Wrongful Death


Laws and Information

A wrongful death claim is a suit that arises from the death of an individual that was caused by the negligence or conduct of another person.

A wrongful death lawsuit is different from other types of personal injury claims because the actual victim (the “decedent”) is not bringing suit, rather it is the family members or the decedent’s estate.

As such, a wrongful death claim is brought to recover damages for the injuries that the surviving family and/or estate have suffered due to the death of the victim. The damages recovered do not include damages that are personal to the decedent, since the decedent is not allowed to recover for pain and suffering, mental distress, or any other form of compensatory damages unique to him or her.

Florida Wrongful Death Laws

The purpose of a lawsuit is to provide relief to family members who have been injured emotionally and financially as a result of the family member’s death. The plaintiff in a wrongful death action is the personal representative of the decedent. Fla. Stat. § 768.20. The personal representative does not need to have a connection with the events that caused the decedent’s death.

The decedent’s negligence, however, will be imputed to the plaintiff, reducing or barring the plaintiff’s recovery on behalf of the estate to the extent that the decedent’s negligence was a proximate cause of his or her own death. Perdue v. Copeland, 220 So. 2d 617 (Fla. 1969). If a survivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence. Frazier v. Metropolitan Dade County, 701 So. 2d 418, 420 (Fla. 3d DCA 1997)

In Florida wrongful death cases, special consideration is given to the statute of limitations. Generally, you have two years from the time of the decedent’s death to file a lawsuit. Fla. Stat. § 95.11. Wrongful death actions based on medical malpractice, however, are governed by the medical malpractice statute of limitations which may extend your right to sue, but that depends largely on the facts of each case. Fla. Stat. § 95.11

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Common Defenses in a Wrongful Death Suit

In addition to Florida statute of limitations restrictions, there are defenses that may be used to combat a wrongful death suit. The available defenses are limited to those that could have been made against the decedent had he lived and brought his/her own claim for personal injuries. The main defenses are causation, comparative negligence and imputed comparative negligence. The availability of either of these defenses may bar a plaintiff from recovery or reduce the amount of damages awarded.

In order to hold a defendant responsible for wrongful death, you must prove that the defendant’s conduct was the cause of the decedent’s death. To satisfy this requirement, you do not have to show that the defendant was the only responsible party. You must only show a connection between the defendant’s conduct and the injury, such that the injury and resultant death would not have occurred without the defendant’s actions.

Example: If a person was killed on Corporation X’s amusement ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Corporation X may still be found liable for damages.

Often, the period when the fault occurred and when death results can take seconds, as in the case of a car accident where a victim dies at the scene, or months, as where a doctor prescribes the wrong medication that over time results in the patient’s death.

The period between the fault and the injury, however, is not a controlling factor necessary to show proximate cause. For example, if a decedent died due to injuries he received in an accident three months ago, the negligent wrongdoer is still liable.

The continuous causal connection between the fault and the injury is the important element necessary to prove causation in a wrongful death suit. Think of the concept of continuous causal connection as a line that connects from the fault to the injury. The line represents the sequence of events that occur from the point of fault to the point of injury. In the car accident example mentioned earlier, the defendant’s car crashed into the victim’s car and the victim died. In that instance, there was an obvious connection between the fault (the auto crash) and the injury (death).

If there is no causal connection, the defendant will not be found responsible. If prior to death the decedent did not exercise reasonable care in obtaining treatment for the injury, it might be found that the proximate cause of the decedent’s death was not due to the defendant’s conduct or activity, but rather due to the decedent’s own actions.

Comparative negligence is conduct by the decedent that contributed to his death.

Example: A person riding a bicycle at night without brakes or light reflectors who is later struck and killed by a truck may be comparatively negligent.

If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. The defense of comparative negligence, however, is a fact for the jury to consider and it generally cannot be determined until after a case begins.

In some instances, one of the beneficiaries may be comparatively negligent or responsible for the decedent’s death. In some states, if one beneficiary is partially or wholly at fault in the decedent’s death, the other beneficiaries cannot sue for wrongful death damages.

In Florida, however, only a beneficiary who is partially at fault cannot recover damages. If a survivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence. Frazier v. Metropolitan Dade County, 701 So. 2d 418, 420 (Fla. 3d DCA 1997)


Damages for a Wrongful Death in Florida

Damages in wrongful death cases are intended to compensate for losses resulting from the death of a family member. These damages can be divided into both economic and noneconomic damages. They are also divided into both past and future damages.

Past damages take into account losses that have occurred up until a point in time; whether that is a date of settlement or the date a jury deliberates to reach a verdict during trial. Future damages take into account the future losses, and often consider the life expectancy of both the deceased and his or her survivors.

Florida wrongful death law determines who the “survivors” are that may be entitled to recover damages that result from a death. In medical malpractice claims, the definition of a “survivor” is limited and not the same as it would be in say an automobile crash case.

For instance, in Florida, if there is no surviving spouse, or children under the age of 25, or dependent children, there are no “survivors” who can make a claim for damages. Although under these circumstances there may still be a claim for medical expenses or losses to the estate, most persons are shocked to hear that Florida law does not recognize the claims of grown children or other family members when medical negligence leads to a death..

Some losses are measurable – a widow in a wrongful death suit, for example, could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general in nature. Types of recoverable damages include:

  • Economic loses; medical bills and funeral costs.
  • Loss of benefits – what the person could have received in pension/retirement benefits had they lived.
  • Loss of net accumulations of the estate.
  • Loss of Companionship
  • Pain & Suffering of the survivors
  • Punitive Damages – what amount the defendant should be punished for his or her action resulting in the victim’s death.

Calculating the damages is a process involving multiple factors. Some factors in calculating wrongful death damages in Florida include:

  • how dependent the plaintiff was on the decedent
  • the nature of the relationship with the decedent
  • the anticipated lifespan of the decedent
  • the anticipated lifespan of the survivor
  • the anticipated earnings and other benefits of the decedent

Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to put a price tag on the emotional loss you suffered from the decedent death.

An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she lived. Therefore, it is common to take the victim’s earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.

Present Value

When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.

How is present value calculated?

In order to calculate present value, the future loss is first calculated using the information on the amount of future economic losses. These losses may be either related to medical and related costs, or to loss of income and earning capacity. The duration of the future losses is based upon a person’s life expectancy and, in the case of earning capacity, their working life expectancy.

Once these losses have been calculated, the next step is to calculate what the present value of those future losses is in today’s dollars. Simply put, the present value of a future loss is the amount of money that it would take to cover the future losses when they are experienced in the future. Economists and forensic accountants will many times serve as expert witnesses on these issues. They will make assumptions concerning the future rate of inflation that will impact costs going forward, as well as the growth rate of any money that is set aside for growth.

If the inflation rate is greater than the growth of money that is invested, then more money will need to be set aside to meet future needs. If money is assumed to grow at a faster rate than inflation, then the present value of money would be less than the total of future costs. Some experts in this area will do a calculated analysis, only to find that the present value of the future loss is essentially the same as the total of all future costs.

In all matters involving wrongful death it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

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If a loved one has been a victim of wrongful death, call Brotman Nusbaum & Ibrahim now at (888) 661-6266 or fill out the form to the right.See how we can help you recover the damages you deserve.