Wrongful Death Recovery in Louisiana
Posted in Wrongful death on April 9, 2021
Losing a loved one is traumatic no matter the circumstances, but it can be even more difficult when the death is caused by the intentional or negligent act of another party. In order for the victim’s loved one to recover damages, they must first demonstrate that another party was responsible for the death and then follow the correct process for securing recovery.
Read on to understand liability after a wrongful death and how to recover.
Establishing Liability after a Wrongful Death
A person is negligent when they fail to act with an appropriate level of care. Scenarios that can result in wrongful death because of another party’s negligence include:
- Car Accident: In 2019, motor vehicle crashes resulted in more than 700 deaths in Louisiana. If a fatal car accident is caused by the negligence of another party, they are responsible. If a driver violated a traffic law, this is strong evidence of negligence.
- Premise Liability: Property owners must keep their property in reasonably safe condition and advise visitors of non-obvious risks. The level of care required on the part of the property owner will depend on whether it is a business or if the visitor is only a social visitor. If a visitor dies because of the owner’s failure to exercise the appropriate level of care, they are responsible.
- Workplace Accidents: In 2019, there were 119 fatalities from workplace accidents in Louisiana. An employer must provide a safe work environment, as well as reasonable safety accommodations.
- Medical Malpractice: Medical providers must exercise the same level of care as other medical professionals providing care for similar issues under similar circumstances. If an error by a medical provider results in a fatality, the negligent medical provider is responsible.
- Product Liability: Product manufacturers must perform appropriate safety testing on all products. Any fatality caused by a defective product is the responsibility of the manufacturer.
A lawyer will help you assess the circumstances around your loved one’s death and determine if another party is responsible.
Securing Recovery after Wrongful Death
Recovery after wrongful death can be complicated. There are two types of recovery that arise after a wrongful death: (1) recovery for the damages the victim suffered, called a survival action; and (2) the damages suffered by loved ones as a result of the victim’s death, called a wrongful death action.
Louisiana law authorizes the following individuals to bring a suit to recover damages resulting from the individual’s death:
- Surviving father and mother if the deceased left no surviving spouse or children
- Surviving brothers and sisters if the deceased left no surviving spouse, children, or parent
- Surviving grandfathers and grandmothers if the deceased left no surviving spouse, children, parent, or siblings
The authorized individuals must bring suit within one year of the victim’s death. Once you have established the party authorized to bring suit, you will need to ensure the claim includes all the damages suffered by surviving family members. These damages often include:
- Victim’s Damages: These damages are pursued through a survival action and include pre-impact fear, pain and suffering, medical expenses, and any other damages the victim suffered from the moment the injuries occurred until the time the victim died.
- Loss of Support: Authorized survivors can recover for support services they received from the victim, including cooking, cleaning, and driving. Damages will be measured based on the cost of securing these services from another party.
- Loss of Companionship: Surviving family members can recover damages for the loss of the intellectual, emotional, and physical support they received from the victim.
- Funeral Expenses: The out-of-pocket costs associated with the victim’s burial should be included in a damages demand.
- Lost Earnings: If the victim contributed financially to the survivors, include an estimate of lost future earnings.
- Mental Pain and Suffering: Survivors are likely to experience significant emotional distress including grief and anguish. Work with your lawyer to include an appropriate monetary demand for this mental pain and suffering.
Calculating damages in a wrongful death suit is complicated because it requires the jury to make assumptions about the life the victim would have led if not for the defendant’s negligent actions. Considerations include the victim’s:
- Life expectancy prior to the accident;
- Work habits, position, and goals;
- Future earning ability; and
- Age and life expectancy of qualified survivors
The above factors are also relevant when considering any settlement offer made by the defendant or their insurance provider. Settlement is often preferred to proceeding to trial because it removes the uncertainty of trial. Be sure not to settle for less than you deserve. Your lawyer can help discuss the pros and cons of any settlement offer.
You will also need to determine the method of payment for any settlement offer. Wrongful death settlements take one of the following structures:
- Lump Sum Payment: In a lump sum settlement offer, the survivors receive a single payment of the full settlement amount. Survivors often prefer this option because it allows for immediate payment of medical and other expenses and provides future financial flexibility.
- Structured Settlement: A structured settlement pays out damages in agreed upon amounts over time. A structured settlement doesn’t allow the same flexibility as a lump sum payment but does allow for better management of long-term expenses. Think carefully before accepting a structured settlement because the structure is very difficult to change after acceptance.
As you consider a settlement, also factor in any debts owed by the victim. Survivors are often responsible for paying creditors, and this might affect the value of settlement you are willing to accept.
Wrongful death actions are complicated and stressful, especially because survivors are still dealing with the void the loss of a loved one has left in their life. This is why it is important to work with an experienced wrongful death attorney. An experienced attorney will make sure that the right person files a claim, that all required procedures are followed, and will advocate for you to receive the recovery you deserve.
Contact the Law Office of John W. Redmann, LLC today to schedule a free consultation of your New Orleans wrongful death claim.