Louisiana law limits the class of people who can file a wrongful death action. Find out which family members can file a wrongful death lawsuit in Louisiana.
Death is an inevitable part of life. This means that sooner or later, everyone dies, and it’s better if it happens naturally at an old age. However, not everyone gets to die naturally, as accidents happen that end fatally. If such an accident is the fault of another person, Louisiana law deems it a wrongful death. As such, the deceased person’s family members can file a wrongful death claim to recover financial compensation for their loss.
While it appears easy enough, not every family member can take legal action against the responsible party. In this article, our wrongful death lawyers at Wright Gray discuss the family members who can commence a wrongful death action. If you lost a loved one due to another person’s negligent actions, our attorneys could help you get compensation.
What Qualifies as Wrongful Death?
Under the Louisiana Civil Code Section 2512.2, a wrongful death claim is one that the legal beneficiaries of a deceased person file when a person dies because of another’s fault. For example, the action could be negligence or an intentional act. For this reason, the law allows the estate of the deceased or their family members to get compensated.
To have a valid wrongful death lawsuit, the dead victim must have had a valid personal injury claim had they lived. It means that the person would have been entitled to compensatory damages from the fault party if they had not died. Most wrongful death actions arise from the following accidental occurrences:
- Aircraft accidents
- Birth Injuries
- Motor vehicle accidents
- Defective product
- Medical malpractice
- Premises liability
- Boating accidents
- Workplace accidents
- Criminal action
- Maritime accident
- Construction accident
What Are the Four Key Elements of a Wrongful Death Lawsuit?
A wrongful death action is a civil lawsuit and is determined on a preponderance of the evidence. So, a plaintiff must have valid grounds before commencing the case. This is because if there is no adequate evidence to back the claim, it will fail. Below are the key elements a plaintiff must prove to win a wrongful death suit.
Duty of Care
A duty of care is the responsibility that people in certain situations and positions owe other people. For example, a driver owes other road users a duty of care to drive carefully when on the roadway. Hence, an intoxicated driver who causes a drunk driving accident where a person dies would have breached this duty. Similarly, a doctor who misdiagnosed a patient and the patient dies would be liable as they failed to use a reasonable “standard of care.”
Breach of Duty
A breached duty means performing an act contrary to what the law stipulates or what a reasonable person would have done in the same situation. A plaintiff in a wrongful death case must show how the defendant breached the duty of care. For instance, if a product defect caused the accident, the plaintiff must establish the defect and the manufacturer’s failure to warn the public of the danger.
Every wrongful death lawyer would tell you that it is not enough for a duty of care and a breach to exist. You must show how the breach caused the death of the deceased. For example, let’s consider a medical negligence case. Even if the defendant misdiagnosed the victim, they would not be liable for their death if an underlying medical condition led to the demise. However, if the misdiagnosis aggravated the existing situation, the defendant would have caused the victim’s demise.
Lastly, the plaintiff must show that they suffered damages (losses) from the defendant’s action. Aside from the victim’s death, the plaintiff must show they suffered financial losses, as well as emotional trauma. Once they can prove all these elements, they would be entitled to economic damages and non-economic damages. These cover the following:
- Medical expenses
- Loss of consortium
- Pain and suffering of the injury victim before their death
- Loss of companionship
- Loss of income
- Loss of potential earnings
- Loss of protection, guidance, and inheritance
- Cost of funeral arrangement and burial expenses
Furthermore, if the victim was in a fatal car accident, the plaintiff might be able to recover compensation for property damage. In addition, if the case has evidence of gross or intentional negligence, the plaintiff may get punitive damages. However, punitive damages are not compensatory but exemplary to deter similar reckless acts in the future.
Which Family Member Can Bring a Wrongful Death Claim in Louisiana?
In Louisiana, not every relative of a deceased person can file a wrongful death lawsuit. Under the civil code, the following class of family members can file a suit to recover economic losses:
- The surviving spouse and child or children of the deceased, or either the spouse, child, or children
- The surviving father and mother of the decedent, or either of them if they left no spouse or child surviving.
- The surviving brothers and sisters of the deceased, or any of them, if they left no spouse, child, or parent surviving.
- The surviving grandfathers and grandmothers of the deceased, or any of them, if they left no spouse, child, parent, or sibling surviving.
In addition to the above, an adopted family member may file a wrongful death lawsuit. If the victim has no surviving family member, their estate could commence the action. Notably, a parent who abandoned the deceased person during their childhood cannot file a wrongful death claim.
Furthermore, most wrongful death actions include a criminal charge against the defendant. But the criminal suit is separate from the wrongful death suit. Thus, while the defendant in a wrongful death lawsuit would compensate the victim for monetary losses, they would face jail time, a fine, or both in a criminal case. Consult a wrongful death attorney for more differences between both actions.
What Is the Statute of Limitations for a Louisiana Wrongful Death Lawsuit?
Like personal injury claims, you have a limited period to commence a wrongful death lawsuit. This time limit is provided for in the Statute of Limitations. In Louisiana, family members of a deceased person must start the action one year from the date of death. It means the time starts counting from the day the person died.
If the family members fail to commence the action within that time, the case would be statute-barred, and the courts will not entertain it. Consequently, the victim’s family misses out on their chance to receive a financial settlement and will shoulder the economic hardship from the loss alone. This is why we recommend that families of deceased victims consult with a wrongful death attorney immediately after a loved one dies.
Contact Us at Wright Gray Today!
Having to deal with the untimely death of a loved one is quite painful. It’s worse when you have to handle the costs of their medical care and funeral expenses alone. Thankfully, Louisiana law makes it possible for families of deceased victims to get compensated by the fault party. The wrongful death lawyers at Wright Gray have helped several families get a settlement, and we can do the same for you. We work on a contingency fee basis and offer a free initial consultation. So contact us today to get started.