What is a wrongful death claim under New Jersey law?
In New Jersey, a wrongful death occurs when someone dies because of the wrongful actions or inactions of another person. Those wrongful actions may have been intentional or as the result of negligent or reckless conduct.
New Jersey allows for two different types of claims to be brought when someone dies as the result of the negligence, recklessness, or other wrongful conduct of someone else. They are known as wrongful death claims and a survival claims. These claims are typically filed together in one lawsuit.
What is the difference between a wrongful death claim and a survival claim?
New Jersey’s Wrongful Death allows the survivor dependents of the decedent to recover financial compensation for the monetary losses they suffer because of a decedent’s death.
A wrongful death claim in New Jersey is governed by New Jersey’s Wrongful Death Act, N.J.S.A. § 2A:31-1 – et seq. That Act allows the survivors of the decedent (the person who died) to recover money as economic compensation for the financial losses they suffer because someone else’s wrongful conduct resulted in the decedent’s death. Smith v. Whitaker, 160 N.J. 221, 231 (1999). The Act allows for “fair and just” damages to be paid for “the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent.” N.J.S.A. § 2A:31-5.
The monetary recoveries for wrongful death claims are intended to provide compensation to the decedent’s survivors for the financial losses they suffer because of the person’s death. Smith v. Whitaker, 160 N.J. at 231; and, in cases where the decedent had dependents at the time of his death, the wrongful death proceeds are to be distributed to the intestate beneficiaries of the decedent who were dependents at that time, to the exclusion of any other intestate beneficiaries. N.J.S.A. § 2A:31-4; Wolff v. Mercer Med. Ctr., 220 N.J. Super. 360, 364, 532 (App. Div. 1987).
New Jersey’s Survivor’s Act provides for compensation to a decedent’s estate for the injuries and damages sustained by the decedent.
Survival claims are governed by New Jersey’s Survivor’s Act, N.J.S.A. § 2A:15-3. “Unlike a wrongful death action, which is a derivative action arising in favor of beneficiaries named under that act, the Survivor’s Act preserves to the decedent’s estate any personal cause of action that decedent would have had if he or she had survived. Smith v. Whitaker, 160 N.J. at 233. As such, the Survivor’s Act “preserves to the decedent’s estate any personal cause of action that decedent would have had if he or she had survived.” Id.
The Survivor’s Act allows the executor or administrator of a decedent’s estate to “recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.” N.J.S.A. § 2A:15-3. Under the law, a deceased’s estate can pursue compensation for the following types of losses suffered by the deceased before he or she died:
· Pain and suffering,
· Medical expenses,
· Lost wages, and
· Reasonable funeral and burial expenses,
If damages are recovered in a survival action, they are given to the deceased’s estate. It is important to note creditors can come after the estate for payment of a debt.
What types of circumstances result in wrongful death and survival claims in New Jersey?
A variety of circumstances can result in a wrongful death and survival claims. Those circumstances include:
· Boating accidents
· Car accidents
· Construction accidents
· Criminal conduct
· Home health aide negligence
· Medical malpractice
· Motorcycle accidents
· Slip and fall accidents
· Truck accidents, and
· Others.
Responsibility for a wrongful death must be assessed on a case-by-case basis. For example, if a drunk driver caused a fatal accident, that driver may be held liable for driving drunk as well as the bar that overserved the driver if the driver was served while visibly intoxicated. Having a knowledgeable team of attorneys reviewing the case can help maximize the monetary recovery ultimately obtained.
Who can file a wrongful death lawsuit in New Jersey?
In New Jersey, wrongful death claims may only be filed by the executor or administrator of the decedent’s will or estate. If the victim did not have a will, the representative of the estate must be appointed by the court.
A wrongful death lawsuit is filed on behalf of family members who were dependent on the deceased at the time of his or her death. This may include:
· A surviving spouse,
· Surviving children,
· Surviving parent(s),
· Surviving grandchildren,
· Surviving siblings, and
· Surviving nieces or nephews.
If a non-relative was financially dependent on the decedent, this person may also be eligible to receive monetary compensation for their loss.
How much are wrongful death and survival claims worth in New Jersey?
Every case is different, so it is impossible to put a specific value on a wrongful death or survival claim without knowing the facts and reviewing the evidence. However, there are certain factors to consider when evaluating a claim. Those factors include, whether or not it is clear who is responsible for the death, what insurance coverage and ability to pay the responsible party or parties have, and the types of damages that were sustained. It is also important to remember that compensation may be recovered for both a wrongful death claim and a survival claim.
Through a wrongful death claim, surviving family members may be entitled to receive compensation for the financial loss they have sustained as a result of the passing of their loved one. Those losses can include:
Loss of the financial support they would have received from deceased if he or she had not been killed,
Loss of care, guidance, and companionship from the decedent;
Loss of household services such as cleaning, childcare, and other household services; and
Medical, funeral, and burial expenses that were caused by the wrongful death.
In New Jersey, surviving family members are not entitled to recover damages for emotional distress on the basis of having lost loved one. However, they may be entitled to compensation for emotional distress if they were present and observed the accident or attack that caused the fatal injury. New Jersey does not allow punitive damages to be awarded for wrongful death claims.
Under a survival claim, the decedent’s estate may recover compensation for pain and suffering, medical expenses, lost wages, funeral and burial expenses, as well as punitive damages in some cases. That compensation recovered for a survival claim belong to the decedent’s estate and pass to the decedent’s beneficiary in accordance with the decedent's last will and testament or the laws of intestacy if the decedent had no will.
How long do you have to file a wrongful death or survival lawsuit in New Jersey?
New Jersey’s statute of limitations for wrongful death and survival claims is two years from the person’s death. In some cases, this period of time can be tolled or extended when it was not known and that a death was caused by the negligence or wrongful act of another. However, the two-year time period would then begin based upon when it was known, or it reasonably should have become known, that the death was caused by negligence or other wrongful act. Unfortunately, the burden of proving that a person did not know and should not have reasonably known that there was a basis to file a lawsuit rests on the person filing the action and it can be difficult to prove that the statute of limitations should be tolled. As such, it is important to retain legal counsel as soon as possible.
Contact an experienced and knowledgeable attorney who can assist in recovering monetary compensation for the wrongful death of a loved one.
To maximize the recovery in a wrongful death lawsuit, it is crucial to hire an experienced and skilled attorney specializing in wrongful death cases. This attorney should have the resources needed to thoroughly examine the situation, gather evidence, determine liability, consult medical professionals, interview witnesses, and methodically construct your case.
The seasoned legal professionals at Kemeny, Ramp & Renaud, LLC are equipped to help you pursue the rightful compensation for the loss of your loved one due to wrongful death. Our attorneys provide free consultations for wrongful death cases. Call us at (732) 853-1725 to schedule a consultation.
Kemeny, Ramp & Renaud, LLC is committed to pursuing vigorous, cost-effective strategies designed to secure the best possible results. The trial attorneys at our firm are available to assist you. Call us at (732) 853-1725 to schedule a consultation.
Comments