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Elements of a wrongful death case

Some Manhattan residents may have heard term "wrongful death" used without ever really understanding what it means. Wrongful death is legal terminology for the death of a person because of another's misconduct or negligence, which may also include murder.

Wrongful death litigation is frequently filed after the adjudication of criminal trials in the same matter regardless of the disposition of the cases. Perhaps the most high profile case in recent years would be the case of former football standout and sometimes actor, O.J. Simpson, who was acquitted of murder in his criminal trial yet was found liable for the wrongful death of his ex-wife and her friend in his civil trial.

The reason for the disparity is because the burden of proof is much greater in criminal trials than it is in civil actions, where responsibility is determined not "beyond a shadow of a doubt." but by a preponderance of evidence.

In order to bring forth a suit for wrongful death, you must be the personal representative of the deceased person's estate. Any settlements or awards for damages become part of the estate and may be passed on to heirs.

A wrongful death case must have these following elements:

  • An individual's death.
  • The death must have been caused by another person's negligence or his or her intent to cause harm.
  • Surviving family members who suffer monetary injury resulting from this death.
  • A personal representative who is appointed for the estate of the decedent.

While circumstances vary as to which situations may generate a claim of wrongful death, some of the following include criminal behavior, death occurring during a supervised activity, medical malpractice resulting in death, occupational exposures to hazardous substances or conditions and plane or car wrecks.

In some cases, damages for personal injury to the decedent may also be sought. These actions are called "survival actions," as the actions themselves survive the individual who suffered the fatal injury. These actions deal with the conscious awareness of pain and suffering. Damages are determined according to the severity of pain and degree of consciousness, the apprehension of impending death and duration of suffering.

If you have further questions regarding New York wrongful death statutes, a personal injury attorney is a good source of information when deciding if and how to take legal action in a particular case.

Source: FindLaw, "Wrongful Death Overview" Sep. 04, 2014

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