What happens when you file a wrongful death suit in North Carolina?

No one wants to be in the situation of having to file a wrongful death suit after the loss of a loved one. Unfortunately, sometimes circumstances arise where a person has died, and their loved ones believe another party is to blame. The deceased may have been the primary earner in the family, and their death might have left a surviving spouse and/or children with a mountain of bills and little to no income. Sometimes, people just want to get to the bottom of the events of a loved one’s death. All of these are reasons you may find yourself considering a wrongful death suit after a loved one has passed.

meeting with a wrongful death attorney

If you have questions about filing a wrongful death suit, it’s best to consult a North Carolina wrongful death attorney. They can talk over the details of your case with you and address any specific concerns you have. Until then, here are some general answers to questions people may have about wrongful death suits in North Carolina:

Do I Have To Decide About Filing A Wrongful Death Suit Right Away?

It can be difficult to make any decisions when you’re still grieving. Under North Carolina law, you have two years from the date of the person’s death to file a wrongful death suit. So unless you are getting close to that time period ending, you probably have some time to think about what you want to do.

Can Any Surviving Relative File A Wrongful Death Suit In North Carolina?

In some states, surviving family members may file a wrongful death suit. But under North Carolina statutes, such a suit can only be filed by the personal representative of the decedent’s estate. The “personal representative” is similar to an estate executor, and is typically chosen when a person makes out a will. If the representative chosen can’t or won’t do the job, or the deceased passed without a will, the court will appoint a personal representative. Often the surviving spouse, adult children, or other relatives are chosen.

While only the personal representative can file a wrongful death suit, any damages recovered in the lawsuit will be divided among heirs according to state law. Essentially, the estate has to file the lawsuit, but the damages awarded do not become part of the estate. In most cases, compensation awarded in a wrongful death suit will go to the victim’s spouse and/or children. However, the estate may be reimbursed for any costs associated with the lawsuit, such as court costs or legal fees, from the amount awarded. Some of the damages may also go to pay for any outstanding medical costs associated with the decedent’s care.

If you are not the estate’s personal representative but believe a lawsuit should be filed, you should speak to the representative about the potential suit. It may be helpful for both of you to meet with a wrongful death attorney to talk over the situation.

Does The Defendant Have To Be Convicted Of A Crime For A Wrongful Death Suit To Be Filed?

No. Although this does sometimes happen – such as in cases where the defendant is convicted of vehicular manslaughter, for example – it is not necessary to prove that anyone committed a crime in order to pursue a civil suit. This is because the burden of proof is much lower in a civil trial than in a criminal trial where a defendant must be found guilty “beyond a reasonable doubt.” In a civil case, the jury or judge only has to find that there is a “preponderance of evidence” in the plaintiff’s favor. To put it another way, they just have to be convinced that the defendant was negligent more likely than not.

Even a person who is acquitted of a crime in criminal court can be found liable in civil court for the same event. One well-known example of this situation is the O. J. Simpson case. In 1995, Simpson was acquitted on two murder charges from 1994, but the victims’ families later sued him in civil court and won a judgment of $33.5 million. Simpson refused to pay this amount, but the father of one of the victims was able to seize some of Simpson’s assets, including proceeds from a book about how the crime might have been committed.

However, most wrongful death cases don’t follow a murder trial. In many cases, there is not enough evidence for the defendant to even be charged with a crime in the first place. It is still possible to sue a person or entity for negligent behavior that resulted in a person’s death. For example, negligence is usually the grounds for a wrongful death suit following deaths in car accidents, workplace or construction accidents, plane or train crashes, and many other situations. Medical malpractice may also be the reason for a wrongful death suit.

How Is Negligence Proven In A Wrongful Death Case?

In order to prove negligence, your attorney will work to establish four things:

  • The defendant had a duty of care to the deceased or to other people in general. For example, a driver has a duty of care to drive carefully on the road, in order to prevent accidents that could hurt others. A doctor has a duty of care to provide good treatment for a patient and avoid doing anything that could make the patient worse. A person who manages or makes decisions for a business has a duty of care to ensure the workplace is safe for both customers and employees.
  • The defendant breached that duty of care – they did not drive carefully, they made their patient’s situation worse, and they failed to provide a safe environment for customers and employees alike.
  • This breach of duty led to one or more people being harmed.
  • This harm created damages for the plaintiff (in this case, the decedent and the heirs of their estate).

What Kind Of Damages Can You Seek In A Wrongful Death Case?

It’s important to understand that unlike in a criminal case, the only damages a civil court can award are financial. There are multiple items that you and your attorney may discuss seeking financial compensation for:

  • Any medical costs related to the injury or illness that caused the decedent’s death. In many cases, these can be substantial.
  • Reasonable expenses for the funeral and burial.
  • Pain and suffering experienced by the deceased leading up to their death.
  • Loss of income. This can be an important factor, especially if the deceased was the main or sole earner of their family. Your attorney may calculate the earning potential the decedent would have had if they’d lived (how much money they likely would have earned prior to retirement).
  • Loss of services, protection, care, and assistance.
  • Loss of social benefits, companionship, comfort, advice or guidance, and other emotional benefits of a relationship with a loved one.
  • In some cases, punitive damages are awarded. These are not intended to compensate the heirs of an estate for their loss so much as to further punish the plaintiff “for malice or willful or wanton conduct.” As a result, punitive damages are not common, but occasionally they are awarded if the judge or jury finds the plaintiff’s behavior leading to the death was particularly horrifying.

What If The Decedent Was Also Negligent In Some Way?

North Carolina uses contributory negligence statutes, which state that if an accident or other personal injury victim was even partially responsible for the injury, they cannot collect any damages from the other party. This is true even if the victim was only 1 percent responsible and the other party was 99 percent responsible.

Unfortunately, this holds true for wrongful death cases as well. If the jury finds that the deceased was even a small percentage responsible for the accident or incident that caused their death, no damages will be awarded. As a result, the plaintiff’s lawyer is likely to argue the deceased person was somehow at fault. Although this is a common strategy, an experienced wrongful death attorney may be able to overcome it by refuting claims the decedent was at fault.

Will A Wrongful Death Suit Involve A Trial In Court?

Not always. Most cases settle out of court, especially if there is ample evidence that the defendant was negligent in the death. However, in some situations, the other party may not be willing to agree to a fair settlement. If that happens, your attorney will represent your interests throughout the trial.

What Good Would A Wrongful Death Suit Do At This Point?

We hear this question a lot, and ultimately, it’s something you’ll have to answer for yourself. Some people do feel that there is no point in filing a lawsuit, as it can’t bring back their loved one. If you don’t believe a lawsuit would help you or your family in any way, then you probably shouldn’t file one. Lawsuits can be time-consuming and stressful – some family members find the process to be an emotional roller coaster, even if the case never goes to court.

However, there are some situations where a lawsuit can be beneficial for the decedent’s family. The truth is that while financial compensation won’t bring your loved one back, you do still need money to live. If your spouse was the primary earner for the family, you may be struggling to pay your rent or mortgage, put food on the table, and pay for the many items your children need – all while also working through your grief. For some families, a successful lawsuit can allow them to meet their financial needs, pay for their children’s education, and move on with their lives with one less thing to worry about. If your loved one’s death has left you in financial difficulty, it’s worth at least considering whether a lawsuit could relieve one major stressor in your family’s life.

Additionally, some people choose to file a lawsuit because they want to shed light on an unsafe situation, or affect some sort of change, hopefully preventing future deaths. It is true that an expensive lawsuit can sometimes lead to safer practices or better adherence to safety rules already in place.

If you have lost a loved one due to another’s negligence in North or South Carolina, you have legal rights. It can be helpful to learn about your options, even if you aren’t sure what you want to do. Our wrongful death lawyers are available for a free consultation if you have any questions or concerns – there’s no obligation, and your consultation is completely confidential. Give us a call at 828-222-7649 or contact Auger & Auger Accident and Injury Lawyers online for a free, no-obligation consultation today.