Orange County Wrongful Death Attorney
When a loved one dies it is always a traumatic event for the entire family. When there is negligence involved in that death, whether on the part of another person, a company or a manufacturer, the family of that person can be left to struggle not only emotionally, but financially as well. In fact, the loss of present and future financial support, while certainly not the primary cause of devastation, can leave a family who depended on that financial support floundering, wondering how they will continue to pay their day-to-day expenses.
If you have a lost a loved one due to someone else’s negligence, call Orange County wrongful death attorney John Rapillo today for a free consultation. Mr. Rapillo has over 35 years experience successfully handling wrongful death claims. While there is no amount of money which can compensate for the loss of a loved one, economic damages received via a civil action—a wrongful death claim—can help ease the financial destruction suffered by those left behind. Find out how John Rapillo can assist you.
Wrongful Deaths in Orange County
According to Smart Growth America, between 2003 and 2012, there were 1,741 traffic fatalities in Orange County, with 437 of those being pedestrian fatalities. The state total number of auto accident fatalities for that period of time was 35,829, and the national total was 383,489, meaning California accounted for about 9.5 percent of the nationwide auto accident fatalities.
Wrongful deaths can occur as the result of impaired drivers, reckless drivers, or drivers who are distracted, perhaps because they are texting, eating, changing the radio station, talking on a cell phone, or any other type of task which takes the attention of the driver away from the road.
Who is Allowed to File a Wrongful Death Claim in the State of California
Under the California Code of Civil Procedure, Sections 377.60-377.62, a wrongful death claim may be filed by any of the following persons, or by the personal representative of the decedent on behalf of any of the following persons:
- The surviving spouse of the decedent;
- The domestic partner of the decedent;
- The children of the decedent;
- The putative spouse (the surviving spouse of a void or voidable marriage, who is found by the court to have believed the marriage was valid) of the decedent;
- A minor who resided in the decedent’s household for 180 days prior to the death of the decedent, and was dependent on the decedent for at least half of their support;
- The domestic partner of the decedent, if that partnership is registered;
- The grandchildren of the decedent, if their parent (the child of the decedent) is no longer alive, or
- The deceased’s parents, if they were dependent on the deceased for support.
Damages Available to Those Filing a Wrongful Death Claim in Orange County
A wrongful death claim provides compensation for losses incurred due to the death of a loved one, while a survivorship claim provides compensation to the estate of the decedent for losses or expenses incurred by the decedent prior to his or her death.
This would apply in situations where a person was gravely injured due to the wrongful or negligent conduct of another, then later died, due to those injuries. The expenses related to the injuries, such as hospital or doctor bills, ambulance fees, or loss of earnings during hospitalization, would be reimbursed under a survivorship claim.
California does not allow damages for the pain and suffering of the deceased prior to death in a survivorship lawsuit, unless abuse or neglect in a nursing home or other dependent care facility was involved.
Funeral and burial expenses would generally fall under a wrongful death claim, rather than a survivorship claim. In some instances, a survivorship claim and a wrongful death claim may be joined in the same lawsuit. Those who are allowed, under California law, to file a wrongful death claim, may ask for the following damages, depending on the circumstances surrounding the wrongful death:
- The monetary value attributed to household services performed by the decedent;
- The loss of anticipated financial support from the decedent;
- The loss of guidance from the decedent;
- The loss of support from the decedent;
- The loss of affection and attention from the decedent;
- The loss of companionship from the decedent, and
- The loss of protection from the decedent.
Of course, the amount of damages which is awarded in a wrongful death claim is dependent on several factors, including:
- How much it would cost to replace the services provided by the decedent to his or her survivors;
- The life expectancy of the decedent;
- The number of years the decedent could have reasonably been expected to continue to work;
- How much future income of the decedent would have been available to the survivors;
- How long the surviving children will be considered minors, and
- The relationship of the decedent to the survivor(s) bringing the lawsuit.
As an example, minor children who lost their mother would likely be awarded a higher level of damages than a spouse who earned more money and provided more financial support to the family than the decedent.
California Statute of Limitations for a Wrongful Death Claim
The amount of time in which a survivor has to file a wrongful death claim is known as the statute of limitations, and varies from state to state. In the state of California, three different statutes govern wrongful death claims. These are:
- Under the California Code of Civil Procedure, Section 335.1, in most wrongful death situations the survivor(s) must file a claim within two years;
- If the death was caused by medical malpractice, under California Code of Civil Procedure, Section 340.5, the survivor must file a claim within three years of the date the injury occurred, or within one year after the plaintiff discovers or should have discovered the injury—whichever occurs first.
- If the wrongful death was a result of government liability, the wrongful death claim must be filed within six months of the injury.
Compensatory Damages vs. Punitive Damages
The goal of a wrongful death claim is to compensate survivors for their losses; compensatory damages provide for both emotional losses and financial losses. These damages are intended to repay the decedent’s loved ones for any costs related to the death, including present and future wages, medical expenses prior to death, and burial expenses. Depending on the circumstances, pain and suffering damages or damages for loss of companionship may also be awarded as compensatory damages.
Punitive damages are awarded when the jury believes the act committed by the defendant was reckless, intentional, or grossly negligent. Punitive damages are meant to punish the defendant, and to discourage similar acts in the future, either by the defendant or others. Punitive damages are awarded in addition to compensatory damages, (if they are awarded at all).
What Must Be Shown in a California Wrongful Death Claim?
The elements which must exist in order to have a valid wrongful death claim in the state of California include:
- A person lost his or her life;
- That life was lost as a result of the negligence of another person;
- As a result of the death, there was a loss of love and emotional support, a loss of financial support, and a loss of services, and
- This loss of love, emotional support, financial support, and services spans the past, present and future.
In order to show the death was the result of a negligent or wrongful act rather than a natural cause, or a mistake made by the decedent, consider these examples:
- A person dies in the hospital after a long battle with cancer vs. A person dies in the hospital after being given the wrong prescription drug.
- A person dies after running his car off the road and hitting a tree vs. A person dies after being struck in an intersection by a driver who was driving recklessly.
- A person dies after trying to “beat” a train across the tracks, vs. A person dies in a train accident after the engineer takes a corner much too fast and the train derails.
It must also be shown there were clear losses related to the death. If, for example, the family in question had been estranged from the decedent for a number of years, it would be difficult for them to show they depended on the financial and physical support of the deceased.
How Your California Wrongful Death Claim Will Proceed
Once you have obtained legal representation, your claim will be investigated, and evidence gathered. It may be necessary to have an accident reconstruction done by an expert if there is missing evidence due to the length of time since the accident. Legal documents will be filed which include a demand for damages against the defendant.
If the claim is not settled, your attorney will draft a complaint. Discovery will take place—where both sides ask questions and request documents from the other—witnesses will be deposed, and the case may go to mediation in order to attempt to settle it outside the courtroom. If no agreement is reached during mediation, a trial date will be set. If either side is unhappy with the outcome of the trial, an appeal may be filed.
What are the Primary Causes of Wrongful Death?
According to the CDC, unintentional injuries comprised about 3-6 percent of the total number of fatalities in 2013. Although classified as “unintentional,” by the CDC, the fatalities are often the result of the negligence of another. There is another category simply called “other” on the CDC charts, which comprises nearly a fourth of all deaths, and may also contain wrongful deaths. Deaths in these categories can include:
- Automobile accident deaths;
- Motorcycle accident deaths;
- Pedestrian and bicycle accident deaths;
- Slip and fall accidents which result in death;
- Boating accident deaths;
- Drowning deaths;
- Death from an assault;
- Death due to medical errors;
- Workplace injuries leading to death;
- Nursing home abuse leading to death;
- Death from a truck accident;
- Death from amusement park rides;
- Train accident deaths;
- Birth injuries due to negligence of medical personnel which lead to death, and
- Fatal dog bites or other animal attacks.
For those in the United States who are between the ages of 1 and 44, “unintentional death” is the top cause of death, with auto accidents ranking near the top for most of these ages, particularly among teens and young adults. Overall, however, medical errors are the third leading cause of death, following only cancer and heart disease.
Under the category of medical errors, the causes can include incorrect dosages of prescription drugs, the wrong prescription drug given to a patient, surgical errors and hospital infections. Deaths due to exposure to asbestos (mesothelioma) causes as many as 500 deaths per year in the United States. It is important to note that not all deaths from auto accidents are wrongful deaths—only those in which the direct cause of the accident was the negligence of another.
Could the Person Who Caused the Death of Your Loved One Also Be Criminally Prosecuted?
The answer to this question is “yes.” A civil and criminal case may be filed at the same time. As an example, if another person assaulted your loved one, resulting in his or her death, that person may be charged criminally, and a wrongful death action could also be brought against him or her.
The O.J. Simpson case is one example of how a criminal and civil case could be brought against the same person. In the Simpson case, he was found not guilty in the criminal trial, and guilty in the civil trial.
Call Orange County Personal Injury Attorney John Rapillo Today
It is very important that you hire an Orange County wrongful death attorney who has both the experience and the skills necessary to assist you with your claim, in a compassionate yet professional manner. You need an attorney who will be the advocate in your corner, allowing you the time you need to grieve over the loss of your loved one.
Law Offices of John Rapillo