Laws are constantly changing to keep pace with the norms, beliefs and demands of society. Personal injury attorneys like Adam Kutner know that one segment of personal injury law that has seen the most dramatic change is when someone dies due to the negligence of another person.
At one time, the family of a person who died from injuries sustained in an accident did not have the right to sue the person who caused the loved one’s death. This was in keeping with the prevailing view that it was morally wrong to attempt to put a value on the life of a fellow human being. Changes in people’s beliefs eventually led to England adopting legislation in the mid-1800s allowing the families of accident victims to recover damages on behalf of their deceased relative.
Every state in the United States followed England’s lead by passing laws allowing the claim for damages of an injured victim to survive the person’s death. The newly created cause of action, known as a survival action because it survived the death of the injured person, permitted the estate of the deceased victim to file a lawsuit for the damages the person suffered before dying.
States soon passed legislation creating a cause of action to compensate the spouse and children of the victim for the loss of their loved one. A wrongful death action is a lawsuit in which family members designated by statute, usually the spouse and children, can recover damages for the income and other financial benefits lost through the death of the accident victim.
Las Vegas personal injury attorney Adam Kutner cautions relatives of a person killed in an accident that Nevada law does not authorize all family members to file a wrongful death action. The statute limits wrongful death actions to only those relatives of the deceased who would be entitled to share in the estate if the person died without leaving a will. This limits wrongful death actions to the victim’s spouse, children, parents and siblings. It excludes a victim’s domestic partner, stepchildren or fiancé.
A wrongful death action is personal to the heirs designated in the statute creating the cause of action. As a result, damages are limited to the lost support, loss of companionship and pain and suffering attributed to the death of the accident victim. It is common practice for a wrongful death claim and a survival action to be joined as a single lawsuit, but the two causes of action remain separate and apart from each other. A decision by the estate to settle the survival action does not affect the wrongful death claim by the surviving family members.
Personal injury attorney Adam Kutner knows the problems that can arise when parents bring a wrongful death action to recover damages in the death of a child. It is difficult for judges or jurors to determine the future earning capacity of the child and the financial contribution the child might have made to the parents. This is one reason that wrongful death cases involving children can be extremely difficult.