Prior to the 19th century, wrongful death and survivor statutes did not exist. Back then it was only the injured person who could bring forth a legal claim (“tort”) for any wrongdoings done against them. The family or heirs of a person who died as a result of another person’s negligence, carelessness, or intentional act could, therefore, not sue. Basically, when the injured party died, so did the legal claim.
Thankfully, things today are different, and the estate of a deceased person can sue for wrongful death per Florida statutes section 768.19. Our state defines wrongful death as death that can be attributed partially or wholly to the wrongful act, default, negligence, or breach of duty by another person or entity.
Wrongful death may occur in a wide variety of situations.
Examples of conditions that may lead to a wrongful death claim:
• Automobile accidents
• Nursing home abuse and neglect
• Medical malpractice
• Work-related accidents
• Product liability
A person who brings a wrongful death lawsuit in Florida’s courts seeks legal remedy for:
● The death of their loved one
● Conscious pain and suffering
● Any financial losses and expenses stemming from that death
Essentially, the restitution for a wrongful death claim helps in relieving the financial burden caused by the death of a loved one – but only if you win. How do you do this? By proving the existence of four particular elements in your case:
● Defendant owed a duty of due care to the decedent
● Defendant breached that duty
● Defendant caused harm and ultimate death of the decedent by breaching that duty
● That the death of your loved one resulted in specific, quantifiable damages
Let’s break those elements down further and discuss how they can be proven.
Proving Duty of Care
For you to prove that the wrongful death was caused by negligence, you must demonstrate that the accused owed the decedent a duty of due care. The due care owed depends on the specific nature of your case. The court will ultimately determine whether a duty was indeed owed.
A driver, for instance, owes the public a duty of care to operate his/her vehicle as a reasonably prudent individual would. As such, that driver may be sued for wrongful death if they drove reckless and unfortunately killed someone.
Proving Breach of Duty
After proving to the court that a duty of due care existed, you must then show that the defendant breached that duty.
You may, for example, provide evidence to show that the reckless driver breached his/her duty of responsible driving by speeding or driving while intoxicated.
Proving Causation of Death
The next step after establishing that the defendant breached his/her duty is to prove that it was the negligent/reckless actions of the defendant that killed the deceased.
Depending on the specific facts of a wrongful death case, proving causation can either be very easy or quite complex.
The court will look at both direct and circumstantial evidence. Because of this, you need an experienced Florida injury attorney to clearly define the defendant’s wrongful act, negligence, or omission.
You could use any of the following pieces of evidence in your case:
● Police reports
● Pictures and video footage of the accident
● Medical records of the deceased
● Witness testimonies
● Medical expert testimonies
● Other expert’s testimonies
● Forensic data
It is possible to lose a wrongful death case because you are unable to prove that you (the plaintiff) suffered real and quantifiable harm. You must, therefore, provide sufficient evidence that clearly shows the nature and extent of damages suffered.
In wrongful death cases, damages can include things like:
• Medical bills
• Funeral costs
• Loss of support
• Loss of companionship
Florida state law allows a representative of the estate of the deceased person’s estate to bring a wrongful death suit to court. Recovery may be made by a surviving spouse, children, immediate family members, or the parents of a deceased child or fetus.
About the Author:
John K. Lawlor, a South Florida personal injury attorney who focuses his practice on complex personal injury, wrongful death, and professional malpractice, founded the law firm of Lawlor, White & Murphey in 1998. Since 1995, Mr. Lawlor’s trial advocacy and litigation skills, as well as his wide-ranging legal expertise, have provided plaintiffs and their families with a distinct advantage when seeking financial compensation and justice for injuries caused by the negligence of others. Mr. Lawlor is an EAGLE member of the Florida Bar Association and an active member of the American Association for Justice, the Broward County Justice Association, the American Civil Liberties Union (ACLU), and several professional associations.