Can I Sue For The Wrongful Death Of A Child In North Carolina?
Key Highlights:
- The wrongful death of a child North Carolina is an actionable cause of a wrongful death lawsuit under North Carolina law.Â
- Only the personal representative wrongful death estate has the authority to sue a parent, typically.Â
- The recovery is calculated based on the child’s “present monetary value of the decedent.”Â
- The recovery is insulated from virtually all of the estate’s debts and goes directly to the parents.Â
- The statute of limitations is only two years from the date of death. It is enough to allocate even 1% of the blame to the wrong person to avoid liability.
Can I Sue for the Wrongful Death of a Child in North Carolina?Â
Nothing is more painful than losing a child, and when the child’s death was caused by the negligence of another, feelings of grief are accompanied by those of anger, frustration, and uncertainty. In North Carolina, families can bring a child wrongful death lawsuit where a child dies under such circumstances. Here is a brief overview of who can sue for wrongful death in North Carolina, what can be recovered, and how that process takes place.
Robert Tatum is the principal attorney and owner of the Tatum & Atkinson Law Firm, a veteran-owned firm. Founded in 2006, our firm has more than 65 years of collective experience handling wrongful death of a child cases in North Carolina. If you are looking to file a child wrongful death lawsuit, our team knows how to help your family fight for justice and win!
Wrongful Death According to Law in North Carolina
These are the laws in North Carolina that state the matter.
Statute Behind Wrongful Death
Under N.C.G.S. § 28A-18-2, a North Carolina wrongful death claim is defined as one that results from the wrongful act, omission, or default of any person that would have entitled the minor to sue for damages had he survived. Even where the act amounts to a criminal offense, it does not exclude the right to a wrongful death suit.
Essential Elements in a Wrongful Death Suit
In essence, wrongful death is a negligence claim. The plaintiff must be able to prove that there was a duty on the defendant’s part to exercise reasonable care, which was breached, resulting in the death. In North Carolina, negligence is simply the failure to exercise reasonable care.
Who is Eligible to File
Here are some of the eligibility criteria you need to keep in mind.
The Personal Representative Alone
Under North Carolina law, parents are not eligible to file lawsuits in their name. It can only be filed through the personal representative wrongful death of the estate of the child, either the executor or the administrator appointed by the clerk of the superior court. Typically, the parent will be deemed eligible for such a position.
Whom Does the Money Go To
While the personal representative files the lawsuit, the proceeds from the case will go to those who are entitled to the inheritance as per the Intestate Succession Act in North Carolina. When it comes to children, there are no spouses or children, and hence the money goes to the parents.
Preventable Reasons for the Death of a Child
This tragedy is especially difficult because most of the time, such fatalities can be avoided. According to the Centers for Disease Control and Prevention, unintentional injury is the number one reason why American children die, and in the age group 1 to 4 years, children die from drowning more than from anything else. The most common reasons for injury leading to the death of a child are:Â
- Vehicle Accidents
- Bicycle or Pedestrian Accidents
- Drownings
- Unsafe products
- Negligent childcare, andÂ
- Medical malpractice
Establishing Negligence and Liability
Here’s what you need to establish negligence and liability.
The Proof That Establishes Liability
It is up to us to prove liability in a child wrongful death lawsuit. The proof will include the documentation left in the wake of an accident; for instance, the police report, photographs of the scene, the video, witness statements, and possibly product records, inspection documents, or facility documentation if needed.
Medical Evidence and Expert Evidence
The autopsy plus medical records establish the cause of death. Expert testimony (including reconstruction, etc.) establishes the connection between the defendant’s conduct and the death. This establishes the answer to the inevitable defense question: Are you sure this was the cause of death?
Why a Timely Investigation Is Essential
The combination of a tight statute of limitations in North Carolina and the fact that some types of evidence deteriorate quickly (for example, video can be overwritten, paperwork lost, memory dulled) makes timely investigation essential.
Types of Damages Permitted Under North Carolina Law
Here are the different types of damages that are permitted under the NC law.
The Current Value of a Minor
Because the minor did not have any earnings, the damages are not limited to dollar amounts or cents in North Carolina. Parents can claim the present monetary value of the decedent by being entitled to all that the minor has to offer the family (society), which includes the companionship, comfort, guidance, good services, and advice of that minor, plus any net income or services provided by that minor.
Expenses, Pain, and Suffering of the Child
Also included in the claim for damages are funeral and burial expenses, medical and hospital expenses incurred by reason of the injury causing the death, and compensation for the conscious pain and suffering that the minor went through before his/her death a type of damage recognized in North Carolina.
Punitive Damages
Where death is due to malice or willful or wanton conduct, for example, a drunken driver or recklessness, North Carolina permits punitive damages under Chapter 1D of its laws.
Distribution of the Recovery
The state of North Carolina views the recovery in a wrongful death of a child North Carolina lawsuit differently from other assets in the estate.Â
As provided by N.C.G.S. § 28A-18-2, the recovery is usually not considered part of the estate and therefore not subject to collection by creditors of the child. Exceptions exist only for expenses of funeral services and hospital or medical expenses resulting from the fatal injury.Â
After the cost of the action and those expenses are deducted, the remaining amount goes to the family according to the Intestate Succession Act, in most cases, to the parents of the child.
Deadlines, One Percent and Other Difficulties
According to N.C.G.S. § 1-53, the statute of limitations for filing a North Carolina wrongful death claim is two years. This is shorter than the three-year statute of limitations applicable to most personal injury claims.Â
Therefore, if you do not file your wrongful death claim within two years after the date of death, you will lose the right to pursue the claim regardless of any merit it may have.
Contributory Negligence in North Carolina
North Carolina operates a pure rule of contributory negligence; the defense can prove contributory negligence and thereby bar recovery for the plaintiff. There is a critical exception here: the child who is less than seven years old cannot be negligent in any way, while other children are assessed according to their age, not the adult’s.
Going Through Grief Along With Litigation
Being involved in litigation during one of the most difficult times in one’s life is another challenge. A significant share of responsibilities that lawyers should perform during such litigation is to take care of all these things on behalf of the family.
How Does an Attorney Assist in Helping a Family?
In every instance of a child wrongful death lawsuit, it’s impossible to reverse the effects of the wrongfully taken life. What an NC wrongful death attorney can do in this scenario is take on all the legal responsibility of the grieving family.Â
They would perform the following functions in their effort to help the family receive compensation for the wrongful death:Â
- Appointing a Personal Representative
- Conducting an Investigation
- Preserving the Evidence
- Providing a Fair Value for the Irreplaceable
- Protecting the Family from the Insurance Company.Â
These tasks require diligence, yet also require a great amount of sensitivity and care. The Heavy Hitters take these claims very seriously, and as such, they want to provide all of their available resources to these cases as they warrant our attention.
North Carolina Parents, If Your Child Was Lost Due to Another’s Negligence? Chat with Tatum & Atkinson!
You can’t prepare yourself for the grief of losing a loved one, and you can put off legal issues until you have the strength to deal with them. Talking to us is also free and not binding; there’s no obligation for you to proceed after this free consultation. Tatum & Atkinson have been helping families in North Carolina deal with their loss since 2006 out of our office located at 702 Glenwood Avenue in Raleigh and throughout North Carolina.Â
Our Heavy Hitters, your trusted NC wrongful death attorney team, are very familiar with the wrongful death of a child North Carolina, the wrongful death statute in North Carolina, the two-year statute of limitations on filing claims in North Carolina, and the 1% rule that can be applied to a family if multiple families are claiming the same loved one under the wrongful death statute.Â
Contact us today at (800) 529-0804 for a free initial consultation. We do not charge upfront fees; we will only charge you a fee if we successfully recover money for you. Because there is a two-year statute of limitations in North Carolina, you must contact us immediately.
Frequently Asked Questions!
If my child had no income, would a claim even be worth pursuing?
Yes. North Carolina uses the concept of the present monetary value of the decedent, which means the loss of a companion, guidance, and social value, not the salary. The law considers it a loss to be compensated.
Who receives the money if the parents are divorced or separated?
The compensation is paid according to North Carolina’s Intestate Succession Act and usually goes to the parents. Disagreement on how the money is divided can occur, and a lawyer can ensure this does not happen.
How much does it cost to hire a wrongful death lawyer?
No money up front. An NC wrongful death attorney works on contingency: no recovery, no fee, and the initial consultation is free.
How long do we have to file in North Carolina?
Two years after the child’s death. The time limit may be less than you think, so it is better to consult an attorney sooner rather than later.
Will the case go to trial?
Child wrongful death lawsuit claims can be settled, but if there is a denial of fault or a low assessment of the value of the loss, being ready to go to trial is usually what achieves a just outcome.
