Losing a loved one can be an overwhelming and devastating experience. This is particularly true if the loss was unexpected and preventable.
When a loved one passes away due to the negligence or even intentional harm of another person, surviving family members also often feel the need for justice. This can be accomplished through the criminal justice system when a crime occurred. What many don’t know, however, is that justice can also be sought through civil court in what’s called a “wrongful death” claim.
What is a wrongful death claim? When is it appropriate to bring this type of claim? Today, we discuss all you need to know about this type of claim.
What is wrongful death?
A wrongful death claim is a civil lawsuit. This claim is brought against the person (or party) who is legally liable for the death.
A surviving family member (such as a spouse or adult child) or representative of the deceased’s estate can initiate a wrongful death claim. The only people that can benefit from a wrongful death claim in Ohio are the spouse, children, and parents of the deceased person.
As in other civil suits, there is a statute of limitations for filing a wrongful death claim. Under Ohio law, surviving family or the representative of the estate have two years from the date of death to file a claim. If a claim is not filed within this time period, the family may be prevented from ever filing a claim (with few exceptions).
If a wrongful death claim is successful, the court may award the following damages to the surviving family members:
- Funeral and burial expenses
- Loss of financial support, according to reasonably expected earnings from the deceased
- Loss of services from the deceased
- Loss of prospective inheritance
- Loss of companionship, protection, guidance, and instruction from the deceased
- Mental anguish suffered
The court strives to split the damages in the fairest way possible. The benefits may be awarded to the beneficiaries based on several factors, including each person’s relationship to the deceased, their ages, and the loss that they suffered. If each person is related to the deceased in the same way (for example, three adult children), they may be able to split the damages amongst themselves without involving the court.
Funeral and burial expenses, future wages, and future inheritance are damages that can be calculated or estimated. Loss of companionship and mental anguish, of course, are not measured in dollars. These two types of damages are subjective and may be awarded in different amounts based on the particular facts of the case.
When can someone bring a wrongful death claim?
Wrongful death can be seen as a type of personal injury claim. Under Ohio law, a wrongful death claim can be brought “when the death of a person…caused by wrongful act, neglect, or default…would have entitled the party injured to maintain an action and recover damages if death had not ensued.” This essentially means that, if the deceased person had not passed away, he or she could have filed a personal injury lawsuit. Because a deceased person cannot file a lawsuit, Ohio law allows a family member file for damages on his or her behalf.
Like in personal injury claims, a wrongful death claim may be filed in circumstances involving medical malpractice, car or motorcycle accidents, falls, accidents caused by defective products, etc. A wrongful death lawsuit may even be filed following a criminal action.
The most iconic example of a wrongful death case involves the O.J. Simpson trial. Simpson was acquitted of the murders of Nicole Brown Simpson and Ron Goldman in a criminal trial. However, this did not prevent the surviving family from filing a civil lawsuit against him. The family won their wrongful death claim and was awarded damages.
This is possible because criminal and civil courts have different standards for proof. Because criminal trials involve possible incarceration, the standard of proof is higher (“beyond a reasonable doubt”). But because civil trials involve money, the standard is lowered to a “preponderance of evidence.” (In layman’s terms, this means that the evidence is, more likely than not, in favor of one side.)
No amount of money can ever replace a loved one. However, a wrongful death claim may help your family find justice, some sense of closure, and financial security.
If you have questions about filing a wrongful death claim on behalf of your loved one, we can help. The experienced and compassionate wrongful death attorneys at our firm are here to answer your questions and guide you through this tremendously difficult time.
Please contact us for a free consultation at the location most convenient for you: we have offices in Cincinnati, Dayton, Hamilton, and Middletown to serve you.