What Does A Victim’s Family Need To Know About Wrongful Death Claims?
The death of a loved one is always tragic. When a family experiences a death caused by the carelessness of another, the law offers redress for this tremendous loss. While nothing can bring back the deceased, these suits can at least ensure that those left behind are provided for. These types of claims are known as wrongful death actions and are provided for directly by statute in Kansas. The details of an action brought under Section 60-1901—Kansas’ wrongful death statute—are discussed below.
Who Can Bring A Wrongful Death Action?
Most lawsuits can be brought by the injured party and continued after that party has died. However, wrongful death actions are different. Section 60-1902 only allows an “Heir at law” of the deceased to bring a wrongful death suit—not the estate of the deceased. An heir at law is a blood relative or spouse of the deceased person. “The estate” of the deceased really refers to the executor of that estate. An executor is the individual charged with wrapping up all the affairs, debts, and other business of the deceased individual. This distinction can lead to somewhat strange results, as was the case in Lewis v. BHS College Meadows. In Lewis, a man died after receiving allegedly negligent medical treatment, prompting his daughter to bring both a wrongful death action and claim for medical malpractice. The court ruled that the daughter could bring the wrongful death claim—as she was the deceased’s heir at law—but she could not maintain the medical malpractice claim, because only the executor of the deceased estate could maintain an action that the deceased could have brought in life.
Plaintiffs to a wrongful death action have another difficulty to consider: the requirement to divide the award among all heirs. Section 60-1905 requires that the amount of awarded damages be apportioned among the heirs at law, according to “the loss sustained by each of the heirs.” This is true even if an heir takes no part in litigating the matter—meaning that the heir doesn’t help find the attorney, help to gather evidence, to testify, or to otherwise pursue the recovery. This can be addressed by having the heir sign a waiver of any portion of the recovery or by simply having all heirs join in the action.
What Causes Of Death Are Covered By Wrongful Death Claims?
Section 60-1901 allows an heir to recover when the deceased’s death was caused by “wrongful acts or omissions” of another. This means that any careless actions by another that brings about the death are enough to form the basis of a wrongful death claim in Kansas. Not only carelessness of another, but also intentional harms can be the basis for a wrongful death claim. For example, both a car accident that results in death and an intentional shooting will constitute wrongful acts under Section 60-1901.
One particular type of conduct that warrants special attention is action by the government. Generally, both the federal and state government are immune for being sued by individuals for monetary damages—a concept known as sovereign immunity. However, both Kansas, via the Kansas Tort Claims Act (KSA § 75-6101), and the federal government, via the Federal Tort Claims Act (28 U.S.C. § 2671), have waived a portion of their sovereign immunity under certain circumstances. Common types of wrongful death suits against the government include car accidents caused by state vehicles and medical malpractice by VA doctors. However, sovereign immunity has not been completely waived by either act, meaning not all cases of wrongful death allow for the imposition of liability. These include discretionary functions of government officials and actions of police officers that fall under qualified immunity.
What Types Of Damages Are Available In A Wrongful Death Claim?
Just as the cause of action for wrongful death is created by statute, so are the available damages for plaintiffs. Section 60-1904 lays out six considerations for damages. First, mental anguish, including bereavement, is a proper consideration for damages. Second, loss of companionship—the actual pain and suffering of missing the deceased—is an appropriate and important thing to consider. The next few categories are closely related, seeking to compensate for lost care, attention, advice, and counsel provided by the deceased in his or her role as a spouse, a parent, and a relative. Finally, reasonable funeral expenses are appropriate.
The Kansas Legislature has imposed a cap on damages for wrongful death lawsuits. This means that no matter what the jury wants to award a plaintiff, Section 60-1903 limits the amount that can actually be collected. The damage cap applies to all damages except for pecuniary loss. Pecuniary losses are those that can be readily calculated, such as medical bills and lost wages. The plaintiff can recover the full amount of these damages that is shown to be appropriate. All other damages, including emotion harm, loss of companionship with the deceased, and punitive damages—those designed to punish the defendant for egregious conduct—cannot exceed $250,000. While this is certainly not a small sum, when considering the nature of wrongful death claims, it is a bit odd to find that such an amount is deemed sufficient to redress all possible losses.
A wrongful death claim is a tremendously difficult experience. The nature of litigation means that the death of a loved one will need to be revisited again and again as the case progresses. And the details of their last moments will need to be combed over and relieved. Contacting experienced legal counsel ensures not only fair and sufficient recovery, but also that the process of litigating the claim is no more difficult than it naturally must be.
For more information on Wrongful Death Claims In Kansas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (913) 451-9500 today.
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