Losing a loved one, especially when it's the result of a preventable accident or illness caused by another person's action or inaction, is an experience none of us want to endure. All emotions aside, however, wrongful death cases can take a financial toll. On behalf of the estate (typically), survivors (usually family members) can often file a wrongful death lawsuit in Wisconsin. Though these claims are never what a person wants to do, they are often necessary and practical for the mere financial part of it.
At Anne MacArthur Law LLC, our wrongful death attorney in South-Central Wisconsin understands what you are going through and will persevere to obtain the best possible legal outcome. Contact us today at 608-441-5109 to schedule a free consultation. In the meantime, here's an overview of what a wrongful death claim in Wisconsin may involve.
What Constitutes a Wrongful Death Lawsuit in Wisconsin
When someone dies as a result of the negligence or misconduct of another person, the family of the deceased person may file a wrongful death claim against the person at fault. A wrongful death lawsuit is a civil lawsuit brought against an individual, company, or government agency.
In a wrongful death claim, a plaintiff can seek compensation for things like:
- lost income
- medical expenses prior to the death
- funeral and burial expenses
- pain and suffering
- lost companionship
- lost prospect of inheritance.
While the specific laws vary between states to establish a wrongful death claim, a plaintiff generally needs to show the cause of death by satisfying four elements.
- The plaintiff owed a duty of care to the deceased person (also referred to as the decedent).
- They breached this duty of care (either negligently or intentionally).
- This breach caused the decedent's wrongful death.
- The plaintiff suffered losses as a result.
After establishing these elements, it then turns on the question of who can file the wrongful death claim in Wisconsin.
Who Can File a Wrongful Death Claim in Wisconsin?
Wrongful death lawsuits are usually brought by a representative of the decedent's estate (often the executor) on behalf of or with survivors who suffered financially as a result of the death, referred to as the “real parties in interest”.
The definition of a real party in interest depends on the jurisdiction. In most states, they are the immediate family members of the decedent, including:
- Parents of young children
Many states also recognize life partners who were financially dependent on the decedent.
Relationships beyond immediate family members or life partners may not be eligible to file a wrongful death suit, depending on the relevant law. For example, only some states recognize extended family members like grandparents and siblings. Some states also recognize parents of a deceased fetus as real parties in interest.
Common Causes of Wrongful Death Claims in South-Central Wisconsin
Wrongful death claims often arise in the context of the following.
- Car accidents, especially those involving drunk drivers. If the case involves intoxication, the lawsuit may also name the person who served the driver alcohol as a defendant
- Other auto accidents or related-auto accidents, including those involving commercial trucks, semi-trucks, motorcycles, boats, pedestrians, and bicyclists
- Medical malpractice, when a practitioner fails to provide an acceptable level of care that leads to a misdiagnosis, surgical mistake, prescription error, birth injury, or any other harm
- Product liability, e.g., a defective medication causes someone's death
- Airplane accidents, where the airline, plane manufacturer, or pilot may be named as defendants
- Workplace accidents or construction accidents, including deaths caused by falls, falling objects, improper training, or exposure to toxic substances
- Premise liability accidents, e.g., a slip and fall or another accident occurring on someone else's property
What Are Common Defenses to Wrongful Death Claims in Wisconsin?
The defenses available to a defendant in a wrongful death claim and their application vary between states. If you are the plaintiff, it is important to know what potential defenses are so that you can be prepared to argue against them.
Some common defenses include:
- Expiration of the statute of limitations, where the plaintiff has filed their claim beyond the deadline and is now ineligible to recover
- Comparative or contributory negligence, where the defendant alleges the decedent's negligence contributed to their death
- Assumption of risk, where the decedent knew about the risk associated with an activity or signed a waiver or release accepting it
- Self-defense, where the defendant says they used reasonable force against the decedent to protect themself from the decedent causing serious harm to them
Whether a specific defense applies depends on the circumstances of the case. It's also important to remember that just because a defense is invoked, it does not mean you can't argue against it. When a defense is invoked, the defendant must prove it.
The standard of proof in a wrongful death action is the civil standard of a preponderance of the evidence. In other words, it is more likely than not that the defendant's actions resulted in the wrongful death.
Contact a Wrongful Death Attorney in South-Central Wisconsin Today
If you lost a loved one and believe you may have a wrongful death claim but are unsure, our wrongful death attorney can help you understand what your legal options are. Time is of the essence, though.
The statute of limitations begins running at the time of death, and the period to file a claim is often shorter than it is for any other type of personal injury claim. To know how long you have to file a claim, contact Anne MacArthur Law LLC today by filling out the online form or calling us at 608-441-5109. We will schedule a free consultation with our wrongful death attorney so that you can get the legal advice and representation you need.