Q & A Regarding Florida’s Wrongful Death Laws
July 11, 2011
Q. What is a wrongful death lawsuit?
A. A wrongful death claim generally consists of four elements: (1) the death was caused, in whole or part, by the conduct of the defendant; (2) the defendant was negligent or strictly liable for the victim’s death; (3) there is a surviving spouse, children, beneficiaries or dependents; and (4) monetary damages have resulted from the victim’s death.
Q. What are some types of wrongful deaths in Florida?
A. Florida wrongful deaths can result from any of the actions listed below:
- Construction site accidents: Bulldozer accidents, scaffolding falls, cement mixer accidents, passing vehicular accidents, dangerous premises, contractor accidents due to faulty back up alarms, chemical exposures, etc.
- Medical malpractice: Surgical errors, delayed diagnosis, death at birth delivery, failure to monitor patients causing unnecessary loss of life, wrong prescriptions or negligent administration of medications causing overdose, negligent administration of injections, operating room fires, etc.
- Automobile accidents: Car accidents, motorcycle crashes, highway crashes, drunk driver, 18 wheelers accidents, auto accidents, and hit and run; accidental homicide, pedestrian deaths caused by negligent and faulty drivers, etc.
- Defective products:Failure to provide warnings, inappropriate assemblage instructions, malfunctioned engines, improper canning, poisonous food, and food poisoning; failure to provide adequate warnings regarding dangerous chemicals; etc.
- Drowning: Failure to provide adequate supervision, lighting, negligently maintained swimming pools causing deaths and/or drownings, failure to post warnings at swimming pools, failure to provide adequate safety equipment, render help, failure to provide warnings in public swimming places, regarding rip currents, low tide, failure to post “no-diving” signs where diving poses dangers to life and limb, failure to provide safe diving platforms; failure to stage medical personnel and medical equipment on shore to deliver prompt medical assistance to swimmers in distress at competitive events such as triathlons; failure to implement emergency rescue protocols for swim related activities at competitive events such as triathlons, etc.
- Watercraft accidents: Boating accidents, jet ski accidents, cruise ship accidents, etc.
- Premises liability: Slippery floors, uneven walkways, escalator and elevator malfunctions, defective stairwells or steps, and tripping accidents over materials on floors, defective walkways and paths; violent crimes including murders and deaths caused by lack of or inadequate or negligent security; dog or other violent animal attacks on premises due to faulty supervision of wild or dangerous animals, etc..
- Plane crashes: Helicopter crashes, jet plane crashes, cargo planes, plane propeller malfunctions causing crashes and others, causing serious injuries and/or deaths.
Q. How does Florida handle wrongful deaths?
A. The Florida Law governing wrongful death is called “the Florida Wrongful Death Act” which is part of the Florida statutes (Sections 768.16 – 768.26).
Q. Who may receive compensation under the Florida Wrongful Death Act?
A. The Florida Wrongful Death Act defines survivors as follows:
- The decedent’s spouse;
- The decedent’s children’s born of a marriage;
- A decedent mother’s children born out of wedlock;
- A decedent father’s children born out of wedlock if the father, prior to his death, recognized a responsibility for the child’s support;
- The decedent’s parents
- Any blood relative partly or wholly dependent on the decedent for support or services;
- Any adoptive brothers and sisters partly or wholly dependent on the decedent for support or services.
Q. What type of damages or monetary compensation is available according to Florida’s Wrongful Death Act?
- Each survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
- The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
- Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
- Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
- Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.
- The decedent’s personal representative may recover for the decedent’s estate the following:
- Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
- If the decedent’s survivors include a surviving spouse or lineal descendants; or
- If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
- Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).
- Evidence of remarriage of the decedent’s spouse is admissible.
- All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.
- The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).
The law firm of Lawlor Winston provides the very best representation to their clients – ensuring they are represented at the highest and most effective levels, focusing on protecting the rights of individuals and families. Practice areas include Catastrophic Personal Injury including Wrongful Death, Auto Accidents, Premises Liability, Insurance Bad Faith Disputes, Professional Malpractice, Commercial Litigation, Maritime/Admiralty, Labor & Employment Disputes and ERISA Claims. The firm is headquartered at 2211 Davie Blvd, Ft. Lauderdale, FL 33312. They may be contacted at (954) 525-2345. Additional information about Lawlor Winston may be obtained from the Firm’s website at www.lwmcruiseinjurylawyers.com.