Tulsa Wrongful Death Legal Counsel
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- Tulsa Wrongful Death Legal Counsel. Elias & Elias.
Tulsa Wrongful Death Legal Counsel
A “wrongful death” occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. An action for wrongful death belongs to the decedent’s immediate family members (often called “distributees”). The most common distributees are surviving spouses and children, and sometimes parents. A suit for wrongful death may only be brought by the personal representative of the decedent’s estate. Every state has a civil “wrongful death statute,” or set of statutes, which establish the procedures for bringing wrongful death actions. Actions for personal injury, conscious pain and suffering, or expenses incurred prior to the decedent’s death are also brought by the personal representative. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent’s will.
Elements of a Wrongful Death Lawsuit
In order to bring a successful wrongful death cause of action, the following elements must be present:
• The death of a human being;
• Caused by another’s negligence, or with intent to cause harm;
• The survival of family members who are suffering monetary injury as a result of the death, and;
• The appointment of a personal representative for the decedent’s estate.
• A wrongful death claim may arise out of a number of circumstances, such as in the following situations:
• Medical malpractice that results in decedent’s death;
• Automobile or airplane accident;
• Occupational exposure to hazardous conditions or substances;
• Criminal behavior;
• Death during a supervised activity.
Damages in a Wrongful Death Lawsuit
Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted “pecuniary injuries” as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries that resulted from the decedent’s death. If the distributees paid or are responsible for the decedent’s funeral or medical care, they may also recover those expenses. Finally, a damage award will include interest from the date of the decedent’s death.
Determining Pecuniary Loss
When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the distributees. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss. Usually, the main consideration in awarding damages is the decedent’s circumstances at the time of death. For example, when an adult wage earner with dependants dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent’s earnings at the time of death, the last known earnings if unemployed, and potential future earnings.
Adjustments in the Jury’s Award
In a wrongful death action, the jury determines the size of the damages award after hearing the evidence. The jury’s determination is not the final word, however, and the size of the award may be adjusted upward or downward by the court for a variety of reasons. For example, if the decedent routinely squandered his income, this might reduce the family’s recovery. Similarly, the courts will reduce a jury’s award if the decedent had poor earnings, even though he was young, had great potential, and supported several children. At the same time, a jury may award lost earnings despite the decedent’s having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent’s average earnings while employed. If the plaintiff fails to present such evidence of the decedent’s average earnings, the court may set aside the jury’s damage award and order a new trial.
Using Expert Testimony to Determine Pecuniary Loss
Plaintiffs are able to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife’s services, experts may aid the jury in this evaluation. Elias & Elias can advise you in this direction.
Punitive damages are awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible. Elias & Elias can advise you as to whether your state allows punitive damages.
Wrongful Death – FAQ’s
In Oklahoma, legal actions and damages for wrongful death are governed by Section 1053 of the Oklahoma Statutes for Civil Procedures (12 O.S. §1053). The law is written in plain English, is just 14 paragraphs long and can be read in its entirety here: Oklahoma Wrongful Death Law.
Here are answers to some of the most common questions about wrongful death claims in Oklahoma.
What is a wrongful death claim?
The statute describes a wrongful death as “when the death of one is caused by the wrongful act or omission of another.” A wrongful death claim is essentially a personal injury claim. Any injury due to a wrong action or negligence that results in death may be the basis of a wrongful death claim. A wrongful death claim is a civil action, not a criminal action.
Some of the most common wrongful death actions involve deaths resulting from:
Nursing home abuse
Use of a pharmaceutical product
Work-related accidents (e.g., construction, oil field)
Who can file a wrongful death action?
The statute empowers “the personal representative” of the one who died to pursue such action. Thus, it is usually a spouse, child(ren) or parent(s) who bring a wrongful death action, although sometimes the decedent’s estate is represented by another next of kin.
What damages may be recovered in a wrongful death action?
There are two kinds of damages at issue in a wrongful death. First are the damages experienced by the person who died, which he or she would have had a right to recover due to the injuries suffered, if the decedent had lived. Such damages include:
Pain and suffering during the period between injury and death.
Pecuniary loss: Loss of future earnings that the decedent would otherwise have received. Also, loss of benefits, such as pension or retirement funds.
In some cases, punitive damages.
The second category is damages for the surviving family members. The statute specifically mentions spouse, children, parents, and next of kin. Recoverable damages include burial and funeral expenses, grief, and loss of companionship.
Are there circumstances under which surviving family members are prevented from receiving wrongful death damages?
Yes. Here are a few reasons why that may happen:
If the decedent agreed to a settlement and/or a release of claims prior to the decedent’s death, the survivors may have no claim.
If the decedent failed to file a legal action within the statute of limitations and died after the deadline, the estate may have no claim.
The decedent’s will may have a bearing on how an award for wrongful death damages is distributed.
Also, in Oklahoma, one family member cannot sue another family member for wrongful death. Therefore, if the decedent would not be an eligible claimant had the decedent lived, then the surviving loved ones probably have no claim.
For example, the mother of a child who died due to the alleged negligence of the father was prevented from receiving an award, because the child, if he had lived, could not have sued the father. The wife of a man who died was prevented from receiving an award from a minor child who allegedly caused the man’s death, because the husband/father, if he had lived, could not have sued the minor child.
What is the statute of limitations for a wrongful death claim?
After a tragic death, surviving loved ones understandably go through a time of grieving and sometimes rebuilding their lives. However, survivors should not delay too long in investigating their legal rights related to a wrongful death.
In Oklahoma, the statute of limitation for most wrongful death claims is two years from the date of death. A legal action must be filed during that two-year period to preserve the estate’s claim. Because it can take a few months to prepare a petition for filing, survivors should not wait too long to talk with an attorney.
There are some situations in which the statute of limitations may extend beyond two years:
A surviving child who is a minor has until one year after reaching the age of majority (in other words, one year past one’s 18th birthday) to bring a wrongful death action.
The statute of limitations in a wrongful death due to medical malpractice may be affected by the discovery rule. If discovery during a malpractice case sheds new light on the cause of death, the two-year limit for a wrongful death claims begins not with the date of death but with the date when the plaintiffs learned the cause of death.
What kind of attorney handles wrongful death claims?
ELIAS & ELIAS ATTORNEYS AT LAW