Can I Sue For The Wrongful Death Of A Child In Virginia?
Key Highlights:
- Can I sue for the wrongful death of a child in Virginia? Yes, under Virginia law, you may bring a wrongful death case after your child has died.
- Your claim must be filed by the estate’s “personal representative,” generally a parent.
- Statutory beneficiaries for a child typically include parents and siblings.
- Damages for a child’s wrongful death are based on the family’s grief, companionship, and loss of the child and not on lost income.
- Generally, a wrongful death case for a child must be filed within two (2) years from the date of the child’s death.
- Any settlement in a civil case because of a child’s death must be approved by the court.
No family should ever have to suffer the grief of losing a child. Unfortunately, when a child dies due to someone else’s negligence or wrongful actions, the deep sense of loss can be compounded by a multitude of legal issues.
If your child was killed as a result of someone else’s actions, you may be asking: “Can I sue for the wrongful death of a child in Virginia?” The answer is yes; Virginia’s wrongful death laws allow families to pursue damages for their child’s death.
This article from Tatum & Atkinson Law Firm outlines the eligibility requirements for filing a child wrongful death lawsuit, the types of damages you may receive if you win, and how the legal process works at a time when everything else can seem confusing.
If you are facing this devastating loss, contact us today at (800) 529-0804 to set up a free and confidential consultation with one of our experienced lawyers.
Can I Sue For the Wrongful Death of a Child in Virginia?
In Virginia, a wrongful death is the result of another person’s wrongful act, negligence, or failure to act, as defined by Virginia Code § 8.01-50. This is essentially the same situation that would have given a surviving child the right to bring a personal injury lawsuit against the responsible party had he or she survived. So, in easy words, if someone could have been sued for hurting your child, they can be held responsible if the harm proves fatal.
The Elements a Family Must Prove
To support a wrongful death lawsuit, you must prove:
- A duty of reasonable care was owed to the child by the party whom you claim to be liable.
- The party failed to meet that standard of care
- This failure caused the child’s death
- The family suffered legally compensable damages (such as sorrow, mental anguish, and loss of companionship) as a result of the death
Who Can File the Claim
Virginia’s laws on wrongful death suits involving a child have a special legal procedure that makes sure that the person designated to file the case is different from the family who is entitled to compensation from this wrongful death action.
The Personal Representative Wrongful Death
In Virginia, a beneficiary cannot sue directly for wrongful death; rather, it must be done through the personal representative of the child’s estate, typically the court-appointed parent of the deceased minor. If the child was in one parent’s custody, that parent will have first priority to serve.
The Statutory Beneficiaries Wrongful Death
The personal representative will file suit, but the actual persons entitled to recover are the statutory beneficiaries as defined in Virginia Code § 8.01-53. In the typical case, the statutory beneficiaries of a child who has died are the child’s parents and siblings.
Common Causes of Wrongful Death of a Child Virginia
What makes these losses unbearable is knowing they could have been prevented. Children in America (ages 0-14) are dying from unintentional injuries at a higher rate than any other age group, according to Centers for Disease Control and Prevention statistics, and drowning is the 2nd leading cause of death in children ages 0-14, after motor vehicle accidents.
Accidents resulting in the death of a child generally occur as follows:
- Motor Vehicle Crash
- Drowning
- Pedestrian or Bicycle Accident
- Unsafe or Defective Product
- Unsafe Premises or Lack of Supervision
- Medical Negligence
Proving Liability and the Evidence It Takes
Securing victory takes establishing an unshakeable foundation of factual evidence from the scene of events, reinforcing it with reliable reports from professionals in relevant fields, and taking action promptly before all significant evidence is lost or destroyed.
Building the Investigation
Liability forms the basis for each claim and is derived from evidence such as the scene itself, police or incident reports, photographs, video footage (including surveillance), and any other relevant evidence. And depending on the cause, information can be gathered from product, inspection or maintenance records.
Medical and Expert Proof
The medical records and autopsies establish the cause of death, while reconstruction or other qualified expert(s) connect the responsible party’s conduct to the death. This is what answers the defense’s inevitable question, “Are you sure this is what caused it?”
Why Acting Early Matters
Evidence deteriorates. For example, tire treads (skid marks) wash away; videos can be overwritten (deleted) after weeks, and memories can become blurry. Therefore, conducting your investigation and sending legal preservation letters as soon as possible preserves evidence so that it does not disappear.
Damages a Family May Recover
Because most children do not have an income to begin with, emotional loss is generally the primary type of loss for which a claim can be filed. Virginia Code § 8.01-52 allows families to recover damages for suffering, mental distress, and the loss of society & companionship (such as comfort, advice, guidance).
Financial Losses
There are two primary types of economic damages that can be included in any claim. First, there are the actual expenses incurred as a result of the child’s death (i.e., medical/hospital expenses associated with the injury leading to the child’s death and funeral/burial expenses).
Lost Services and Future Support
In some cases, a child may have provided future support or services and thus could be included in the damages recoverable as part of the total value of the claim.
Punitive Damages
Virginia also allows for punitive damages where the defendant acted with malice, willfulness, or gross negligence, such as driving drunk or otherwise recklessly. Under Virginia’s laws, punitive damages are limited to a maximum of $350K.
How a Settlement Is Distributed
The funds do not simply end up in the bank account after the resolution of the claim, but rather go first to the personal representative to pay costs of litigation as well as the costs of death and medical care before the remainder is distributed to statutory heirs under Virginia Code § 8.01-54.
Also, the money will be distributed free from all creditors of the child or of the estate. Because a child is involved in these cases, all settlements require judicial approval pursuant to § 8.01-55 in order to protect the family’s interest.
The Deadline and the Challenges Families Face
Pursuing a case of wrongful death means having to keep track of certain timelines in law, complying with Virginia’s rules regarding liability, and shouldering an emotional burden that may be successfully alleviated through the help of a legal professional.
Two Years to File
In general, in order for a Virginia wrongful death claim to be valid, a lawsuit must be filed within two years of the date of the child’s death (see Virginia Code § 8.01-244). There are limited exceptions to this timeframe, so if you are in this position, you should obtain legal counsel as soon as possible.
Virginia’s 1% Rule
In Virginia, the rule of contributory negligence is very strict; if the defense can prove the child had even 1% responsibility for their own death, you will lose your wrongful death claim. However, children under the age of seven cannot be found to have contributed to their own deaths through negligence at all, while older children will have their age taken into account when analyzing whether they were negligent for their age.
The Emotional Weight
When a death occurs, the family is already very emotionally distraught. The thought of going through a litigation process while also grieving can be overwhelming. Lawyers try to minimize the emotional duress caused by the litigation process, and they do this by providing assistance with legal filings, dealing with the applicable insurer, and meeting deadlines. All of which can be very time-consuming and disruptive to the grieving family.
How an Attorney Helps
No claim can bring back a child, and no parent should ever have to argue over a claim during a period of mourning.
A Virginia wrongful death attorney deals with many of the difficult and complicated issues involved in pursuing a claim, such as finding a personal representative, determining how a wrongful death occurred, providing evidence to support a claim, showing the costs associated with the wrongful death, as well as how much damages suffered.
These actions will allow the family to work on their relationship with each other, while a skilled attorney can handle these difficult things with care, not just diligence. The Heavy Hitters will honor this responsibility for each case.
Compassionate Legal Guidance for Virginia Families After the Loss of a Child
There is no roadmap for dealing with this type of loss. We at Tatum & Atkinson understand this. So when you are ready to answer this question, “Can I sue for the wrongful death of a child in Virginia?” We are here to help you.
Since opening in 2006, the law firm of Tatum & Atkinson’s attorneys have provided legal representation to families in grief. We handle cases in Virginia through attorney Jon Ward at our Cedar Bluff, Virginia, location.
If you are grieving the loss of your child, call us at (800) 529-0804 for a free consultation. There is no fee unless we recover for you.
Frequently Asked Questions!
Do both parents have to file together?
No. One representative, usually a parent, will generally file for statutory beneficiaries. However, both parents share the benefits of settlements from the suit regardless of which one of them files the suit.
What if my child was partly blamed for the accident?
A child who is under 7 years of age cannot be held liable for fault in the accident; however, older children will be judged by what is reasonable for their age.
How much does it cost to bring a wrongful death claim?
Because this is a contingency fee case, there are no fees incurred until the beneficiary receives a settlement. The first consultation is free of charge.
How long do we have to file?
In most circumstances, two years from the date of your child’s death. Due to the effects of time on evidence and a strict deadline for filing, it is important to meet with an attorney before the two-year time period expires.
Will we have to go to court?
Most claims are settled, but if the person responsible for the injury is disputing liability or denying the amount of damages, trial readiness should protect the family’s claim. All wrongful death settlements must be approved by the court.
