How Do You Prove Wrongful Death? 

When the results of a criminal investigation lead prosecutors to believe there is enough evidence to convict one individual of having deliberately caused another’s death, they may file any of several felony charges related to the death. In these instances, the friends and family of the deceased person may have the opportunity to observe as the state takes on the duty of prosecuting the crime. However, not all cases will lead to criminal charges – and even a “guilty” verdict will not result in compensation for surviving family members. Surviving family members who have suffered losses as a result of the death may still be able to seek monetary compensation through the civil courts, regardless of whether a criminal case is pursued. These civil actions, known as wrongful death cases, are subject to a different set of evidentiary requirements from those prosecuted through the criminal justice system. If you are wondering “How do you prove wrongful death?” consulting with an experienced wrongful death attorney in your state may help you determine your next steps. In Florida, New Hampshire, or Vermont, call the offices of Shillen Mackall Seldon & Spicer at (802) 457-4848 to schedule a meeting with a member of our compassionate and knowledgeable wrongful death team.

What Is the Legal Definition of Wrongful Death? 

A wrongful death action is a civil lawsuit, closely related to personal injury claims. The main difference between a wrongful death case and a personal injury lawsuit is that in a personal injury lawsuit, the party who has suffered injury files a legal action to recover compensation for damages on their own behalf. A wrongful death claim is filed when the “personal injury” has led to the person’s death. 

The deceased person cannot file a claim on their own behalf, but surviving family members who depended on the deceased individual for support, companionship, and guidance may still be able to seek compensation for the loss of the contributions they might reasonably have expected the alleged victim to make, had they survived. The laws that determine who can file a wrongful death claim vary by state, so before attempting to file a claim you may wish to speak with an experienced wrongful death lawyer in your jurisdiction. 

What Is the Burden of Proof for Wrongful Death? 

Because a wrongful death action is filed under circumstances in which the deceased person might have been able to pursue compensation via a personal injury lawsuit, had they survived, most of the elements the plaintiff will need to prove in a wrongful death case are similar to those that would be needed to prevail in a personal injury case. If you are wondering, “How do you prove wrongful death?” there are four essential elements to keep in mind.

#1. Duty of Care

The defendant (the party alleged to have caused the death) owed the deceased person what is known legally as a “duty of care.” The kind of care involved will depend on the case, but a typical example would be the responsibility of businesses whose premises are open to the public to ensure that those spaces are reasonably safe for visitors. 

#2. Breach of Duty 

A wrongful death case will only succeed if it can be proven that the duty of care owed by the defendant to the deceased was broken. States have an obvious interest in preventing doctors, nurses, and other medical professionals from the threat of frivolous lawsuits, as the fear of facing a legal challenge could easily inhibit medical practitioners’ genuine attempts to diagnose illnesses and implement treatments. As a result, the “breach of duty” element is sometimes subject to special requirements in wrongful death claims that are based on allegations of medical malpractice. An experienced wrongful death lawyer with Shillen Mackall Seldon & Spicer may be able to help you understand how the laws governing legal actions alleging medical malpractice in Florida, New Hampshire, or Vermont might affect your case. 

#3 Causal Link

Simply breaching a duty of care will not necessarily make the defendant liable – legally responsible – for the alleged victim’s death. People breach their duties of care every day, through accident or inattention; however, those breaches only sometimes result in actual harms. In order to prevail in a wrongful death case, therefore, the plaintiff must show that the defendant’s breach in the duty of care they owed to the deceased person led directly to the individual’s death. 

#4 Damages 

The first, second, and third elements that a plaintiff is required to prove in a wrongful death case serve to establish the defendant’s legal responsibility for the death in question. In order to recover compensation, however, the plaintiff must also show that they have suffered damages as a result of the death. Those damages in most states can include both financial losses, such as the loss of a parent’s income, and losses that are not directly tied to financial considerations, such as the loss of parental guidance or the loss of a spouse’s companionship and support. The criteria for calculating damages in a wrongful death case varies by state, but regardless of the precise calculations involved the plaintiff will still need to demonstrate that they have suffered damages as a result of the death before they can be awarded compensation. 

How Are Wrongful Death Settlements Calculated? 

According to Cornell Law School’s Legal Information Institute, the damages awarded in wrongful death cases vary by state, as do the identities of the parties who are eligible to file wrongful death claims. While the surviving minor children of a deceased parent are the paradigmatic examples of claimants in wrongful death cases, it is typical for state laws to require that a guardian or other authorized party file the legal action on the child or children’s behalf. Surviving spouses are similarly eligible to seek compensation in most jurisdictions, but only some states allow other family members, such as parents or siblings, to file a wrongful death claim. 

Typical damages sought in wrongful death cases include calculations for:

• loss of financial support (for dependents, frequently members of the deceased person’s former household)
• loss of parental guidance and care (especially for minor children)
• loss of consortium (for spouses) 

Some states allow for, and award, punitive damages as well. Punitive damages, as their name suggests, are intended to punish the party found liable for the death, usually with a view toward “setting an example” as a deterrent to actions or negligent practices similar to those that led to the death. 

What Is the Wrongful Death Statute in Florida? 

In Florida, financial damages in wrongful death cases may include calculations for the period from the deceased person’s injury until their time of death, allowing surviving family members to account for the economic losses that may have been suffered between the initial incident that led to their loved one’s death and the actual date on which the individual passed away. These injury-to-death calculations can be important in cases in which extensive medical treatments were administered in protracted, and in many cases highly expensive, attempts to prevent the untimely death. 

According to § 768.21 Fla. Rev. Stat. (2023), calculations may also be made for projected future losses. In these instances courts (and family members filing legal action) will need to consider the deceased person’s earning capacity at time of death or injury, the individual’s expected future earning capacity based on age, work history, and career path, the age of any minor children the deceased person has left behind, and a variety of other factors. 

How Are Wrongful Death Claims Calculated in New Hampshire? 

The New Hampshire Revised Statutes include provisions broadly similar to those of Florida regarding the types of damages that may be sought in New Hampshire wrongful death cases. Unlike Florida, however, New Hampshire’s RSA 556:12 sets a monetary limit, or “cap,” on the total amount of compensation that may be awarded to a surviving spouse for loss of companionship, at $150,000. This sets the total compensation a bereaved spouse may seek for non-economic losses lower than the statewide limit for non-economic compensation in personal injury suits more broadly, which RSA 508:4-d establishes as $875,000. 

What Are the Wrongful Death Damages in Vermont? 

Like both Florida and New Hampshire, Vermont has established the right to damages for both economic and non-economic losses stemming from the wrongful death of a family member. Unlike New Hampshire, Vermont does not set a precise limit on the damages that may be awarded to a surviving spouse for loss of consortium; instead, 14 V.S.A. §1492 outlines strict requirements for how any damages awarded must be apportioned among the victim’s surviving family, beginning with his or her spouse, if the individual was married at their time of death. Vermont law also makes a widow or widower’s right to compensation contingent upon not having abandoned or neglected the victim prior to the individual’s death, meaning that the conduct of the surviving spouse may become a matter of discussion during the proceedings in a Vermont wrongful death case. 

Discuss Your Circumstances With an Experienced and Compassionate Vermont Wrongful Death Attorney 

Wrongful death cases are always founded on tragedy. Bereaved family members often struggle to navigate the complexities of civil litigation while also processing their grief. Bewilderment and stress can easily lead to confusion, resulting in costly mistakes that can impede the plaintiff’s ability to prove their case and see justice served. If you are grappling with “How do you prove wrongful death?” consider working with an understanding attorney experienced in the wrongful death area of law. Connect with a member of our supportive wrongful death team at Shillen Mackall Seldon & Spicer by calling (802) 457-4848 today.