How Do I know if I Qualify For a Wrongful Death Case?
Key Highlights:
- How do I know if I qualify for a wrongful death case? If the death results from the negligence of the other party, then you qualify for a wrongful death case.
- This action can be pursued only by the representative of the estate, not other relatives.
- There are four elements that must be established: the existence of a duty, the breach of that duty, causation, and damages.
- The deadline to file the claim is usually two years after the date of death.
- Not all tragic losses qualify as wrongful death cases under the law.
Conditions in North Carolina for a wrongful death claim are fulfilled if a deceased person succumbs due to any wrongful conduct of another person. While asking yourself, “How do I know if I qualify for a wrongful death case?” you should keep in mind that it does not matter how devastating your loss was; the main point here is whether the death was the result of another person’s misconduct.
At Tatum & Atkinson Law Firm, our experienced North Carolina wrongful death attorneys know the difficulty of this moment for you and will be glad to assist you with meeting all of the necessary legal requirements.
Do not go through this hard time alone. Contact our team at Tatum & Atkinson at (800) 529-0804 now to get a free consultation regarding your potential wrongful death claim.
How Do I Know if I Qualify for a Wrongful Death Case in North Carolina
N.C.G.S. § 28A-18-2 provides that the wrongful death is one resulting from the “wrongful act, neglect, or default” of another individual or corporation.
To put it simply, one can say that a claim for wrongful death exists when the deceased would have been able to file a case for personal injury had he/she been alive.
The Four Things a Case Must Prove
In order to make the claim, the claimant has to establish the following four elements of the law.
The Duty of Care
There was supposed to be a duty by the other side regarding exercising caution while performing their responsibility. This could include driving carefully, providing a safe place of work, among others. It is hardly ever a problem proving this element.
A Breach of That Duty
It means that the other party did not fulfill the duty of care: speeding, running a red light, violating safety rules, driving carelessly, etc. The breach is the particular act committed by the party that led to the death.
Causation
You must prove that the breach was directly responsible for the death. This is usually the hardest element to prove since the defendant always claims something else was the actual cause.
Damages
There should be quantifiable losses, such as loss of earnings, funeral expenses, and pain and suffering, among others, resulting from the death.
Common Cases Where a Wrongful Death Claim Could Be Filed
Most of the wrongful death lawsuits filed in North Carolina have been based on fatal crashes resulting from.
- Vehicle collisions
- Truck accidents
- Motorbike accidents
- And pedestrian accidents
- As well as cases involving injury at work due to another person’s negligence.
North Carolina laws also recognize cases involving wrongful death due to other reasons, such as medical negligence or defective products. The category matters less in the eyes of the law; the only thing that matters is whether another party’s negligence directly caused the loss of life.
Who Can File a Wrongful Death Claim and Who Cannot in North Carolina
What most people find surprising is that in North Carolina, an individual relative cannot file directly.
This must be done by the representative of the deceased, who acts on behalf of the entire family. In cases where there is no one appointed to the role in the will of the deceased, the court appoints one, either a spouse, parent, or child.
The Deadline That Can End a Case Before It Starts
Normally, North Carolina allows up to two years following the death for filing claims, according to N.C.G.S. § 1-53.
Here’s one exception: when the deceased lived for some time following the accident, the statute of limitations on the personal injury claim can affect the wrongful death suit. Opening the estate is a prerequisite to filing such claims; it is important to start the process as soon as possible. When the statute expires, the case will be lost forever.
Factors That May Lead to Disqualification for a Family
There are times when, after conducting a candid assessment, it is found out that there is no possibility of succeeding, and knowing the reasons would help avoid placing false hopes. Disqualification of a case may be on the following grounds:
- The death occurred due to natural causes or fatal accidents that did not involve negligence on the part of anyone.
- The two-year period of limitation or such other type of limitation has passed.
- There is no evidence that the actions of the other side actually led to the death of the person.
- There are no recoverable losses, or there is no legal personal representative with legal validity.
These factors should not be evaluated by the family alone.
How an Attorney Evaluates Whether You Qualify
What a wrongful death lawyer should do is to evaluate in good faith whether the death can be attributed to someone else’s negligent behavior. To answer this question, the lawyer will have to investigate what has happened based on various sources of information, such as a traffic accident report, medical records, and testimony of witnesses.
Then the wrongful death lawyer determines who may be at fault, identifies the statute of limitations, and provides a candid assessment of the case to the family.
Get the Answers and Justice Your Family Deserves: Connect with Tatum & Atkinson
When asking the question “How do I know if I qualify for a wrongful death case?” you are already at the crossroads and need to look for professional advice immediately. This is completely free and does not put any additional burden on you.
Our firm, Tatum & Atkinson, has been helping the residents of North Carolina since 2006. Season Atkinson, our founding attorney, is on the national board of directors for Mothers Against Drunk Driving and will conduct a thorough investigation of your case, collect all necessary evidence, and give you an honest opinion.
To have a case, you must prove fault, establish the four elements, designate a personal representative, and file within two years.
Contact us at (800) 529-0804 now for a free consultation. We will not charge you a dime if we lose.
FAQs: How Do I Know if I Qualify for a Wrongful Death Case?
We are not sure the death was anyone’s fault. Should we still ask?
Certainly, families cannot determine who is at fault in a situation because the critical information about what happened is hidden from them in the police report, the equipment manufacturer’s logs, and the employer’s safety records.
Does it cost anything to find out if we qualify?
No. Since the case is contingent, an initial appointment is free of charge, and no costs will be incurred until there is a recovery. An initial consultation is not about taking civil actions against anybody; it is merely aimed at letting you know whether you do have a strong enough claim.
What if our loved one was partly at fault?
The contributory negligence law of North Carolina denies you the right to recover damages from the defendant even when he bears just a little fault, which makes it one of the toughest laws in the country. However, when the other driver is grossly negligent, for example, when they were drunk, then contributory negligence is not applicable as a defense.
Can we file if there was a criminal case, or none at all?
Yes. Wrongful death claims refer to civil matters, so they are separate from the criminal trial. Lack of a criminal conviction does not prevent the filing of a lawsuit.
What if the death happened a while after the accident?
Two years are usually counted from the date of death and not from the date of injury. However, if your relative lived for some time after being injured, another deadline for the claim may come into play. Given how tricky this is, you are advised to consult an attorney.
Who keeps the money when a wrongful death case in North Carolina is won?
The will can appoint a personal representative, but cannot tell how the money will be distributed thats the job of the NC law. The money goes to the statutory family members and is protected from the creditors of the estate. The personal representative makes the claim, but is not given any preference just because he or she was the personal representative.
