Wrongful Death Overview
A wrongful death claim arises when a death is caused by the wrongful act or omission of another person or entity. Oregon has recognized a statutory claim for wrongful death dating back to 1862.
Who Can Recover?
Oregon law identifies a class of beneficiaries that may assert a claim for wrongful death. This class includes the spouse, children, parents, stepchildren and stepparents of the deceased. To avoid multiple lawsuits stemming from the same incident, Oregon law requires that a wrongful death action be brought in the name of a personal representative, on behalf of all the beneficiaries. The proceeds of the lawsuit are then divided among the beneficiaries by agreement or, if necessary, as directed by the court.
The personal representative stands in the shoes of the person that died known as the decedent asserting whatever rights the decedent possessed at the time of death. If the decedent could not have sued the wrongdoer had the decedent lived, then the personal representative cannot sue for wrongful death.
A wrongful death lawsuit is filed by the personal representative on behalf of the estate of the decedent. The personal representative has fiduciary obligations to the estate of the decedent and the other obligations. If the personal representative abuses his or her authority, the beneficiaries may respond by filing a lawsuit against the personal representative.
What if the Incident Occurred at Work?
If a persons death is caused by the negligence of his or her employer, a claim under the workers compensation system often is the only remedy available. Unfortunately, the workers compensation system does not provide full compensation to the surviving family members. There are limited exceptions to the rule that says workers compensation is the exclusive remedy for deaths occurring on the job, such as when the employer fails to pay for workers compensation coverage or intentionally injures the worker.
However, sometimes there are persons or entities besides the employer that share responsibility for the wrongdoing that caused the workers death. Claims against these parties are not limited by the workers compensation system. In addition, special rules apply for death claims involving certain types of workers, such as federal employees, railroad employees, longshoremen, and workers subject to Employer Liability Law (ELL), among others.
Categories of Damages
Compensation in a wrongful death case can include:
- Charges for medical expenses and funeral services.
- Pain, suffering and loss of income suffered by the decedent between the time of the injury and the death.
- Pecuniary loss to the decedent’s estate. This loss is calculated as the amount of savings the decedent would have retained during the remainder of his or her life.
- Pecuniary loss of beneficiaries. This is the loss of financial assistance and support that the decedent would have provided to the beneficiaries.
- The value of the society, companionship and services the decedent would have provided to the beneficiaries. This category includes items like the value of a parents instruction and moral training. It also includes the value of contributions the decedent would have made around the home, such as cleaning, fixing things, tending to the yard, and generally contributing to the household. There is no fixed formula for calculating the value of this category. Instead, the jury is instructed to consider, among other things, the age, ability, life expectancy, health, habits, industry, sobriety and thrift of the decedent.
- Punitive damages. Such damages are allowed in cases where the defendant has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm, and has acted with a conscious indifference to the health, safety and welfare of others. Punitive damages are not available in cases involving ordinary negligence. Instead, it must be proved that the defendant engaged in a conduct that is much more culpable.
Wrongful Death vs. Survival Action
If a person is injured due to the wrongdoing of another, but dies of causes unrelated to the injury, then the personal representative may pursue a survival action. In a survival action, the personal representative seeks compensation for pain, suffering, disability, and loss of income suffered by the decedent between the time of the injury and the death. The losses suffered by the beneficiaries are not part of the survival action claim.
The prevailing party in a survival action may recover reasonable attorney fees and costs.
The personal representative may plead both a survival action and a wrongful death action in the same lawsuit as alternative theories of recovery. If the personal representative prevails on the wrongful death claim, the survival action is subsumed within the wrongful death action. If the personal representative does not prevail on the wrongful death claim due to a failure to prove that the injury caused the death of the decedent, then the personal representative can still prevail on the survival action claim.
Do Not Delay
If you have lost a loved one and are considering a wrongful death claim, it is important to act quickly. Critical evidence can be lost if not preserved right away. Additionally, the law provides strict deadlines for bringing a wrongful death claim. If the responsible party is a public body such as a state, county or city, the deadlines are even shorter, and additional notice requirements may apply. Shorter deadlines also apply to certain types of claims, such as those involving asbestos or breast implants, among others. In any case, if you wait too long to take legal action, you may lose your right to seek compensation. Rob Kline is available to discuss your legal rights. Call today and request a confidential, free case evaluation.