|By Practice AreaBankruptcyChild CustodyCriminal LawDivorceFamily LawLabor & Employment LawMedical MalpracticePersonal InjuryReal EstateTaxationWills & ProbateMore...||By Life EventsGetting a DivorceWrite a WillBankruptcy, Credit and DebtHome Disaster RecoveryLosing a JobLandlord TenantAutomobile AccidentPrivacy ViolatedCare for an Aging RelativeIdentity TheftHot Topics on Lawyers.comMore...||By LocationCaliforniaFloridaGeorgiaIllinoisMichiganNew JerseyNew YorkOhioPennsylvaniaTexasWashingtonMore...|
|Legal ForumsRegisterSign inBankruptcyBusinessCriminalEmploymentFamilyImmigrationReal EstateMore...||Ask a LawyerAsk a QuestionChat Archives|
New Jersey’s Wrongful Death Act and Survival Statute – NJ Accident Lawyers, Koles, Burke & Bustillo
A wrongful death claim is a lawsuit that arises when an individual is killed as a result of the conduct of another person. A wrongful death lawsuit is different from other types of personal injury claims because the actual victim (the "decedent") is not the person bringing the lawsuit; rather, it is the family members of the decedent or the representative for the decedent's estate who are initiating the lawsuit.
Survivor Action Compensates for Losses to the Decedent
A wrongful death claim is brought to recover damages for the injuries that the surviving family members and/or decedent's estate have suffered due to the death of the victim. Pursuant to New Jersey's Wrongful Death Act and Survival Statute, the heirs and dependents of a person killed in an accident are entitled to legal remedies. The damages recovered do not include damages that are personal to the decedent, since the decedent is not allowed to recover for pain and suffering, mental distress, or any other form of compensatory damages. Under New Jersey law, a separate statutory remedy called a survivor action compensates for losses to the decedent. Technically, monetary awards in a survivor action belong to the decedent's estate. However, since the victim's heirs are typically the ultimate beneficiaries of the decedent's estate, the victim's family members will receive any resulting recovery. Recovery on a survivor action is subject to attachment by the creditors of the victim.
New Jersey's Wrongful Death Act Compensates the Family of the Victim
The purpose of the wrongful death suit is to provide relief to family members who have been injured emotionally and financially as a result of their family member's death. In many cases, a significant component of this recovery is for the loss of financial support provided by the decedent. This amount is based on the amount of monetary contribution the decedent might reasonably been expected to provide to the survivors, as adjusted for inflation, and discounted to reflect the present value of future projected earnings, as explained below.
New Jersey's Wrongful Death Act also allows for recovery for loss of companionship; the monetary value of parental guidance and care provided by the victim to his or her dependents; the value of household services provided by the victim, such as cleaning, babysitting and other household duties; and hospital, medical and funeral expenses of the victim. Punitive damages and damages for loss of emotional support are not recoverable.
New Jersey's Wrongful Death Act does not allow for recovery for emotional distress caused by the death of the victim. A separate tort action for the negligent infliction of emotional distress is required. This requires a showing that the defendant's negligence was the cause of death or serious injury of another; a close familiar relationship existed between the plaintiff and the victim; and the plaintiff actually observed the death or injury at the scene of the accident, resulting in severe emotional distress to the plaintiff.
Damages recovered in a wrongful death action are not subject to attachment by the creditors of the decedent. Damages recovered are for the sole benefit of the victim's heirs, and priority is given to the dependents of the victim.
Discounting Damages to Reflect Present Value
In many wrongful death cases, a significant component of the recovery is for the loss of financial support provided by the decedent. Typically, this amount is calculated by multiplying the decedent's earnings at the time of death by the number of anticipated years before retirement or expected death using a life expectancy table.
For example, if a spouse at age 40 is earning $50,000 at the time of death, and he was not expected to retire or die for the next 25 years, his yearly earnings would be multiplied by the number of years he was expected to continue working ($50,000 x 25). In this example, the expected future loss would be $1,250,000.
When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Since most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars. The purpose for using present value is to ensure that a successful plaintiff will receive a sum that if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise, provided it is conservatively invested.
Common Causes of Wrongful Death
¨ Automobile Accidents
¨ Aviation Accidents
¨ Boating Accidents
¨ Motorcycle Accidents
¨ Accidents involving large trucks or big rigs
¨ Medical Malpractice
¨ Defective Products
The following resources provide useful information regarding insurance, safety and other consumer information:
National Highway Traffic Safety Administration has information on traffic safety, vehicles and equipment, and research statistics on traffic safety www.nhtsa.dot.gov/
Federal Trade Commission Web site provides useful consumer information on purchasing, leasing, or renting vehicles: www.ftc.gov/bcp/menu-auto.htm
Insurance Institute for Highway Safety provides injury, collision & theft loss information on recent vehicle models: www.iihs.org/
Institute provides answers to consumer's questions regarding insurance: www.iii.org/individuals/auto/
National Safety Council provides information on driver safety, including air bag and seat belt safety: www.nsc.org/issues/drivsafe.htm
Aviation Accident Resource Center provides answers to frequently asked questions about aviation accidents, including resources and what to do if a loved one is a victim of an aviation accident: www.aviationlawresources.com/index.html
U.S. Coast Guard's Web site for recreational boaters provides information on boating safety, product recalls, and boating hazards and statistics www.uscgboating.org/
Consumer Product Safety Commission's Web site provides information on product recalls and safety news, as well as information on how to report an unsafe product www.cpsc.gov/
Motorcycle Safety Foundation is a non-profit organization that provides information on safety research and state laws pertaining to motorcycles www.msf-usa.org/
National Patient Safety Foundation provides information and resources related to patient safety www.npsf.org/
American Medical Association information on physician ethics and standard of care and filing a complaint against a physician
Federal Drug Administration MedWatch Program has information on drugs and other medical products for consumers, including information on how to report an unsafe product or drug www.fda.gov/medwatch/
Experienced Counsel is Essential in Wrongful Death Cases
The death of a loved one is a traumatic event, and the thought of initiating a legal proceeding to preserve your legal rights can be overwhelming. However, it is important to act promptly to preserve evidence, investigate the cause of the accident, and to file a lawsuit prior to the deadline imposed by the statute of limitations.
The success of your case depends not only on the merits of the case but on your attorney's understanding of New Jerseys complex statutory wrongful death laws. Although in many instances a wrongful death action is similar to a personal injury action, the crucial difference lies in the type of recoverable damages. A wrongful death action permits recovery for financial losses only. Although damages are not awarded for emotional loss, pain and suffering, and other non-financial losses, New Jersey courts have taken an expansive approach on permitting recovery. The attorneys at Koles, Burke and Bustillo understand the complexities and nuances of the law and have extensive experience in dealing with wrongful death cases. We are available to answer any questions you may have regarding the loss of your loved one.