Typically, when a person is injured by another’s negligence, that person may pursue a personal injury action to recover monetary damages for medical bills, pain and suffering, lost wages and other applicable damages, provided that the injured person is not fully or partially responsible for causing their own injuries. (Read our Contributory Negligence Blog for more information.) It is also true that the estate of a person killed by another’s negligence can pursue a Wrongful Death Action to recover monetary damages for medical bills, pain and suffering, lost wages, attorney’s fees, funeral and burial expenses and loss of the decedent’s care, services, companionship, guidance and protection. Additionally, other damages may apply such as punitive damages if the plaintiff proves that the defendant’s conduct was willful, or wanton or if the plaintiff can prove that the defendant acted with malice. The following is a general outline of Wrongful Death actions in North Carolina. This blog is not to be construed as legal advice.
The personal representative of a decedent’s estate or an individual designated by the personal representative may bring an action on behalf of the decedent’s estate for wrongful death. (N.C.G.S. § 28A-18-2) To determine whom the decedent’s personal representative is, first look to whether the decedent executed a valid and enforceable will before their death. If the decedent executed a will, the personal representative is the executor or executrix designated in the decedent’s will. Next, if the decedent died without a will, an administrator of the estate shall be appointed by a Superior Court Clerk pursuant to North Carolina Intestate Succession laws and pursuant to N.C.G.S. § 28A-4-1(b).
The general definition of negligence used in North Carolina for Personal Injury and Wrongful Death cases is a failure to act with “reasonable care.” When a party fails to act with reasonable care, and that party’s actions cause the injury or death of another, the “at-fault” party can be liable for damages to the injured or deceased party unless a legal defense such as Contributory Negligence applies. Basically, the plaintiff must prove: (1) that the defendant breached a duty of care owed to the decedent. (Duties of care depend on the activity that the defendant was engaged in, but the standard duty of care that applies to all conduct unless otherwise specified is for people to act as reasonably prudent people would under like or similar circumstances to avoid injuring others; (2) that the defendant breached their duty of care owed to the decedent; (3) that the defendant was the “cause in fact” of the decedent’s death (defendant was directly responsible for decedent’s death); and (4) that the defendant was the “proximate cause” of the decedent’s death (decedent’s death was the foreseeable result of the defendant’s breach of their duty of care owed to the decedent and that the defendant should be held liable for the decedent’s death).
Some of the most common causes of wrongful death include: medical malpractice, vehicular manslaughter, deaths resulting from drunk drivers, deaths from reckless or aggressive driving, bicycle and pedestrian accidents, prescription mistakes, negligent caregivers, child abuse and neglect, slip and fall incidents, construction site accidents, travel industry accidents, homicide, and domestic violence.
The law requires that one must file a Wrongful Death Claim within 2 years from the date of their loved one’s death. Any attempt to file after 2 years will be barred.
We strongly encourage you to seek the advice and counsel of a licensed North Carolina Personal Injury Attorney if a family member or friend has died as a result of another’s negligence. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC. This blog is not to be construed as legal advice.