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Accidental injuries are the third-leading cause of death in Arizona. These fatal injuries result from all types of traumatic incidents, from car accidents to drownings. Sadly, these accident victims often leave behind huge financial and emotional holes to fill.
In old English and American common law, a person’s legal claims died with them. Under this rule, at-fault parties were best off when the victim died. When that happened, the at-fault party’s civil liability for causing a fatal injury simply disappeared.
This outcome is wrong from both a legal and a human perspective. As a result, Arizona changed this rule by creating survival and wrongful death actions. A survival action belongs to the deceased person’s estate, allowing it to recover the deceased person’s losses. A wrongful death action belongs to the family members and gives them a way to recover their losses from their loved one’s death.
Torgenson Law fights for justice and financial compensation after you lose your family member due to someone else’s actions. Contact us to learn how we can help you and your family recover financial compensation for your family member’s death.
To prove a wrongful death claim, you must:
You need experienced Peoria wrongful death lawyers on your side during your case. Your lawyer must assess the value of your case and develop a legal strategy that will accomplish your goals.
Both survival and wrongful death actions require you to prove the other party’s liability for the fatal injury. Your lawyer has three legal theories available to prove liability.
Negligence forms the basis for most personal injury claims. The benefit of negligence is that your lawyer does not need to prove the other party’s intent. They do not need to get into the other person’s head to learn what they thought. Instead, your lawyer only needs to prove the other party did something that they knew or should have known to be unreasonably dangerous.
Specifically, in a negligence claim, your lawyer must prove four elements:
The duty comes from the relationship between the other party and the deceased victim. Drivers owe a duty of care to other motorists, pedestrians, and cyclists. Property owners and managers owe a duty of care to invited visitors.
They breach this duty by failing to exercise reasonable care. This breach might come from a legal violation, such as disobeying a red light. In other situations, breaches come from carelessness, such as failing to quickly clean up a spill.
Harm is the fatal injury suffered by your loved one. Your lawyer needs to show a factual and logical connection between the breach of duty and the fatal injury.
The lawyer must also prove that the other party’s actions were the type that could foreseeably cause death. This does not mean the other party actually foresaw the death. Instead, it means that they should have known that their actions were dangerous enough to injure someone fatally.
Intentional harm can lead to both homicide charges and a wrongful death claim. But there are differences between homicide and wrongful death. The state brings homicide charges, and the accused could land in jail if prosecutors win the case. The family members bring wrongful death claims, and the at-fault party will have to pay damages to the family and the estate if they lose.
For intentional harm, your lawyer must prove that the other party intended to make harmful contact with the accident victim. They need not prove they intended to kill the victim. But they must have known their action would cause harm, even if it was only offensive.
Another difference happens when it comes time to prove the case. In a criminal prosecution, prosecutors must persuade the jury “beyond a reasonable doubt.” For a wrongful death claim, your lawyer only needs to persuade the jury by a “preponderance of the evidence.” Lawyers often quantify this by saying jurors must be 100% sure for a criminal prosecution and over 50% sure for a civil judgment.
Strict liability means your lawyer does not need to prove intent or negligence. Instead, the lawyer only needs to prove the other party was responsible for the instrument that caused the fatal injury. Strict liability covers two main areas of injury law in Arizona.
First, manufacturers are strictly liable for injuries that result from defective products. To prove strict liability, your lawyer must prove:
Second, dog owners are strictly liable for fatal dog bites. To prove liability for dog attacks, your lawyer must prove:
The dog’s bite history and the owner’s efforts to restrain it are irrelevant.
Any type of accident can become a fatal accident. Some common causes of wrongful death claims include:
According to the National Safety Council, the second most likely cause of accidental death is motor vehicle crashes. Crashes produce enormous forces that can cause fatal brain or spinal cord injuries.
Pedestrian, motorcycle, and bicycle accidents also fall high on the list of causes of accidental death. These types of traffic accidents can cause fatal head trauma, a fractured neck, or severe blood loss.
Falls sit right behind motor vehicle crashes as a likely cause of accidental deaths. Accident victims can die from same-elevation falls, like slip-and-fall accidents or elevated falls.
Many types of accidents can cause someone to stop breathing. Examples of these accidents that might support a wrongful death claim include:
When the brain does not receive enough oxygen, it dies quickly. Four minutes without oxygen causes permanent brain damage. Death can result in just eight minutes total.
Burns can be fatal. The skin protects the body from dehydration and infection. When it gets compromised, the victim is vulnerable. Even if the victim avoids burns, they can still die from smoke inhalation.
Statutes of limitations can present complex issues in a case. In many cases, the family must file a claim for wrongful death within two years of the death. But the time can change based on the circumstances.
You should consult a lawyer as quickly as possible after your loved one’s death to make sure you do not miss the deadline. A judge can dismiss cases filed after the statute of limitations expires.
Equally importantly, you should speak to a lawyer even if you think you may have run out of time. Arizona’s statute of limitations has several exceptions that allow a judge to excuse a late filing. Peoria wrongful death lawyers from Torgenson Law can analyze your situation and determine how much time you have to pursue a claim.
A survival action belongs to the deceased person’s estate. Only the personal representative of the deceased person’s estate can file a survival claim. The personal representative is either:
A wrongful death action belongs to the family. The action can be filed by a family member or the deceased’s personal representative. Specifically, any of the following people can file the claim:
If more than one person has suffered losses, they must jointly file a single wrongful death claim. Conversely, the personal representative can file on behalf of the family when none of the family members want to file the claim. When a deceased person has no living family members, the personal representative can pursue a wrongful death claim on behalf of the estate.
Any compensation recovered in the case will go to the family members in proportion to their losses. When the personal representative files the claim for the estate, the compensation gets included in the estate.
The compensation for survival and wrongful death claims differ significantly. The compensation recovered also gets handled differently.
A survival claim started as a personal injury claim belonging to the deceased person. But after they die, the claim goes to the estate. This claim covers the losses incurred by the deceased accident victim and their estate, starting with their injury. However, under Arizona law, the damages in a survival action cannot include the deceased person’s pain and suffering, also called non-economic damages.
Instead, the damages recoverable through a survival claim will only include the economic damages incurred by the deceased victim and their estate. Some common examples of these losses include:
To include an expense in a survival action, it must have been paid or billed to the deceased person or the estate. Thus, if a relative paid for the funeral, the estate can only include it in the survival claim if it reimburses the relative for the cost.
A wrongful death claim springs into existence when the person dies. This claim belongs to the family members and encompasses all of their losses caused by the death. Unlike a survival claim, a wrongful death claim can include both economic and non-economic damages.
Some examples of economic damages family members may experience after the death of a loved one include:
The law does not allow double-dipping by including an expense in both a survival claim and a wrongful death claim. For example, if the estate paid for the funeral, the cost will be included in the survival claim. If the family paid for it, the cost goes into the wrongful death claim. It cannot be included in both unless they split the cost.
The loss of a loved one can cause more than financial losses. The absence of a loved one can diminish the quality of life of their family members. Non-economic damages in a wrongful death claim can include:
You cannot put a dollar value on these losses. Instead, Arizona law instructs the jury to award “damages as it deems fair and just.”
A survival and wrongful death claim can give the family of a deceased victim a path for financial compensation. Equally importantly, it gives the family members a way to seek justice from the business or person who caused their loved one’s death. Contact Torgenson Law online or call 602-726-0747 to discuss your loss and how we can help.
