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The preventable death of a loved one is an unimaginable loss, and an injustice to the family members of the deceased person. If someone else’s reckless actions caused the death of your loved one, you may be able to bring about a wrongful death claim. Consult with a Denver wrongful death attorney at Fuicelli & Lee during a free consultation for more information. We are available to answer any questions you may have and provide you with support during this challenging time. Call us today at (303) 355-7202.
Types of Wrongful Death Cases
Wrongful deaths can occur under different situations. The circumstances surrounding the death of the deceased person will help determine what type of action the claimants can pursue.
Negligence and Negligence Per Se
In a claim based on negligence or carelessness, the claimant must prove that:
- The defendant owed the deceased a duty of care
- The defendant breached their duty of care to the deceased
- The breach caused the death
In negligence per se, the defendant’s violation of a law or regulation that was enacted to protect a class of persons, including the deceased, is proof of an existing duty of care and breach of that duty.
A product liability action may be appropriate when the cause of injury or death is a defective product. It is presumed that all products are safely manufactured. The manufacturer’s negligence and product defect can be proved by showing that:
- The manufacturer did not conform to existing required standards in the manufacturing of the product; or
- The manufacturer did not comply with existing government codes, standards, and regulations in effect at the time the product was manufactured and sold.
If the product caused injury or death ten years after it was sold to a consumer, then it is presumed that the product was not defective or negligently manufactured.
The burden is on the claimants to prove that the product was defective and the manufacturer was negligent.
A medical malpractice action arises when a physician or other licensed medical professional provides substandard care, which causes the death of a person.
To succeed on the basis of medical malpractice, the claimants must show, through expert testimony, the physician’s duty of care and how the physician breached that duty. Expert testimony can only come from a physician with training and experience in treating the disease or performing the medical procedure that is the subject of the wrongful death claim. Typically expert witnesses must practice the same subspecialty of medicine as the defendant physician.
Time Limits to File a Wrongful Death Claim
The time limit within which to file a wrongful death claim is generally two years. Under certain circumstances, such as death caused by a motor vehicle accident, the time limit is three years. Colorado state law stipulates who can make a claim within that time.
Within the First Year After the Death
The persons who can file a wrongful death claim within the first year are:
- The spouse of the deceased;
- The spouse and the children or heirs of the deceased with the written election of the surviving spouse;
- The children or heirs of the deceased only with the written election of the surviving spouse; or
- If there is no spouse, then by the children or heirs of the deceased, or the deceased’s designated beneficiary who has the right to file a claim.
After the First Year of the Death
The same class of people that can make a claim within the first year can make a claim in the second year after the death. The difference is that in the second year, the spouse and children or the children alone can file a suit without the written election of the spouse.
When Can a Parent Make a Wrongful Death Claim?
Under Colorado’s Wrongful Death Act, a parent can maintain a wrongful death claim only if the deceased had no surviving spouse and no children, and no designated beneficiary. Unlike claims concerning property, wrongful death claims cannot be assigned. For example, a deceased’s child cannot assign their claim to the deceased’s parent. The deceased’s parent cannot legally make a claim when the deceased has a surviving child.
The status of the deceased at the date of their death is what determines who can make a wrongful death claim on their behalf. For example, if the deceased person was a married adult without children, and their spouse dies before a wrongful death suit is filed, the parents of the deceased cannot file a claim. To ensure that the family of the deceased gets the justice they deserve, It is important that they act quickly and consult with a wrongful death attorney as soon as possible. The law makes no exceptions for such unfortunate circumstances.
What if the Parents Are Divorced or Separated?
Generally, both parents have an equal interest in any judgment received from a wrongful death suit. However, where the parents are no longer together and are either divorced, separated, or living apart, the court may have to conduct further proceedings to determine how to fairly apportion any judgment sum between the two parents.
In order to divide any judgment sum awarded in a wrongful death suit between divorced or separated parents, the court will consider a the following factors:
- Each parent’s relationship with the deceased;
- Each parent’s parental responsibility for the deceased; and
- Any other factors that the court deems necessary to make a fair and equitable decision.
Types of Damages
The types of damages recoverable for a wrongful death will depend on the circumstances of the case.
Economic damages represent monetary losses whose value is determined by available evidence including invoices, bills, quotations, etc. Funeral costs, medical bills, and property damage would fall under economic damages.
Non-economic damages represent non-monetary losses whose value will usually be determined by economics experts. Non-economic losses include pain and suffering, grief, emotional stress, and loss of companionship.
In Colorado, non-economic damages are capped at $500,000. If the death was caused by a felonious killing, there is no limitation on the amount recoverable for non-economic damages. A felonious killing is defined as any killing that constitutes the crime of murder or manslaughter.
Exemplary damages are additional damages that may be awarded when a person’s death is the result of fraud, malice, or willful and wanton conduct. A person’s actions will be considered willful and wanton if the person realized that what they were doing was dangerous but still chose to go act in a way that caused harm.
Exemplary damages cannot exceed the actual damages awarded to the claimants.
Contact the Denver Wrongful Death Attorneys at Fuicelli & Lee Today
If have lost a loved one to a preventable death, contact the Denver wrongful death attorneys at Fuicelli & Lee We understand that this is one of the most difficult times in your life, and we are here to stand by you and provide any relief we can. Contact us today for more information on how we can help.