Driving poses a risk to your life. While it is not immediately apparent, various aspects beyond your control when driving increase the risk of a car crash that results in injuries, some of which are fatal. Factors including drunk and dangerous driving, adverse weather conditions, and poorly maintained roads significantly increase the risk of car crashes. When a loved one dies in a car crash, the surviving members of his/her family are left to deal with the consequences of the loss.
Is there a reprieve for them?
Yes, there is. Surviving members of a loved one can seek compensation in a wrongful death lawsuit to deal with the loss from negligent parties. The payout will help you manage life after your loved one’s demise. At Las Vegas Car Accident Attorney Law Firm, we offer legal assistance to plaintiffs seeking just compensation for wrongful death.
What is Wrongful Death
Car accidents result from an individual’s wrongdoing. Under the law, the wrongdoing is referred to as negligence and is the basis of a wrongful death suit.
When filing a wrongful death suit, what you seek is compensation, which is only paid after you provide evidence of another’s negligence that resulted in the death of your loved one. That is, had it not been for the defendant’s negligent actions or inactions, the car accident would not have occurred, and thus your loved one would not have been killed.
After proving the defendant was negligent, the court awards damages to the plaintiffs payable by the defendant as compensation for the loss.
Wrongful death lawsuits are civil actions against negligent parties instituted by surviving loved ones or executors of the deceased will, aiming at receiving compensation. On the other hand, local district attorneys seek criminal prosecution to find the defendant guilty and have them serve time behind bars and pay fines or restitution to the victim’s family. Both legal actions are independent of each other.
Main Causes of Car Accidents
Understanding the causes of car accidents helps narrow down the potential defendants in a wrongful death suit. Several issues cause car accidents. However, three categories best summarize the common causes of car crashes:
Data from the Insurance Institute for Highway Safety (IIHS) show that out of the 36,096 fatalities reported in 2019, 304 of the total fatalities occurred in Nevada. Most of these fatalities resulted from driver negligence.
Drivers should exercise due care when driving by practicing safe driving habits and following traffic laws. Despite safe-driving awareness campaigns and sensitization efforts about the need for safe driving, a few motorists engage in negligent actions. Some of the more common dangerous driving practices include:
- Distracted driving, where a driver texts, calls, or engages in activities that distract him/her from paying attention to his/her driving
- Driving fatigue
- Reckless driving like speeding, weaving through traffic, unsafe lane changes, and racing
- Intoxicated driving or driving under the influence of drugs and/or alcohol
Failure By State Agencies
State agencies’ duties concerning road safety are to ensure proper maintenance of the roads are done regularly, street and road signs are availed, made visible, and replaced when vandalized or damaged. Additionally, state agencies should adequately inform motorists of any maintenance works in progress.
Failing to carry out their mandate as expected increases the risk of car crashes resulting in fatalities.
Vehicles should be safe and operable before being availed for use by the public. However, some cars are released with manufacturing defects that result in car crashes. It is disappointing that action by government agencies against manufacturers is only realized after several reports of accidents, some of which are fatal.
Adverse Weather Conditions
While roads tend to be more dangerous during the winter months, other weather conditions could significantly contribute to accidents. Snow, ice, and rain compromise traction with the road, thus causing uncontrollable skids that end in accidents.
Fog and bright sunshine, on the other hand, reduce visibility. Drivers in these situations either do not see oncoming traffic and end up in head-on-collisions or rollover and back-end collisions for drivers unfamiliar with the road.
Crosswinds and high winds too cause accidents by severely compromising a driver’s ability to steer vehicles, trucks, trailers, and buses.
Elements of a Wrongful Death Claim
As pointed out earlier, wrongful death lawsuits are civil actions against negligent parties. To file a wrongful death lawsuit, you will need the assistance of a personal injury attorney specializing in car accidents. The attorney’s help increases the likelihood of securing just compensation.
Who can file a wrongful death suit?
Wrongful death lawsuits can only be filed by:
- Personal representatives of the deceased’s estate and/or
- The deceased’s intestate heirs, a legal term referring to surviving family members
If the deceased was married, his/her spouse, intimate partner, or children are the heirs. If the victim is unmarried and childless, his/her parents, siblings, or the oldest surviving family member who was not a parent or sibling becomes the heir.
Nevada law NRS 41.085, the wrongful death statute, only acknowledges personal representatives and heirs as the only parties to claim damages. Therefore, significant others, close friends, and/or fiancees are ineligible to seek compensation.
As the plaintiff, you bear the burden of proving your case. You must demonstrate to the court that the defendant is liable for you to recover damages.
Wrongful death suits can have multiple defendants. You need to prove that the defendant owed the deceased a legal duty of care. That is why it is crucial to establish the cause of the accident.
A reliable personal injury attorney can utilize his/her resources to investigate the cause of the accident. Further, accident reconstruction experts aiding in the investigation will be valuable to the case. Once the cause of the crash is determined, your attorney can then conclude on who to sue for the death of your loved one.
The list of possible defendants in a wrongful death suit following a car accident includes, but is not limited to the following:
- At-fault driver — For driving recklessly, inattentively, or making an error in judgment and causing a crash that killed the victim
- Mechanics — If faulty repair works caused an accident, then mechanics become potential defendants in your suit
- Vehicle or car part manufacturers — You can seek damages from vehicle or car parts manufacturers if a defective part of their car caused the crash. A recent example involves Tesla’s Autopilot system. Tesla was sued because one of its vehicles running on its autopilot driving mode hit and killed a pedestrian.
- State agencies — If investigations prove that a failure by a state agency to maintain a road or adequately inform the public of road construction led to a car accident that killed the victim, you have grounds to sue the agency.
- The at-fault driver’s employer — You can sue the at-fault driver’s employer if the driver was on duty at the time of the accident. Employers are responsible for ensuring the company’s drivers are well trained, practice safe driving habits, and exercise the greatest care while on the road.
Negligence occurs when another fails to exercise due care, through action or inaction, compromising the victim’s safety, thus resulting in harm. While a defendant’s inaction or action could be intentional, intent in negligence cases is irrelevant. What matters is the following.
- The defendant owed a duty of care to the victim — The legal duty of care is established in situations where an individual must exercise reasonable care not to inflict harm on another.
- Said duty of care was breached through the defendant’s actions or inactions — You will have to prove that the defendant’s actions or inactions were negligent and failed to meet the standard of what a reasonable individual would determine as safe and injurious to another.
- The victim suffered fatal injuries because of the breach — Causation is pivotal in proving negligence. A jury will only determine a defendant negligent if convinced through the evidence presented that the accident and the resulting death were foreseeable. Additionally, the defendant’s actions must likely, probably, or cause the deceased's death.
Foreseeability is a test applied to evaluate the probability of a catastrophe, in this case, the victim's demise from the defendant's actions. In simpler terms, it should have been likely, or probable that the consequences would have occurred due to the defendant’s conduct.
The scope of liability is based on the foreseeability of the type and manner of harm.
Type of Harm
An individual who causes injury that results in the death of another or causes the death of another is liable if the type of harm is reasonably foreseeable as a consequence of the negligent act.
For example, James was driving drunk late one night on a dark road. He veered off the road, hitting a trunk while almost running over a pedestrian. Shocked by the near-collision, the pedestrian suffered a heart attack and died.
The victim’s cause of death was a heart attack. Arguably, the pedestrian’s family does not have a claim because his heart attack was not reasonably foreseeable despite James driving while intoxicated.
Manner of Harm
An individual who causes death to another is not liable for the superseding cause if the cause was not foreseeable.
For example, Jim was driving home intoxicated one night. A dear suddenly jumps onto the road. Jim slammed on the break but could not stop the car on time and hit the animal. The deer bounced off the car and landed on a pedestrian on the side of the road, killing him instantly.
The actual cause of death was multiple broken bones and internal bleeding caused by the dear falling onto the victim. Arguably, Jim is not liable. Although he hit the deer and was intoxicated, it is not reasonably foreseeable that the deer would have landed and killed a pedestrian. Therefore, Jim is not liable for the victim’s death.
Examples of superseding events deemed unenforceable include acts of God and crimes committed by third parties like carjacking.
However, a defendant can be found liable if the superseding event is foreseeable. Examples of these events include harm inflicted by rescuers, ailment, or a subsequent injury sustained after the initial crash that caused the victim's death.
Plaintiffs file wrongful death lawsuits to seek compensation for the loss of their loved one. Compensation is paid to the losses the death occasioned. These losses include monetary (pecuniary or financial) and non-monetary losses.
Pecuniary losses include all financial costs incurred in treating the deceased’s injuries caused by the crash before his/her demise, funeral expenses, and the lost income benefits the family would have enjoyed if the victim were alive.
When determining financial losses, various factors affect the final value. The victim’s age, health condition before his/her demise, character, life expectancy, intelligence, employment status, income, earning capacity, and income trajectory are all critical in determining the loss. While the monetary losses seem straightforward, the final value requires a proper assessment of the financial implication of the death, both presently and in the future.
The courts also consider non-monetary losses occasioned by the victim’s death. Non-monetary losses are not immediately quantifiable monetarily but are losses to the family nonetheless. You can detail your suffering, mental anguish, pain, loss of consortium, and companionship following your loved one’s death. With your attorney’s help, you can place a dollar figure to quantify the value of the loss.
Recoverable Damages in a Wrongful Death Suit
Wrongful death is a serious civil claim under NRS 41.085, evidenced by significantly large settlements and jury awards in recent history. Nevada juries award plaintiffs in wrongful death suits compensation in two forms, compensatory and punitive damages.
Compensatory damages cater for the financial and the non-financial losses suffered by the deceased’s surviving family. The value of the compensation also varies from case to case. Jurys decide on what is fair and reasonable based on the circumstances of the case.
There are two categories of compensatory damages, general and special damages.
Special or Economic Damages
Special damages are also referred to as economic damages. The damages financially compensate the plaintiffs of all expenses incurred by the victim while seeking medical treatment following the accident. Further, economic damages also cater to costs incurred in burial preparations.
Examples of the expected expenses considered under special damages include:
- Medical expenses
- Lost wages and earning capacity
- The cost incurred in repairing property damaged as when the accident occurred
- Cost of hiring help to assist the victim if the deceased survived after the accident — It is also important to note that you can only recover this expense if your loved one succumbed to the injuries. His/her death should be related to the injuries suffered in the car accident.
- Lost income
- Lost earning capacity
- The victim’s children’s educational expenses, not paid for owing to the lost income during the victim’s recovery. Further, the compensation includes future costs of the children’s education after the victim’s demise.
General or Non-economic Damages
As mentioned earlier, the victim’s surviving family members can be compensated for the emotional and mental anguish the victim’s death caused. Examples of damages plaintiffs recover include:
- Physical pain and suffering
- Mental anguish
- Loss of consortium
- Lowered quality of life
- Grief and sorrow
- Disfigurement of the victim
The difficulty in determining general damages lies in assigning a dollar value for a subjective injury. Additionally, the level of suffering is subjective and unique to each plaintiff. Therefore the awards vary.
The Las Vegas Car Accident Attorney Law Firm attorneys have experience handling wrongful death claims. We understand how to calculate your losses and present a compelling case to the jury. Once we assess your case, we will advise you on what to include in the claim and the potential ask in the lawsuit.
Punitive or Exemplary Damages
Courts also award punitive or exemplary damages. These damages penalize the defendant whose wrongdoing is especially egregious. The value of the award can be significantly higher than the sum awarded as compensatory damages. The high value seeks to deter other individuals from engaging in behavior similar to the defendant(s).
Punitive damages in Nevada are awarded per NRS 42.005. Jurys only award punitive damages if satisfied that a defendant’s actions amounted to:
- Malice — Any conduct aimed at injuring you or despicable behavior in conscious disregard of the safety or rights of others
- Oppression — Despicable conduct that subjects another to unjust and cruel hardship with conscious disregard of the victim’s rights
- Fraud — A deliberate deception, misrepresentation, or concealment of material facts by a defendant aimed at depriving you of your rights
NRS 42.005 limits punitive damage awards to:
- $300,000 if the value of compensatory damages awarded is less than $100,000 or
- Three times the value of compensatory damages awarded if the value is $100,000 or exceeds $100,000
Additionally, NRS 42.005 provides no cap to the sum of punitive damages you can recover if the following circumstances feature in your case.
- An insurance provider acts in bad faith concerning obligations set out in your insurance policy.
- Your case involves a distributor, manufacturer, or retailer of a defective car part.
- The at-fault driver willfully consumed drugs or alcohol before or while operating the car.
You can only access punitive damages if you win your case and subsequently request punitive damages. The court will have to decide on the merits of your request, and if warranted, the jury will award the damages in a subsequent proceeding. In this proceeding, the jury will determine the value of the award.
You only have two years to file a wrongful death claim in Nevada. Time starts running from the date of the victim’s demise. Filing beyond the two years is beneficial to the defendants because they will file a motion to dismiss the case on the grounds of the lapse of the statute of limitations and win.
It is thus in your best interest to engage an attorney immediately after the passing of your loved one. It is critical to start gathering evidence for the case soonest.
Will Insurance Cover Wrongful Death?
In most cases, yes. However, the insurance payout is less than the damages you can recover in a wrongful death suit. Damages also increase in value if more than one claimant is the deceased’s heir.
Settling or Proceeding to Trial
Out-of-court settlements and trials both provide grieving families an opportunity to receive compensation.
Settlement offers are arrived at after negotiations. In most cases, your attorney and the defense attorney could arrive at an agreeable value without spending time and resources litigating the matter in court.
Trials offer most plaintiffs closure if the courts find the defendant liable. Further, they offer significantly higher compensations than settlement offers. However, trial outcomes are not guaranteed. While winning the case is the goal, there is a risk of the defendant not being found liable, and with that, the loss of any potential compensation. This will become a significant blow considering the time and resources committed to prosecuting the matter.
Engage your attorney for advice on the best option.
Criminal Prosecution for the Defendant
Wrongful death suits are civil matters and are separate from criminal proceedings. Prosecutors decide whether to institute criminal proceedings to have the defendants face criminal penalties. This decision is not hinged on the outcome of your suit.
However, you can decide to institute a wrongful death claim if you are unsatisfied with the criminal proceeding’s outcome. Bear in mind that civil proceedings award compensation while criminal proceedings seek criminal penalties on the defendants. A good example is the O.J. Simpson case, where O.J. was acquitted in the criminal proceeding of the murder of his wife, Nicole Brown Simpson but found liable in the civil suit filed by Nicole Brown Simpson’s family.
Contact a Car Accident Attorney Near Me
At Las Vegas Car Accident Attorney Law Firm, we understand the difficulty of losing a loved one. We are devoted to safeguarding your interests by working to secure you just compensation. Give us a call at 702-576-0010 for a free case evaluation.