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When we lose a loved one, we are emotionally overwhelmed. There are feelings of grief, pain, and bewilderment. But there may also be feelings of anger and stress. If your loved one died because of either negligence or intentional harm, you might have a wrongful death claim. A wrongful death claim is a type of personal injury lawsuit in which the injured person is no longer alive and able to file the claim. Therefore, another party brings the claim on behalf of the deceased.
If you have lost a loved one to a Charleston-area accident or incident that wasn’t your loved one’s fault, then read on to learn more about how the Hughey Law Firm can help.
A wrongful death claim can be filed when a person is killed as the result of an intentional harmful act or negligence on the part of someone else. If the victim had lived, he or she would have had a personal injury claim. Almost any kind of personal injury claim can turn into a wrongful death action, such as:
The burden of proof for a wrongful death claim in South Carolina is the same as that of a personal injury lawsuit. Generally speaking, the survivor of the person who died must show that the defendant owed a duty of care and that he or she breached that duty. The breach of duty must be a proximate and foreseeable cause of the death. The survivor must also prove that the death caused the damages sought. It may sound simple, but in some cases, each of these elements may be difficult to prove and require expert evidence, as well as the skills of an experienced attorney.
Under South Carolina law, a wrongful death is one caused by the “wrongful act, neglect, or default” of another. It must be the type of action for which the victim could have filed a personal injury lawsuit if he or she had lived. Surviving family members are usually the beneficiaries of the lawsuit, in the following order:
If the deceased was a minor, the beneficiaries (usually his or her parents) were probably not financially dependent on the minor. Even though they cannot show a monetary loss, they are presumed to have significant intangible losses, which are recoverable.
South Carolina law requires that the executor or administrator of the deceased person’s estate file any wrongful death claim. The executor or administrator would be the person named as such in the estate plan of the deceased. However, if the named person is unable or unwilling to serve, or the deceased person does not have an estate plan, the court may name an executor or administrator. Even though the executor or administrator files the wrongful death claim in court, he or she is pursuing the claim on behalf of the victims surviving family members.
The parties to the action can agree on a distribution of damages, but any settlement must be approved by the court following a hearing.
Death leaves the surviving family financially and emotionally devastated. Most damages are compensatory. These include tangible losses, such as funeral bills, medical bills, or lost wages. Intangible damages include such injuries as emotional trauma or loss of the love, support, and guidance of the deceased. In cases where the actions of the defendant were excessively negligent, reckless or intentional, the court may award punitive damages. Punitive damages may be awarded where the decedent was murdered, even if the defendant was proven not guilty in a criminal case.
In a wrongful death lawsuit, determining the compensation for injuries can be complicated. The law considers the injuries experienced by the victim from the time of the action which caused the death, until the actual death. In a car accident, for example, this might be the time from the collision until the victim’s death from the accident injuries. This time period might be a matter of hours, or much longer. The law also compensates the family or heirs for the losses they suffered after the death of the victim. Damages awarded in a wrongful death lawsuit in South Carolina may include:
Two damage caps limit the amount of damages that a plaintiff can receive. There is a cap on the amount of damages a plaintiff can receive in a wrongful death lawsuit based on medical malpractice. There is also a cap on punitive damages.
A wrongful death claim in South Carolina must be filed before the legal time limit, or “statute of limitations,” expires. Therefore, you need to consult an experienced Charleston wrongful death attorney as soon as possible.
Wrongful death is a tragedy, and dealing with the aftermath of the death of a family member is incredibly difficult. While nothing can truly compensate you for the loss of a loved one, a wrongful death claim can hold the responsible party accountable and help you with expenses. Your attorney can investigate your case, advise you of your options, guide you through the legal process, and protect your rights.
To arrange a free initial consultation with one of our experienced, compassionate Charleston wrongful death lawyers, call (843) 881-8644 or contact us online.
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