If someone you care for has passed away due to the negligence of another, you need legal guidance from a Winston Salem Wrongful Death Lawyer to decide your next steps. Losing a loved one is very painful and is especially so when their death was caused by the wrongful act of another.
Surviving loved ones of those who have died unexpectedly may be eligible to file a wrongful death lawsuit against the individual or company responsible if they want to seek compensation.
The wrongful death attorneys of The Bishop Law Firm are committed to helping surviving family members seek justice for the unexpected and wrongful death of loved ones.
North Carolina Workers' Compensation or Personal Injury Claim?
Your loved one's wrongful death claim could be handled under NC General Statute 28A-18-2 or if they were harmed during a workplace accident, through NC Workers' Compensation law. This article discusses wrongful death outside of the work context. If your loved one was harmed at work read about Death Benefits in NC Workers' Compensation.
Dealing with the traumatic loss of a loved one
After suffering the unexpected and wrongful death of a loved one, grieving can be especially painful. Traumatic loss can result in a longer, more difficult bereavement period and even PTSD (via NIH). The most important outcome of grief is to allow you and your family to live fully again. We wish you and your family peace in your time of loss.
What is Wrongful Death?
Wrongful death claims can arise from car accidents, slip and falls, premise liability, work injuries, to name a few. If someone else's actions led to the death of your loved you, a wrongful death claim should be explored.
In order to have a wrongful death claim, it must be established that the party that caused the death was negligent and that their negligence was the cause of the death.
While negligence can be easily described here as 1.)duty owed, 2.)breach of that owed duty and 3.) said breach was the actual/proximate cause of the injury, it is rarely easy to establish negligence under the law.
Some of the clearer duties under North Carolina law are: a duty of a driver to drive reasonably as to avoid harm to others; a duty of a property owner to warn invited visitors of hidden known dangers; or a duty of an owner to keep dangerous animals restrained to their property.
It naturally follows that if a driver drives recklessly and causes a car accident; a property owner does not warn visitors of said danger; or if a dangerous animal is not restrained, a breach of the owed duty has occurred.
But simply because there has been a breach of duty does not mean that negligence has been established. The breach must be the actual and proximate cause of the injury. If the reckless driver drove recklessly and caused an accident which resulted in death to other drivers, you then have negligence (wrongful death occurs).
However, the at-fault party's negligence can be terminated by the negligence of the victim. If the above car accident victim was also speeding or driving recklessly themselves at the time of the accident, they generally cannot recover under the bar of contributory negligence.
Unfortunately, North Carolina is one of the last contributory negligence states, which means that if your loved one was even 1% at fault for the incident causing their death, their estate cannot recover (but see Last Clear Chance Doctrine ).
How long do we have to file a NC Wrongful Death Claim?
Unlike other personal injury cases in North Carolina, Wrongful Death claims generally have a two year statute of limitations (GS § 1-53). This means that litigation must be filed prior to two years passing after the wrongful death. There are a few exceptions to the two-year statute, but they are narrow.
Also read North Carolina Wrongful Death Lawyer
Who Can File a Wrongful Death Lawsuit?
A North Carolina wrongful death claim allows the deceased person's personal representative to have a claim against the at-fault party for their negligence which resulted in the injury to the deceased person.
A personal representative can either be an executor (deceased had a will) or administrator (deceased did not have a will). If the will designated the executor, that person will be the personal representative. If the deceased died without a will or did not designate a executor, North Carolina law follows this order: (1) the surviving spouse, (2) anyone receiving property under the will, (3) anyone who would receive property if there was no will, (4) any next of kin, (5) creditors of the decedent, (6) anyone of good character living in the county (via NCCourts.gov).
In order to start the process of appointing a personal representative (and thus a Wrongful Death claim), the first stop should be at the Clerk of Court with the will (if there is one), death certificate, an application and preliminary inventory of the decedent’s property; and a $120 filing fee in hand.
You can also hire an estate attorney to help you with this.
What Can You Recover From a Wrongful Death Claim in Winston Salem?
Under North Carolina’s wrongful death statute, there are four types of compensation to be awarded to the estate of the decedent proximately caused by the negligence of the at-fault party (§ 28A-18-2).
These damages include expenses for care, treatment, and hospitalization incident to the injury resulting in death; the deceased’s pre-death pain and suffering; reasonable funeral and burial expenses; and the present monetary value of the decedent to the persons entitled to receive the damages recovered. The statute also allows for compensation in the form of nominal and punitive damages.
Some of the above are straightforward, while others are not. Medical expenses and funeral expenses are all readily accessible amounts, but how do you value the present monetary value of a deceased person or the deceased’s pre-death pain & suffering?
Through North Carolina case law, the courts have determined a way to evaluate the present monetary value of a deceased person to their surviving family members.
There is no fixed formula, but the courts allow jurors to consider several factors to calculate these damages. The factors include the net income which the deceased would have earned during the remainder of their life; the services, protection, care, and assistance provided by the decedent to their next-of-kin; and the society, companionship, comfort, guidance, kindly offices, and advice the deceased would have offered to their surviving family members but for their wrongful death.
Valuing pain & suffering for a living person can be difficult but valuing it for a deceased individual is doubly so because the deceased person cannot tell you what they went through. Fortunately, a thorough examination of the circumstances surrounding their death, the deceased’s medical records, as well as statements from witnesses, surviving family members, and friends, can all be used to bolster recovery for your loved one’s pain and suffering.
Punitive damages are also provided for in the G.S. 28A-18-2: "such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5."'
As we have written before, punitive damages may be awarded to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts. The statute goes further to say that one of the following aggravating factors must be present: fraud, malice, or willful or wanton conduct.
Punitive damages are not awarded for simple negligence, the negligence must rise to the level of "gross negligence". The best example is of a drunk driver who causes a car accident in which the victim passes away from their injuries.
Punitive damages will not be available in all cases, but their applicability should be thoroughly investigated in wrongful death cases.
Also see North Carolina Punitive Damages
Contact a Winston Salem Wrongful Death Lawyer Today
A wrongful death lawyer serving Winston Salem, NC will be able to help you navigate the stressful and often exhausting process of successfully investigating and bringing a wrongful death case to court and can provide a jury with guidance on the true cost to society caused by the loss of your loved one.
A personal injury attorney that handles Wrongful Death actions can help with gathering evidence to determine all medical bills, funeral costs, damages suffered (emotional pain and financial support lost) and complete a thorough investigation as to how a victim's family can receive fair compensation for their loved one's death.
Call The Bishop Law Firm to discuss your wrongful death lawsuit with an experienced Winston Salem wrongful death attorney today. We provide free case consultations regarding your legal options for receiving compensation and we do not get paid unless we win your case.
Also read North Carolina Personal Injury Lawyers
