Scranton Wrongful Death Attorney
When someone’s death is the legal fault of another person, the law deems it wrongful death. Wrongful death differs from a murder claim in that wrongful death stems from someone else’s negligence, not a willful intent to kill. If someone else’s negligence, carelessness, or breach of duty caused the death of your loved one, Pennsylvania civil law gives the surviving family members a way to recover damages. Speak to the attorneys at Rosenbaum & Associates for details about your specific case.
How Does Pennsylvania Define a Wrongful Death?
A wrongful death is defined under Pennsylvania law (42 Pa. Stat. and Cons. Stat. § 8301) as one that is “caused by the wrongful act or neglect or unlawful violence or negligence of another.” That means another party failed to exercise reasonable care, which directly resulted in the death of a loved one. It may be a result of:
- A negligence-based accident (e.g., workplace accident, car accident, slip and fall)
- Medical malpractice, or
- An intentional act of violence.
If your deceased loved one could have pursued a personal injury lawsuit had they survived, then you likely have the grounds for a wrongful death claim.
Who Can File a Wrongful Death Claim in Pennsylvania?
In Pennsylvania, only a representative of the deceased person’s estate can file a wrongful death claim on behalf of all eligible surviving family members. In many cases, a specific family member is named as the executor in the deceased’s will.
If the deceased victim does not have a will, a family member can volunteer to assume the role as the personal representative, or the court may appoint someone. However, if the personal representative has not filed the wrongful death claim within six months of the death, any beneficiary of the decedent’s estate can file the claim on behalf of all beneficiaries.
What Damages Can Be Recovered in a Wrongful Death Claim?
Damages will be awarded in a successful wrongful death lawsuit, which is compensation for the surviving family members’ losses. There are two types of damages typically available in wrongful death claims, economic damages for monetary losses and non-economic damages for subjective losses. The damages awarded will vary based on the circumstances of each case but can include:
- Medical bills caused by the accident which led to the death;
- Funeral, cremation, or burial expenses;
- Loss of the victim’s expected income;
- Loss of benefits;
- Estate administration expenses
- Reduction in the inheritance suffered by surviving children;
- Loss of parental guidance;
- Loss of support and services that the victim provided;
- Loss of society, companionship, comfort, guidance, and advice.
- Compensation for the conscious pain and suffering the deceased endured due to their injuries before their death.
- Interest on top of the damages awarded, which are calculated from the date of death.
In some cases, punitive damages may also be awarded if the at-fault party’s actions were malicious or extremely reckless. Unlike other types of compensation, punitive damages are intended as a punishment.
There are many variables that determine how much these damages will be. The most common factors considered are:
- A decedent’s past financial contributions.
- The life expectancy of a decedent at the time of death.
- The deceased’s health at the time of death.
- The decedent’s age, habits, and occupation.
- How many minor children the deceased had.
- The past and potential future earnings of the decedent.
- The percentage of financial support the spouse relied on.
- The type and severity of the accident.
- Whether the deceased was actively involved in their community.
These elements can also decrease a family’s potential settlement. If, for example, a wrongful death case is filed for the loss of a much older family member who had no surviving spouse or children and was nearly 50% at fault for the accident. That case’s value would be far less than one where the victim had a surviving spouse and multiple young children with very little to no responsibility for the accident.
Who Can Be Awarded Damages in a Wrongful Death Claim?
In Pennsylvania wrongful death cases, damages are awarded to surviving family members and specifically intended for the deceased’s spouse, children, and/or parents. Notably, siblings, aunts, uncles, grandparents, and other more distant relatives of the person who has died cannot be a part of the settlement, even if they were dependent on the deceased.
The wrongful death settlement will be divided per Pennsylvania’s intestate succession laws that govern how property is distributed. Those laws are as follows:
- If there is a surviving spouse and children, the spouse will receive the first $30,000 and half of the remaining amount. The other half will be divided equally between the children.
- If the decedent was married and did not have surviving children or parents, the entire award will go to the spouse.
- If there are children but no spouse, the entire settlement will be divided equally among the children.
- If there is a surviving spouse and parents but no children, the spouse will receive the first $30,000 as well as half of the rest, and the parents will divide the other half.
- If there are surviving parents but no spouse or children, the parents will split the money equally.
When there is no surviving spouse, child, or parent, the estate’s personal representative can still seek damages for funeral and burial expenses, medical bills, and estate administration expenses.
How Do You Prove a Wrongful Death Claim?
Bringing a successful wrongful death lawsuit requires demonstrating the following elements of negligence:
- Duty of Care: The at-fault party owed the deceased a duty of care—for example, the duty to drive carefully and obey traffic laws.
- Breach of Duty: The at-fault party violated their duty by failing to act with the same level of care that a reasonable person would in a similar situation. For example, driving while under the influence of drugs or alcohol.
- Causation: The at-fault party’s violation of their duty of care directly caused the individual’s death.
- Damages: The surviving family suffered losses as a result of their loved one’s death.
Depending on the circumstances of the case, the causation element can be particularly challenging to prove. The at-fault party will often try to shift the blame on another party or the victim. A wrongful death attorney will help you gather the necessary evidence to prove liability. That will involve:
- Investigating the accident to determine who was responsible.
- Obtaining police reports, medical records, photos, and videos,
- Interviewing eyewitnesses
- Hiring expert witnesses to reconstruct what happened or show how your life and that of your family have been negatively affected by your loss, and testify accordingly.
Pennsylvania’s law of comparative negligence will apply to wrongful death cases. This law can reduce a surviving family’s compensation if the deceased contributed to their accidental death. For example, if the estate is awarded $500,000 and the deceased was found 30 percent at fault, the estate will recover 70 percent of the award or $350,000. If the victim was 51 percent or more to blame, the family cannot recover any compensation. As a result, each case requires careful planning and a unique legal strategy to ensure liability falls on the correct party.
How Long Will a Wrongful Death Claim Take to Resolve?
Most wrongful death cases settle out of court. Some can be resolved fairly quickly and without a lawsuit, especially if the evidence clearly demonstrates a party’s fault. However, there is no precise answer since each case is unique. If the case concludes with a settlement, it may only take a few months. Whereas, a trial can take up to a year or longer.
What Is the Statute of Limitations for Wrongful Death Claims in Pennsylvania?
Each state makes its own laws governing how long surviving family members have to bring a wrongful death claim. In Pennsylvania, the statute of limitations for filing a wrongful death lawsuit is within two years of the date of the victim’s death. If a lawsuit is not filed before this deadline, the complaint may be dismissed by the judge, and the negligent party will not have to pay any losses.
Although two years may seem like a long time, it is almost always better to get the process started and speak to a wrongful death attorney right away. As soon as you hire a lawyer, they will investigate your loved one’s accident to collect critical evidence of fault that can quickly disappear, which will significantly improve your chances of getting justice and the compensation your family deserves.
When Should You Sue for Wrongful Death?
The death of a loved one is a terrible shock that no family should have to endure. Unfortunately, fatal accidents occur every day under numerous circumstances. While not every untimely death is grounds for a wrongful death claim, some are. Here are a few examples of when a family may be able to sue for wrongful death:
- Motor vehicle accident – If a car, truck, motorcycle, bicycle, or pedestrian accident took the life of your loved one, seek legal counsel. This common cause of wrongful death demands legal attention.
- Medical malpractice – Misdiagnosis, delayed diagnosis, medication errors, negligent care, surgical and anesthesia errors, nursing home negligence/abuse, and birth injuries resulting in death are all examples of cases that may merit a wrongful death claim.
- Defective products – If a product such as a malfunctioning seatbelt or defective medical device caused your loved one’s death, you may have grounds for a wrongful death suit based on product liability laws.
- Workplace accident – When a worker dies on the job, the employer or a third party may be liable. This may be the case if hazardous workplace conditions existed, or if the employer failed to prepare employees properly to handle dangerous situations.
- Premises liability accident – Fatal dog attacks, swimming pool accidents, inadequate security, slips, trips, and falls, and parking lot accidents may all be grounds for a wrongful death lawsuit if the property owner breached his or her duty to maintain a reasonably safe premises, resulting in death.
- Criminal activity – Physical attacks and assaults can tragically end in someone’s death. If an individual committing an unlawful act led to the loss of a loved one, you can hold the attacker responsible in both a criminal proceeding and a wrongful death claim in the civil courts.
In Pennsylvania, only a representative of the deceased person’s estate can file a wrongful death claim. However, if the personal representative has not filed the wrongful death claim within six months of the death, any beneficiary of the decedent’s estate can file the claim on behalf of all beneficiaries. A person has two years from the date of the death to file a claim in Pennsylvania. Do not delay – speak to an attorney as soon as possible after suffering a loss. Filing a wrongful death claim can lead to compensation for your family’s mental anguish and losses, as well as damages incurred between the date of the accident and the date of death.
How Much Does Rosenbaum Injury Law Charge
Our firm handles wrongful death cases on a contingency basis. That means you do not have to pay hourly fees or upfront to retain our representation or any court costs. We will advance all of the costs associated with preparing and litigating your claim. For example, the cost of police reports, copies of medical records, expert witness fees, court filing fees, deposition transcription fees, case-related travel expenses, etc.
Once you recover compensation, we will take a contingency fee plus court costs. Contingency fees are generally between 25 to 40 percent of your award, typically depending on the work involved in your case and whether it is resolved in a settlement or must go to trial. On average, contingency fees are 33 and 1/3%.
The benefit of this type of arrangement is that there is no financial risk for you since you only have to pay if you recover compensation. We understand how extremely serious wrongful death cases are, and you can rest assured that if we accept your case, we believe you can win.
Contact a Wilkes-Barre & Scranton Wrongful Death Lawyer
Rosenbaum & Associates has been a nationally recognized law firm for the last 25 years. With extensive experience in all types of personal injury and wrongful death cases, we are a caring and capable firm serving residents of the Wilkes-Barre and Scranton areas. Our goal is to help your family in any way we can in the aftermath of an accident that takes a loved one’s life. Our aggressive representation can help you fight insurance companies and ensure your family receives fair compensation. To speak with an experienced attorney about your recent negligence-related loss, contact personal injury lawyers today for a free case evaluation.