How Do I Prove Wrongful Death?
Losing a loved one suddenly puts a tremendous strain on your entire family. You are dealing with profound grief and confusion; in some cases, you may feel angry. All of these emotions are perfectly normal reactions to a loss. When you expect the loss, you can temper some of your feelings. A sudden loss may exacerbate these feelings.
When someone is lost suddenly, it is customary to wonder what happened to cause their death. Unfortunately, in some instances, families may learn their loved one would have been alive had it not been for the action or inaction of another person or party. When this happens, there may be a basis for filing a wrongful death claim.
Arizona Wrongful Death Claims
Under Arizona law, wrongful death is “a death caused by wrongful act, neglect or default.”
Wrongful death statutes allow certain family members to file a claim if they can prove that their loved one would be alive had it not been for the act that resulted in their death.
To prove wrongful death, you must prove:
- Duty of Care
- Breach of Duty of Care
- Proximate or Actual Cause
- Damages Suffered
These are the four elements that your wrongful death attorney must demonstrate before they can pursue a wrongful death suit. Let’s look at each element, so you understand what each means.
Duty of Care
The legal dictionary defines the duty of care as “a requirement that a person act toward others and the public with the watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would use. ”
This definition is broad, but in effect, it means that a person must act reasonably given the circumstances. Let’s take someone traveling on the roadways in Arizona. Reasonable care would be the person operating a vehicle obeying traffic signals and speed laws and yielding the right of way when appropriate. Every person operating a motor vehicle must fulfill these reasonable expectations. They owe a duty of care to other drivers, passengers in vehicles traveling on roadways, motorcycle operators, bicyclists, and pedestrians.
Breach of Duty of Care
A breach breaks or fails to observe a law, agreement, or code of conduct. To breach a duty of care that means you have to fail in your duty of care.
Examples of this when it relates to traffic accidents include:
- Running a red light
- Failing to observe speed limits
- Driving while distracted
- Driving under the influence of drugs or alcohol
- Failure to yield right of way
These are just a few examples of how a driver can breach their duty of care owed to others with whom they share the roadways of Arizona.
Proximate or Actual Cause
The next element of proof required is that the decedent would be alive except for the actions of the person who breached their duty. In some cases, this is simple to show. For example, if two cars hit head-on because one of them crossed over a lane, ultimately going in the wrong direction, and the other driver died immediately in the collision, the actual cause of death is easy to prove.
There are more complicated situations that occur on Arizona roadways. A motorcyclist is traveling in an outside lane, enjoying a warm afternoon. A semi-truck does not see the motorcycle in its mirror and signals, then moves into the same lane knocking the motorcyclist off the vehicle and throwing them to the side of the road.
The motorcyclist suffers serious head trauma and is admitted to the hospital, where they lie in a coma for four days. The victim wakes up from the coma. The following day, the motorcyclist’s blood pressure spikes and drops suddenly. The doctors run tests and find internal bleeding. However, they cannot stop the internal bleeding, and the victim dies.
Under this scenario, the proximate cause of death is the injuries suffered in the motorcycle accident. While the motorcyclist died due to complications, the family may have a strong wrongful death claim.
When someone is removed from the scene of an accident by ambulance, the medical bills begin immediately. Whether someone injured has medical insurance coverage or not, they are likely to receive bills from the moment they go to the hospital. When someone dies at the accident scene, their bodies go to the hospital so family members can identify them and claim their bodies.
In both cases, the damages suffered include medical bills and funeral and burial expenses. In both cases we previously described, there are also lost wages. Therefore, identifying damages suffered is relatively easy to show.
A wrongful death lawyer will establish these four elements before submitting a wrongful death claim for the victim’s family.
Types of Documentary Proof in Wrongful Death Claims
Every roadway accident will generate documents that can bolster a wrongful death claim.
Some of the most common documents include:
- Accident reports – When an accident occurs in Arizona that results in bodily injury, damages of over $2,000, or death, the participants must file an accident report with the proper authorities. These accident reports are available to anyone involved in the accident or to their families if they lose their lives. Officers file the accident reports with the local jurisdiction in cases where an accident occurred within city limits and not on a state roadway. In all cases, officers must file accident reports in 14 days. Accident reports will provide valuable details, including whether officers cited someone for causing the accident. The Arizona Department of Public Safety handles any accidents on state roadways.
- Witness statements – As part of the accident investigation, police may ask witnesses to provide statements indicating what they saw immediately before the accident. This information can prove the responsible party’s wrongdoing.
- Photos and videos – If anyone could take photographs in the immediate aftermath of the accident, or if police took photographs or created diagrams of the scene as part of their investigation, you can use them to prove who caused the accident. Additionally, a video may be requested from AZDOT from traffic cameras near the accident scene. This footage automatically overwrites after 30 days, so make sure your lawyer requests this evidence as soon as possible.
- Medical records – The records from the medical team who treated the decedent following the accident until the time of death will be an invaluable tool in making the case that, but for the accident, the decedent would not have lost their life.
Any documents which pertain directly to the accident or the decedent’s care immediately following the accident can prove their injuries and damage to their vehicle. An experienced wrongful death lawyer may obtain this information.
Time Limits for Wrongful Death Claims
Under Arizona statutes, plaintiffs must file a claim for wrongful death within two years of the death. The surviving spouse may file these claims, a surviving child or children, a parent or guardian of the decedent if the deceased left no spouse or children (or if the victim was a minor), or by the executor or administrator of the estate of the victim.
Meeting the deadlines may seem easy, but some built-in delays can shorten this timeframe. Police reports may not be available for up to two weeks after an accident, gathering witness statements could take time, and conducting a thorough investigation of the accident also takes time. These delays impact the amount of time it takes to file a claim.
Hiring a personal injury attorney as soon as possible after losing a loved one can help families focus on their family while dealing with the grief associated with their loss. Family members will all process their grief differently, and they need time to process their pain. Hiring a lawyer with experience dealing with these complicated cases can take that burden from the family.
How Insurance Adjusters Deal with Wrongful Death Claims
When a family member files a claim for compensation with the responsible party’s insurance company, the insurance company will assign the claim to an adjuster. The adjuster is not there to help the claimant in any manner. Their entire role is to help their employer, the insurance company.
Insurers make money when people pay their premiums. Insurers lose money when they pay out claims. The adjuster’s job is to ensure the insurance company pays as little as possible for any claim, including wrongful death claims.
- Deny liability – Adjusters will look for any discrepancy in the police reports and other statements surrounding the accident to determine if there is any indication there may be multiple parties responsible. If they find one, they will deny the liability of their client.
- Issue unreasonable demands – Insurance companies will often make unreasonable demands such as requesting recorded statements, demanding full access to the decedent’s medical records, and asking for signatures on numerous documents. For this reason, hire a wrongful death attorney familiar with these tactics to deal with insurance adjusters.
- Offer fast but low settlement offers – To get out of paying too large a settlement, insurers will often offer a fast settlement for far less than the losses a family suffered. They expect you will take the offer because of your uncertain finances. Never accept an initial offer from an insurance company when you lose a loved one until a lawyer reviews it.
These are only a few ways that insurance companies will attempt to avoid paying a victim’s family or estate for the losses they have suffered. An attorney will enter into good faith negotiations on your behalf. If the insurer is unreasonable or unwilling to make a fair settlement offer, your lawyer may decide that your best option is filing a wrongful death lawsuit.
Affording an Attorney to Assist With a Wrongful Death Claim
While some people may wonder when to hire a personal injury lawyer, most of the time, concern over finances is what prevents people from seeking legal advice. This is unnecessary.
Wrongful death lawyers offer:
- Free consultations – Nearly all personal injury attorneys offer free case evaluations. These interviews with potential clients allow you to determine whether you have a valid claim and understand your legal rights after losing a loved one.
- Contingency fee agreements – Nearly every wrongful death lawyer uses a contingency fee agreement. This means that you do not pay for legal costs unless and until the lawyer successfully obtains a settlement on your behalf.
Once you retain an attorney and sign a retainer agreement, the attorney will handle all negotiations for you. In addition, because the law firm knows that the wrongful death case may require a trial, they will prepare a court case while still carrying on negotiations.
An attorney working on your behalf will reduce your stress at this extremely difficult time.
If you have lost a loved one and are uncertain what legal steps you can take to hold the responsible party accountable, contact a wrongful death lawyer today and find out more about the services they can provide and your legal options.