A wrongful death claim may allow surviving family members to receive compensation after losing a loved one. There are several elements that are important to make a claim successful and get fair compensation. Our wrongful death lawyers explain four important elements of a wrongful death lawsuit below:
1. A Wrongful Act, Neglect or Default
A wrongful death claim is the result of a wrongful act that results in the death of the victim. To have a wrongful death claim, another person or party must have legal liability for the death because of their actions or neglect. (South Carolina Code § 15-51-10) The legal standards for fault are the same as they would be if the individual had not suffered a fatal injury.
Some legal grounds for a wrongful death claim include:
- Fault for a car accident, motorcycle crash or other traffic accident
- Dog bite, animal attacks
- Product liability
- Premises liability, negligent security
- Transportation accidents, railroad, train and airplane crashes
- Construction accidents
- Workplace accidents and illnesses
- Dangerous drugs, overdoses due to bad prescriptions
- Toxic chemical exposure, poisoning
- Intentional assault and battery, homicide
Our wrongful death lawyers at the Bringardner Injury Law Firm can help you determine if you have a valid wrongful claim. We can investigate and evaluate your case. Contact us to learn more and receive a personalized consultation.
2. Comparative Negligence
Liability for wrongful death is based on the same legal standards that would have entitled the party to maintain a personal injury action if death had not ensued. (S.C. Code § 15-51-10) For that reason, comparative negligence rules apply in wrongful death claims. (S.C. Code § 15-38-15) In an action to recover damages from wrongful death, the victim’s own negligence may reduce the amount of the award. The jury or court decides the amount of damages and determines the percentage of fault of each party, including the plaintiff.
Our experienced wrongful death lawyers can customize a legal strategy, determine how to best proceed with your case and evaluate who to name as a defendant as you pursue fair compensation for a wrongful death claim. As part of your legal strategy, we can help you respond to allegations of comparative negligence.
3. Court Approval
South Carolina law requires court approval of wrongful death settlements. (S.C. Code § 15-51-41) A probate court, circuit court or U.S. District Court may approve the settlement.
The representative is the party with authority to agree to the settlement. They petition the court seeking approval. If there is no legal action pending, or if a settlement is reached before trial, the petition for wrongful death settlement must contain:
- Basic facts of how the death occurred
- How or why the defendant is legally liable
- Insurance, if any, that is paying damages
- Terms of the settlement
- Who the statutory beneficiaries are, heirs, devisees of the estate, creditors, and the amounts of their claims
- Attorney fees and costs
- Certificate from counsel that the settlement is fair, reasonable and in the best interests of beneficiaries
The court must schedule a hearing to decide whether to approve or disapprove of the settlement. Once settled, the personal representative may execute documents and finalize the settlement. (§ 15-51-42(B)-(C))
If a wrongful death action has reached trial or post-trial proceedings before reaching a settlement, a hearing is held in lieu of a petition. The parties present the information on the record, and the court may approve the settlement if they believe that it is fair, reasonable and in the best interests of statutory beneficiaries. (§ 15-51-42(C)(2)).
4. Division of Award to Survivors
A critical element of any wrongful death claim is how to apportion the award between survivors. South Carolina Code § 15-51-20 lists the beneficiaries of a wrongful death action. Even though the executor or administrator brings the case, it is brought for the benefit of certain family members. Who receives compensation and in what amounts depends on which family members survive the victim.
- Spouse only – the spouse receives the entire amount
- Spouse and children – spouse receives half, children receive half
- If no spouse or children, then parents
- If no spouse, children or parents, then any other heirs
A parents’ share may be limited if they did not reasonably support the victim or provide for their needs while the victim was a minor. (S.C. Code § 15-51-40)
S.C. Code § 15-51-40 explains how the funds recovered are divided among the family members who are entitled to receive compensation. The funds are split as they would have been if the victim died without a will. Where there is a surviving spouse and children, the spouse receives half and the children split the other half. If there are no children, the spouse receives the entire amount. (S.C. Code § 62-2-101-103).
If the victim left a valid will, the terms of the will still apply to their personal estate. However, the intestate distribution rules apply to the proceeds of the wrongful death claim.
Wrongful Death Lawyers in South Carolina
There are many important elements in any wrongful death claim. Understanding these elements and approaching them in the right way is important to receiving the compensation that you deserve.
Our wrongful death lawyers in South Carolina understand the complex issues that are involved in your claim. We can help you investigate and customize a plan to pursue your case including all of the important elements necessary for success. As part of our contingency fee agreements, rest assured there are never any legal fees or costs unless we recover for you. Contact us today for a consultation about your case.