When someone dies due to the fault of another person or entity, the family of the deceased can seek compensation through a wrongful death lawsuit. Wrongful death claims can encompass a variety of matters, including fatal car accidents, medical malpractice and dangerous or defective products.
A representative may file a wrongful death claim on behalf of the survivors who have suffered damages due to the death. All states allow immediate family members — including spouses, birth and adopted children, and parents of unmarried children — to recover damages under a wrongful death lawsuit. In some states, other survivors may also be able to seek recovery, such as:
- Life or domestic partners
- Financial dependents, even if they are not related by blood or marriage to the victim
- Putative spouses
- Distant family members such as siblings and grandparents
- Parents of a deceased fetus
The damages available in wrongful death lawsuits vary according to state law. Colorado’s philosophy is that the primary purpose of a wrongful death action is to provide recovery for those who were economically dependent upon the deceased person. Spouses have top priority, and children and parents retain limited rights; siblings cannot initiate a wrongful death lawsuit in Colorado.
Economic damages are the financial contributions that the victim would have made to the survivors if he had survived, and they include the following:
- Medical and end-of-life expenses connected to the death
- Loss of the deceased person’s earnings over the course of his expected lifetime
- Loss of the ability to participate in the victim’s benefits, such as pension plans and health insurance
- Loss of an inheritance
- The estimated value of goods and services the deceased would have provided to the survivors
Although more difficult to quantify, non-economic damages can have more value than economic damages, and may include:
- Pain, suffering and mental anguish caused by the victim’s wrongful death
- Loss of care, protection, guidance, advice, training and nurturing
- A spouse or partner’s loss of love, society, companionship and consortium
In Colorado, recovery for non-economic damages is limited to $250,000, unless the death was the result of first- or second-degree murder or manslaughter. Colorado law also allows the plaintiff to choose a solatium in the amount of $50,000 as an alternative to an award for non-economic damages, but in addition to economic damages. A solatium is awarded upon finding a defendant liable for a wrongful death, and covers damages such as loss of companionship, consortium, pain and suffering, and mental distress.
Punitive damages are intended to punish the wrongdoer for conduct considered especially bad or offensive; however, punitive damages are not available in wrongful death lawsuits in all states. Colorado historically did not allow for the recovery of punitive damages but since 2000 has started to permit them, if the defendant’s conduct was willful and wanton, and was proven beyond a reasonable doubt.
Wrongful death lawsuits often involve extremely complex areas of law. Damage calculations include not only income and benefits but also the monetary value of services and care provided by the deceased person, and cases frequently result in large damage awards. For these reasons, the parties often seek out the opinion of expert witness such as economists and actuaries to help determine what is realistic, proper, and above all, fair.
Image by Cary J Wintroub.