Who Can File a Wrongful Death Lawsuit?

Losing a loved one is an emotionally devastating experience, especially when their death results from someone else's negligent or wrongful actions. In these tragic circumstances, North Carolina law provides a legal remedy through wrongful death lawsuits. At The Law Offices of John M. McCabe, we understand that no amount of financial compensation can replace your loved one, but a wrongful death lawsuit can provide a measure of justice and help secure your family's financial future.

This guide answers the crucial question: Who can file a wrongful death lawsuit? We'll explore North Carolina's specific laws regarding wrongful death claims, eligibility requirements, the role of personal representatives, and important deadlines you need to know.

What Are Wrongful Death Claims in North Carolina?

Before discussing who can file a wrongful death lawsuit, it's important to understand what constitutes a wrongful death under North Carolina law.

According to North Carolina General Statutes § 28A-18-2, a wrongful death is defined as a death caused by a "wrongful act, neglect or default" of another party. In other words, wrongful death is a death caused by carelessness, recklessness, or negligent act of another party.

Common Wrongful Death Claim Scenarios

At The Law Offices of John M. McCabe, we understand that wrongful death claims arise from tragic circumstances where negligence or wrongful actions lead to fatal outcomes. Here are common scenarios that may give rise to a wrongful death lawsuit:

• Motor Vehicle Accidents: Fatal car, truck, or motorcycle crashes caused by negligent driving, including distracted driving, speeding, or driving under the influence.
• Medical Malpractice: Deaths resulting from healthcare provider negligence, surgical errors, misdiagnosis, delayed treatment, or medication mistakes.
• Workplace Accidents: Fatal incidents occurring on job sites, particularly in high-risk industries like construction, manufacturing, or agriculture where proper safety protocols weren't followed.
• Defective Products: Deaths caused by dangerous or malfunctioning products, where manufacturers and sellers can be held liable under product liability law.
• Premises Liability: Fatalities occurring on another's property due to unsafe conditions like inadequate security, unmarked hazards, or poor maintenance.
• Nursing Home Negligence: Deaths resulting from improper care, abuse, neglect, or substandard conditions in long-term care facilities.
• Criminal Acts: Fatalities caused by intentional violent actions, where the perpetrator can face both criminal charges and a civil wrongful death lawsuit
• Pedestrian and Bicycle Accidents: Deaths of vulnerable road users struck by vehicles due to driver negligence or inadequate infrastructure.
• Commercial Transportation Incidents: Fatalities involving buses, trains, planes, or ships where operator error or company negligence played a role.
• Construction Accidents: Deaths at building sites due to falls, electrocution, being struck by objects, or caught-in/between hazards where safety regulations weren't properly implemented.

If you've lost a loved one due to any of these circumstances, our wrongful death lawyers can help determine if you have grounds for a wrongful death claim and guide you through the legal process to seek justice and compensation.

Who Can File a Wrongful Death Lawsuit in North Carolina?

In North Carolina, the laws regarding who can file a wrongful death lawsuit are quite specific. Unlike some states where family members can directly file claims, North Carolina has a different approach.

The Personal Representative Requirement

Under North Carolina's wrongful death statute, only a decedent's personal representative may file a wrongful death lawsuit. The personal representative is usually the executor or administrator of the decedent's estate. This is a crucial distinction that sets North Carolina apart from some other states.

Who serves as the personal representative depends on the specific circumstances:

1. If there is a will: If the individual who died had a written will, the executor named in the will serves as the personal representative who may bring a wrongful death case.
2. If there is no will: If the person died without a will, then the court appoints an administrator of the estate and the administrator is responsible for bringing the claim.
3. No estate opened: Sometimes a decedent does not leave a will nominating an executor, or no estate is opened after a decedent's death. In those cases, the decedent's family can petition the court to appoint a personal representative to pursue the wrongful death claim.

Who Can Serve as Personal Representative?

While only the personal representative can file the lawsuit, this individual is typically someone who was close to the deceased, such as:

• Surviving spouse
• Adult children
• Parents
• Siblings
• Other close family members

If no one has been appointed as the personal representative, a surviving family member who has rights under the North Carolina wrongful death statute can take action to get themselves appointed as the personal representative to bring the claim.

Where is the Wrongful Death Lawsuit Filed?

After receiving an appointment from the court, the executor or administrator can then file a wrongful death suit. They will typically file in the county where the decedent lived before their death or where the events that caused their death occurred.

Who Benefits from a Wrongful Death Lawsuit?

It's important to understand that although the personal representative files the lawsuit, they are not necessarily the one who will receive the compensation.

As mentioned above, the personal representative files the lawsuit on behalf of the victim's estate. Any jury award or settlement, however, is not an asset of the estate. The personal representative might be entitled to a portion of the settlement or verdict as one of the victim's heirs, but this has nothing to do with his or her role in filing the lawsuit.

In North Carolina, wrongful death proceeds are distributed according to the state's intestate succession laws. This means:

1. The compensation does not automatically go to the person who files the claim
2. The distribution follows a specific legal order of priority
3. The funds bypass the estate and go directly to the legal beneficiaries

The typical order of distribution, according to North Carolina law, is:

• Surviving spouse
• Children
• Parents
• Siblings
• More distant relatives

The specific allocation depends on which family members survive the deceased and their relationship to the deceased.

Time Limitations for Filing a Wrongful Death Lawsuit

If you're considering a wrongful death lawsuit, it's crucial to be aware of the time constraints.

Wrongful death lawsuits must be filed within a certain period of time, set by a law called a "statute of limitations." A wrongful death claim must be filed in a North Carolina court no later than two years from the date of the person's death.

It doesn't matter how strong your case is against the defendants or how egregious their actions were. If you miss this deadline, the court will almost certainly refuse to hear the case, and your family will not receive compensation.

This strict time limit emphasizes the importance of consulting with a wrongful death lawyer as soon as possible after losing a loved one due to someone else's negligence.

Damages Recoverable in a Wrongful Death Lawsuit

When filing a wrongful death lawsuit in North Carolina, the personal representative seeks compensation for various damages. While this isn't directly related to who can file a lawsuit, it's helpful to understand what damages are available to beneficiaries.

Damages recoverable for death by wrongful act include:

1. Expenses for care, treatment and hospitalization incident to the injury resulting in death
2. Compensation for pain and suffering of the decedent
3. The reasonable funeral expenses of the decedent
4. The present monetary value of the decedent to the persons entitled to receive the damages recovered

This fourth category includes compensation for:

• Loss of income and financial support
• Loss of services, protection, care, and assistance
• Loss of society, companionship, comfort, guidance, and advice

In cases involving particularly egregious conduct, punitive damages can also be awarded in a North Carolina wrongful death case if the death was caused by "malice or willful or wanton conduct." Unlike other types of damages, punitive damages are not intended to repay the family or the estate. Instead, they are meant to punish the defendant for the conduct that caused the death and to deter similar behavior in the future.

Potential Defenses in Wrongful Death Lawsuits

When filing a wrongful death lawsuit, it's important to be aware that defendants may raise various defenses to avoid liability. Understanding these potential defenses can help you and your wrongful death lawyer prepare a stronger case.

Common defenses in wrongful death cases include:

1. Contributory Negligence North Carolina follows a strict contributory negligence rule. Under the North Carolina law of contributory negligence, an individual who is partly responsible for an accident is not allowed to recover damages. This means if the deceased person was even partially at fault for the accident that caused their death, it could potentially bar recovery of damages.

2. Statute of Limitations As mentioned earlier, wrongful death claims must be filed within two years of the date of death. If this deadline passes, the defendant can use this as a defense to have the case dismissed.

3. Assumption of Risk In some cases, defendants may argue that the deceased knowingly assumed the risks associated with a particular activity, especially if they signed a waiver or release.

4. Pre-existing Conditions Defendants might argue that a pre-existing medical condition, rather than their negligence, was the actual cause of death.

Working with an experienced wrongful death lawyer is essential to overcome these potential defenses and build a compelling case for compensation.

How a Wrongful Death Lawyer Can Help

A wrongful death attorney can handle communications with insurance companies, negotiate settlements, and ensure that your rights are protected throughout the process. At The Law Offices of John M. McCabe, we can help you:

1. Determine who should serve as the personal representative
2. File the necessary paperwork to establish the estate
3. Gather crucial evidence to support your claim
4. Identify all potentially liable parties
5. Calculate the full extent of damages
6. Navigate complex legal procedures
7. Negotiate with insurance companies
8. Represent you at trial if necessary

Our personal injury lawyers understand the emotional and financial toll a wrongful death takes on families. We're committed to providing compassionate, personalized representation while fighting aggressively for the compensation you deserve.

Differences Between Wrongful Death and Criminal Cases

It's important to understand that a wrongful death lawsuit is separate from any criminal proceedings that might arise from the same incident.

There are other differences between a criminal prosecution for homicide and a wrongful death civil lawsuit. For instance, in a criminal case, the accused's guilt must be established "beyond a reasonable doubt," which is a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability must be shown only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death.

This means:

1. A wrongful death lawsuit is a civil action, not a criminal one
2. The standard of proof is lower in civil cases
3. A person can be found not guilty in criminal court but still be held liable in a wrongful death lawsuit
4. The outcome of a criminal case does not determine the outcome of a wrongful death lawsuit

Contact The Law Offices of John M. McCabe for a Free Consultation

If you've lost a loved one due to someone else's negligence or wrongful actions in Raleigh or surrounding areas of North Carolina, The Law Offices of John M. McCabe is here to help. Our wrongful death lawyers have the knowledge, experience, and resources to guide you through this difficult time and fight for the justice and compensation your family deserves.

We understand that no amount of money can bring back your loved one, but a successful wrongful death claim can:

• Provide financial security for your family's future
• Hold negligent parties accountable for their actions
• Prevent similar tragedies from happening to other families

Don't wait until it's too late to seek justice. Remember, in North Carolina, you have only two years from the date of death to file a wrongful death lawsuit. Contact The Law Offices of John M. McCabe today for a free, no-obligation consultation to discuss your case and explore your legal options.

Our personal injury lawyers are dedicated to helping families throughout North Carolina, including Raleigh, Durham, Chapel Hill, Cary, and surrounding communities. We work on a contingency fee basis, which means you pay nothing unless we recover compensation for you.