Lawyer Pages

Death by Negligence| - Wrongful Death Negligence

What is wrongful death by negligence?

It’s a death that is caused by the negligence of another person, company or entity. In legal terms, negligence is a “tort.” A tort (a wrong) is generally defined as an injury or other loss caused by unintentional conduct. The tort of negligence protects the right of everyone to be free of injury or loss to his or her own personal well-being and property that is caused by the negligence of another and or others.

What are the rights of a victim’s family in these cases?

A victim’s immediate family - spouses, children and sometimes, parents – can sue those involved in the death. But the lawsuit must be filed by a personal representative of the victim, someone named in the victim’s will; or someone appointed by a probate court. In Texas, the case comes under the Texas Wrongful Death Act in the State’s Civil Practice and Remedies Code, Article 71.002 (2007).

What does the victim’s attorney have to prove in court to win the lawsuit?

Four elements must be present for a personal injury attorney representing a victim’s family to win a death-by-negligence lawsuit. The attorney must show:

The defendant(s) had a duty to exercise reasonable care to avoid the victim’s death or the injury that resulted in the victim’s death.
The defendant(s) breached that duty with unreasonable conduct. (The defendant(s) could tell in advance that the conduct might cause the death of another in spite of any burden or inconvenience caused by taking the necessary precautions to prevent it.)
The unreasonable conduct of the defendant(s) was the actual cause of the victim’s death; that it was a foreseeable consequence of the conduct of the defendant(s); and that there is no reason why the defendant(s) should not be held liable.
The victim’s death caused his or her family to suffer actual harm and loss.

How do attorneys defend those accused of negligence?

Defense attorneys will try to show that:

The defendant(s) owed no duty to the victim.
The victim’s death was not foreseeable.
The burden or inconvenience on the defendant(s) to avoid the risk of potential death outweighed the actual risk of death.
The victim’s activity had such significance and social importance or utility that it justified the risk of injury or death caused by that activity.
The victim’s death was the result of a superseding, intervening cause that was highly extraordinary.
The victim took unreasonable risks with his or her own safety and thereby contributed to the negligent death.

Money can be awarded to victims

Money (damages) can be awarded to the victim’s family to make up for the loss of benefits flowing from the love, comfort, companionship and society of the victim. Damages also can be awarded for the emotional pain, torment, and suffering of the victim’s family as a result of his or her death. When considering whether to award damages, juries in wrongful death cases are instructed to consider: 1) the relationship between husband and wife, or a parent and child; 2) the living arrangements of the parties; 3) any absence of the victim from the beneficiary for extended periods; 4) the harmony of family relations, and 5) common interests and activities.

Personal injury attorneys stand up for victims

Personal injury attorneys are the legal profession’s front line troops when it comes to assisting victims and holding negligent individuals, companies, or entities accountable for their unintentional misconduct. There are three main categories of torts (wrongs) in civil cases: negligence, intentional torts, and strict liability torts. Negligence is the largest category of the three.