Losing a child is an unspeakably awful experience. The wounds remain for life, and there is no way to fill the hole that is left. Not only are the parents left with trauma and lifelong grief, but they may also suffer in other ways. They can be rendered incapable of handling other aspects of life, and they need help as they recover emotionally. When a child’s death is caused by someone else, you may be able to sue that person for wrongful death.
What Are the Grounds for Wrongful Death?
Wrongful death is a kind of personal injury lawsuit. In personal injury law, one party sues another for financial damages. The defendant, the person being sued, was negligent in their behavior. The plaintiff, the person filing the lawsuit, was hurt as a result of this negligence. These cases take place in a civil court. Defendants who lose in civil court are not punished with jail time, but they are ordered by the court to compensate the plaintiff. The difference between wrongful death and other personal injury cases is that the injured party did not survive.
Most personal injury suits center around “negligence.” This means that the defendant failed to take an action, and the plaintiff was directly hurt by that inaction. Slip and fall cases are a prime example of this. A store owner has a duty to keep their aisles and parking lots free of danger. If they leave a slick surface unattended and unmarked, they are responsible for any injuries that result. In a wrongful death case, the person who fell did not survive.
Negligence is not the only grounds for a civil case. Sometimes, the plaintiff accuses the defendant of willfully causing harm. In that case, you are suing someone for a “tort,” which is the legal term for willful harm. In a fight that resulted in death or in a murder, you can sue the alleged killer for the death of your loved one. The damages could be compensatory as in a negligence case, but they could also be punitive. Punitive damages are designed specifically to punish a defendant for their behavior.
If you lost a child due to someone’s willful behavior, that case should be handled in a criminal court. The offender has broken the law and victimized you, and they should be tried for their crimes against society. However, it is still possible to sue them, even when they have been tried in criminal court. It does not matter if they were found guilty or not. Criminal court demands that people are found guilty “beyond a reasonable doubt,” meaning the jury must be completely convinced of the defendant’s guilt. In a civil case, only a “preponderance of evidence” is necessary to rule in favor of the plaintiff. The jury must be only 51% or more certain of the defendant’s liability.
If you wish to pursue a wrongful death case against someone who has already been criminally convicted, keep their present situation in mind. Inmates often have no real income, which can make them “litigation proof.” If you are suing them for monetary damages, they may not be able to pay if they lose the case. Have your lawyer research the potential defendant’s ability to compensate you before moving forward with the case.
Who Can File?
When an adult is killed, someone representing the estate can file a wrongful death suit. People named in the will can file, as can the deceased’s parents or adult children. When a child has died, only their legal parents or guardians can file a wrongful death lawsuit. Since the child has no estate to speak of, there are no estate representatives who can sue on their behalf.
What Kind of Damages Can You Receive?
Wrongful death suits are commonly used to recover the financial loss associated with the death. Perhaps the deceased was the breadwinner at home, or they were on the verge of a big step in their career. In a very pragmatic sense, their death creates a financial burden on the home. You can sue their alleged killer to recover lost income, helping to ease the transition into living without them.
Direct economic loss will not usually be an issue in the death of a child. There are very few children who bring income into the home. However, your employment could have been affected by your grief. We are increasingly aware of how large a role mental health plays in everyday life. Parents who have lost children may be incapable of working for long stretches of time, perhaps permanently. Maybe their performance at work dropped so drastically that they lost their job or their promotion. These are examples of lost income that could be compensated in a wrongful death suit.
Texas also allows compensation for mental anguish, sometimes called “pain and suffering.” Using a complicated mathematical system called a “multiplier,” a dollar amount is multiplied by the amount of days in which the parent has suffered. The product is the amount requested in the suit. While no amount of money will ever ease the pain, it can at least provide extra security for parents in their time of healing.
If someone else’s actions have robbed you of your child, contact us online or by phone at (817) 591-4222. We are here to listen and help guide you through this difficult time.