The loss of a loved one is never easy to handle, and it can be even harder when it is due to the negligence (wrongful/unlawful act) of someone else. When you are unfairly robbed of additional years with your loved one you are robbed of time you can never get back. While no amount of money can bring back your loved one the law does allow for family members and loved ones to be compensated to help lessen the financial impact of a lost loved one, especially if that individual was the primary source of income.
New Jersey has a statue that helps surviving family members recover when they are robbed of those additional years due to the negligence of another person or persons, it is New Jersey General Statues 2A:31-1. This statue provides the basics for if a claim exists and it states:
“When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.”
Yes, the law reads complicated and can be very confusing so lets break it down a bit and talk about what the process of a wrongful death claim. Below we will discuss how long you have to file, who can file a claim, what damages can be recovered and what needs to me proved to win the claim.
How Long do I Have to File a Wrongful Death Claim?
In New Jersey you are given two (2) years from the day of death to file a wrongful death claim. If you do not file a lawsuit within two (2) years of the day of death you will be forever barred from pursuing a claim. There is absolutely nothing that can be done if the statute of limitations has run on your claim, therefore you need to be very mindful of the dates and make sure you seek legal counsel as early as possible.
Who Can File a Wrongful Death Claim?
In New Jersey a wrongful death claim is typically filed by the executor or personal representative of the decedent’s estate. The damages recovered are awarded to the surviving dependent family members. A depended family member is one who was depended on the support of the deceased person at the time of death. In New Jersey the related individuals likely to receive a portion of the damages awarded in order of priority are:
- Surviving Spouse
- Children or Grandchildren
- Deceased Persons’ Surviving parents
- Nieces or Nephews
Additionally, any person that can prove they were “actually depended” on the deceased individual may make a claim to receive a portion of the damages.
What Damages are Paid for in a Wrongful Death Claim?
First, let me explain what are “damages.” “Damages” is the fancy legal word for money owed to the Plaintiff (person bringing the suit) by the Defendant (person being sued or the person allegedly in the wrong). Okay, now that we know what damages are let’s talk about what specific damages the Plaintiff can recover of the Defendant in a wrongful death claim.
If a party is found to be negligent, we will get into what has to be prove for this momentarily, and caused an individual’s death the executor or estate representative can make a claim for the following:
- Loss of financial support – this is determined by a calculation of what the deceased person would have been expected to earn had they lived to an estimated age. The estimated age is determined by statue. The New Jersey Public Health Data Resource provides a Report of Life Expectancy.
- Loss of companionship – this includes things one would receive from this individual such as care, comfort and guidance.
- For spouses this also includes loss of marital relations
- For children it includes loss of parental guidance
- Loss of value of household services – these include things like cleaning, childcare and other household chores
- Reasonable medical, funeral and burial expenses – reasonable medical expenses include costs incurred due to the final illness or injury.
These are your basic damages typically included in a wrongful death claim. Every case is unique and could have other damages to be considered. To help determine if yours has any additional damages you should consult a licensed attorney.
What do I Need to Prove for a Wrongful Death Claim?
As in all lawsuits the Plaintiff has the burden of proof in order to win their claim. In order for damages to be recovered one must prove to the courts the defendant was negligent and caused the decedent’s death. There are three primary elements that must be proved in order for damages to be awarded. These three elements are:
- Duty of Care – The plaintiff needs to show that the defendant owed the decedent a duty of care. For example, in a car accident the Plaintiff must show that the defendant was in the wrong in causing the crash. Typically, this is shown by an unlawful act such as speeding, running a traffic signal or driving while intoxicated.
- Breach of Duty of Care – Once the plaintiff can prove the Defendant owed the Plaintiff a duty of care the plaintiff must now show that they breached their duty. Again, in the above listed example of a car crash the breach of duty would be shown by the unlawful act of speeding, running a red-light or driving under the influence of a controlling substance.
- Causation – Next the Plaintiff must also show causation that the Defendant’s actions directly caused the decedent’s death. Going back to our car crash example, the Plaintiff must show that the Defendant’s unlawful directly action caused the death of the victim versus something like a pre-existing health condition or a mechanical failure.
So, Do I Have a Wrongful Death Claim?
As you can see there are several factors and elements to consider when determining if you have a wrongful death claim. It is always best to consult a licensed attorney who can review all the elements of your claim and provide a professional opinion on if you have a claim or not. Here at Costello Law Firm we have more than 20 years of practice in the legal field and are equipped to help you determine if you have a claim. Contact us to get an appointment scheduled!
Chris Costello, ESQ.
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