resulting from negligent set-up or maintenance of an amusement park ride

Security-related claims may arise if the property owner has reason to know that there are dangers impacting residents or visitors and fails to take appropriate measures.

For example, if an owner of an apartment complex who is aware that there has been a series of robberies in the parking lot, they are responsible for notifying their residents. If the owner does nothing to protect or warn those using the lot, he or she may be liable for wrongful death if a resident arriving home late at night is killed by a mugger.

Motor vehicle accidents, medical malpractice, and premises liability are just a few examples of negligent behaviors that may lead to wrongful death litigation. Some other examples include:

• Defective products
• Environmental toxins
• Work-related accidents or exposure
• Intentional Acts Leading to Wrongful Death Claims

A relatively small percentage of wrongful death claims resulting from intentional acts rather than negligence.  These claims are frequently, but not always, based on criminal activity. California is one of the few states that allow for wrongful death claims as a result of infliction of severe emotional distress that leads to suicide.

Often, wrongful death claims based on an intentional act are more difficult than those based on negligence. Intentional wrongful death claims are usually difficult for the plaintiff who may be less likely to collect. That’s because insurance policies generally don’t cover intentional acts.

So, if a family of the deceased is able to prove wrongful death based on an intentional act and successfully files a claim, it may be impossible to collect on the judgment. One exception is when the defendant is a large corporation or otherwise has significant assets.

Common examples of economic damages include:

• Replacement of financial support that the deceased would have provided had he or she not been killed
• Compensation for loss of services the deceased would have provided, such as housekeeping, child care, and meal preparation
• Funeral and burial expenses may be awarded to the estate
• Medical expenses incurred as a result of the injury that led to death may be recovered by the estate

The amount and extent of these damages will vary. Compensation is based both on the amount of support provided by the deceased prior to death and the expected duration of the support.

For example, a surviving spouse will typically be entitled to compensation for the support he or she might have received for the rest of his or her life. However, a minor child may be entitled to support only until he reaches the age of majority, or perhaps through college.

Non-economic damages generally include damages for:

• Loss of love, support, companionship and related benefits of the relationship with the deceased
• Loss of sexual relations with a spouse or domestic partner
• Loss of guidance and education due to the loss of a parent

Unlike economic damages, non-economic damages are difficult to calculate. The jury has significant discretion in determining the value of non-economic losses, particularly since California does not cap damages awards in wrongful death cases.