Rosensteel Fleishman Logo
Charlotte Personal Injury Lawyer
704-714-1450
FREE CONSULTATION 24/7

Wrongful Death Basics

A wrongful death claim is a subset of a personal injury. In a traditional personal injury claim, one person is injured due to the negligent or intentional conduct of another person. In a traditional personal injury case, the injured person (plaintiff) is the person bringing a claim against the person (defendant) who caused the injury. In a wrongful death claim however, the injury results in death and therefore the plaintiff in a wrongful death claim is someone else bringing a claim on behalf of the deceased victim.

You might think that because someone died, a wrongful death claim is a criminal claim. It is not. Wrongful death claims are civil claims, not criminal. This means that a defendant in a wrongful death claim can be held liable only for monetary damages. There is no jail time for a civil crime. It is however possible that a criminal case could arise out of the death. Criminal charges are filed by the government against the defendant and could arise if a law was broken which led to the death. A criminal case could result in the defendant receiving jail time. That claim however, would not be a wrongful death claim. 

An example of civil wrongful death claim and a criminal claim occurring simultaneously could be a case involving a drunk driver. If a drunk driver caused an accident that led to the death of a victim, the estate of the victim may decide to file a wrongful death claim for monetary damages against the drunk driver. Drunk driving is illegal in Charlotte, North Carolina, as it is in all states. A Charlotte District Attorney could decide to file a criminal claim on behalf of the state against the drunk driver for violating the law. A finding of liability could result in the drunk driver serving jail time or paying a fine. Because the two cases are separate, the outcomes of the cases could be completely different. In the drunk driving example, the defendant might be found not guilty of drunk driving in the criminal but could still be found liable for damages in the civil case. 

How is Wrongful Death Defined?

Wrongful death claims are governed by state law and may vary from state-to-state. North Carolina defines wrongful death as occurring when the “death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages . . .” N.C. Gen. Stat §28A-18-2(a).

The statute in each state will generally establish what party/parties can sue in a wrongful death case, what damages are available and the time limits for filing a wrongful death claim. 

Filing a Wrongful Death Claim

In the case of a wrongful death claim, where the person who suffered the injuries has died and cannot therefore sue on their own behalf, who files a claim? The claim must be filed by the decedent’s estate. Usually this means that the personal representative, or the executor, of the decedent’s will is the person filing the claim (plaintiff). 

In order to succeed in a wrongful death claim, the plaintiff must show that:

  1. the party who caused the injury leading to the death (defendant) was the “cause-in-fact” of the victim’s death. To succeed, the plaintiff will need to present evidence showing that the defendant is liable for the decedent's death; and 
  2. proximate cause. The succeed, the plaintiff must present evidence that proves that the decedent's death was a “foreseeable result” of the defendant’s negligent actions. 

Wrongful death claims are filed by the decedent’s estate but the proceeds of a successful claim are distributed to the beneficiaries. If the decedent had a will, then the beneficiaries will be named in the will. If there was no will, then the beneficiaries will be determined according to North Carolina’s intestate succession laws. 

Damages Available in a Wrongful Death Claim

A wrongful death claim can seek damages for the estate but also for any surviving members impacted by the death. Damages available include:

  • medical expenses for the injury that resulted in the death (hospital bills, doctors bills, medicine, surgery, etc.)
  • pain and suffering that the deceased experienced before dying
  • funeral expenses (reasonable)
  • compensation to the beneficiary(ies) of the claim including the loss of the decedent’s income, assistance, care and companionship
  • punitive damages if the death was caused through willful or wanton conduct, or malice

N.C. Gen. Stat. §28A-18-2(b).

In a wrongful death case, since it is the estate filing a claim, any damages awarded will first be used to repay the estate for the costs of bringing the claim; this includes expenses and attorneys fees. Under North Carolina law, up to half of the damages recovered can then be applied to any outstanding medical bills and expenses. The remainder of the damages will then be distributed to the beneficiaries. 

Contributory Negligence and the Recovery of Damages

North Carolina, unlike most states, is a contributory negligence state. Under the contributory negligence theory, if a person is even partly responsible for their injuries then they may not be able to recover any damages. Contributory negligence does apply to wrongful death cases. Therefore, if the decedent contributed in any way to the injuries that led to his/her death, a judge or jury may determine that the defendant is not liable for damages. 

Statute of Limitations for Filing a Claim

Wrongful death claims in North Carolina are governed by a two year statute of limitations. This means that, in most cases, a claim must be filed in court within two years of the decedent’s death. Failure to file within two years could lead to the claim being kicked out of court. 

Statutes of limitations are very fact specific and do not hold true for every case, anyone with a potential wrongful death case should consult an attorney regarding their time limits. 

Discuss Your Wrongful Death Case with Our Charlotte Attorneys

If a loved one died due to the actions of another party and you believe that a wrongful death claim might exist, the Charlotte NC based lawyers at Rosensteel Fleishman, PLLC are experienced wrongful death attorneys who can help. Please contact our office at 704-714-1450. There is no fee for an initial consultation. 

linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram