Protecting The Rights Of Families Filing Fatal Accident Claims
Have you lost loved one in an accident caused by someone else’s negligence? Is your family facing immediate and long-term financial concerns? You do not have to go through this difficult time on your own. An experienced lawyer can help you file a wrongful death claim, so you can protect your family and hold the guilty party accountable.
At Nicolet Law Accident & Injury Lawyers, our attorneys are dedicated to protecting the rights of families that have lost loved ones in accidents. A lot of unexpected challenges come with losing a loved one, and our attorneys will help you understand your rights and options as we fight for the compensation you deserve. We take the time to answer all of your question, and to make the legal process as stress-free as possible for you during this difficult time.
- Protecting The Rights Of Families Filing Fatal Accident Claims
- Putting Your Life Back Together
- Wrongful Death Law in Wisconsin
- Wrongful Death vs. a Survival Action in Wisconsin
- Common Causes of Wrongful Death Lawsuits
- Who Can You Pursue For Wrongful Death Compensation?
- Who Can File a Wrongful Death Lawsuit in Wisconsin?
- Proving Wrongful Death
- Statute of Limitations
- Wisconsin Wrongful Death FAQs
- Contact a Wisconsin Wrongful Death Lawyer To Hold Accountable For Your Loved One's Death
Putting Your Life Back Together
In Wisconsin and Minnesota, you can receive compensation for damages after an accidental death, but the damages are controlled and can be limited. We have successfully protected the rights of families filing wrongful death claims. Working with financial experts, we will conduct an investigation into the fatal accident and an occupational evaluation to understand the full financial impact of your loss.
In addition to your family’s financial losses, if your loved one had pain and suffering before death, we can pursue compensation for that as well.
A wide range of accidents can result in fatal injuries. With extensive personal injury experience, our firm is prepared to handle wrongful death claims involving many kinds of accidents, including:
- Car accidents
- Semi-truck accidents
- Motorcycle accidents
It is always heartbreaking to lose a loved one. Losing someone due to the negligent, reckless, or intentional conduct of another is even worse.
Death always feels wrong, but in certain circumstances, you may have a case for a wrongful death claim.
At one point in time the legal system did not permit wrongful death claims. Under common law, a deceased person was the victim but was not able to bring a lawsuit. Since there was no victim to bring the claim, there was no case because the claim died with the decedent.
Eventually, the judicial system recognized that these deaths affect the victim’s loved ones. Therefore, the law began to allow families to file wrongful death claims to obtain compensation for their loss.
According to the CDC, there were 173,040 unintentional deaths in 2018. Each of these deaths leaves the family suffering because of the loss. If the decedent was the primary financial support for the family, they might consider filing a wrongful death lawsuit against the person or entity responsible for the death.
Wrongful Death Law in Wisconsin
Wrongful death lawsuits are a part of civil law, and each state has different laws concerning wrongful death claims. According to Wisconsin law, wrongful death is caused by another party’s “wrongful act, neglect or default.”
Wrongful death law applies to situations in which the deceased could have filed a personal injury lawsuit if they had survived. Of course, the deceased person cannot file a personal injury claim, but specific other people can.
Wrongful Death vs. a Survival Action in Wisconsin
People often confuse wrongful death with a survival action. In a wrongful death action, the plaintiff is seeking compensation on behalf of close family members of the deceased. However, a survival action arises from the suffering of the decedent rather than the grief and financial losses of the family.
The decedent’s estate may recover damages resulting from the pain and suffering of the victim, as well as their medical expenses and lost wages. It focuses on the injury suffered by the deceased person, analogous to what the person could have recovered in a personal injury lawsuit if he or she had survived.
A critical difference between the two claims is that in a survival claim, damages are paid to the deceased person’s estate rather than directly paid to surviving family members.
Common Causes of Wrongful Death Lawsuits
As with other types of personal injury cases, many types of events or actions can lead to a wrongful death lawsuit, including:
1. Motor Vehicle Accidents
Data from the National Safety Council shows that an estimated 42,060 people died in motor vehicle crashes in 2020. That reflects an 8 percent increase over 2019, which is shocking considering that many people drove less due to the pandemic. Motor vehicle accidents often cause catastrophic brain, spinal, and internal organ damage that leads to death.
2. Premises liability
Property owners, residents, and tenants of property (both residential and commercial) owe a duty to keep their property in a safe condition. When they fail to correct hazardous conditions or to warn visitors of dangers adequately, they may be liable for accidents and injuries that occur on their property. Premises liability often causes tragic deaths, such as animal attacks, children drowning in swimming pools, and individuals injured in unsecured construction sites.
3. Drowning or Boating Accidents
Most people love swimming, boating, or other water sports. However, any body of water, whether it is a swimming pool, a lake, or an ocean, can be a risk. The water is especially hazardous for those who do not know how to swim, do not understand the dangers of currents or extremely cold water.
In many cases, people trust their safety to others, such as the person operating the boat. A person who is responsible for the safety of others and is negligent may be liable.
4. Workplace Accidents
Worksites are often dangerous places. Construction workers labor at great heights or operate large and dangerous tools and equipment. Nurses and even office workers may suffer injuries from heavy lifting, long-term toxic exposures, repetitive stress injuries, and burns.
According to the Bureau of Labor Statistics’ Employer-Related Workplace Injuries and Illnesses News Release, published on November 4, 2020, there were 2.8 injuries per 100 full-time workers. Workers’ compensation may cover workers and their families in the case of a workplace fatality.
Who Can You Pursue For Wrongful Death Compensation?
Any person or entity (including a government entity) that caused someone’s death due to negligence or an intentional act may be liable for wrongful death. In some cases, there may be more than one person or entity responsible.
However, frequently there is more than one person or entity liable for the wrongful death.
For example, if the fatality resulted from a motor vehicle accident, responsible parties may include:
- Negligent drivers involved in car accidents
- The car or truck manufacturers whose defective product caused a mechanical failure which led to a fatal accident
- Government entities whose poorly designed, constructed, or maintained roads cause fatal accidents.
- The trucking company that is responsible for hiring and training the drivers
- The truck owner or maintenance company responsible for keeping the truck in safe operating condition
- Those responsible for safely loading cargo
Fatalities happen in many places and under all kinds of circumstances. Other possible responsible parties may include hospitals, nursing homes, daycare businesses or childcare workers, manufacturers, or distributors. In the case of an airplane crash, the pilot or airline may have been negligent, the plane may have malfunctioned, there may have been a defective component, or unsafe airport conditions may have caused the death.
Who Can File a Wrongful Death Lawsuit in Wisconsin?
Wrongful death claims can be confusing because the person who files the claim may not necessarily be the same person or people who benefit from the lawsuit. According to the Wisconsin State Legislature: “An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.”
A personal representative (sometimes called an executor) is the individual responsible for administering the decedent’s estate. It may be someone named in the decedent’s will or appointed by the probate court. It may be a family member or someone not related to the deceased.
Also, certain surviving family members can file a wrongful death claim. They are:
- The deceased’s spouse or domestic partner
- The deceased’s children or grandchildren
- The deceased’s parents
- The deceased’s grandparents, and
- The deceased’s siblings.
Regardless of who files the wrongful death claim, if the deceased person left a spouse or domestic partner and one or more minor children, the court must set aside a portion of any damages awarded for the care of the children. The court determines the amount of the portion to be set aside.
It bases this decision on many factors, including:
- The age of such children,
- The amount involved,
- The capacity and integrity of the surviving spouse, and
- Any other facts or information it may have or receive.
However, the amount cannot be more than 50 percent of the total damages award.
Proving Wrongful Death
Most wrongful death actions are based on negligence, which means “A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”
Negligence usually consists of actions, such as driving under the influence of alcohol or drugs, but it can also mean an omission as long as there is a duty of care. For example, a property owner who fails to repair or warn of a dangerous condition may be negligent.
Wrongful death claims must be supported by proof. A burden of proof is the amount of evidence you must present in support of your wrongful death claim. Every case is unique, but the burden of proof is on the person who files the lawsuit (the plaintiff.)
The burden of proof in a wrongful death case is different from the burden of proof in a criminal case. In civil court, the burden of proof for a wrongful death claim is the preponderance of the evidence, which means proving to the judge or jury that there is a 50 percent or greater chance that the defendant caused the injury alleged in the lawsuit.
For example, to meet this burden of proof in a case based on negligence, the plaintiff must show the same basic elements as those in a personal injury lawsuit:
- The person or entity responsible was negligent
- The negligence directly caused the death
- The death harmed surviving family members
Even in cases where fault seems to be obvious, proving negligence requires evidence, such as:
- Eyewitness statements
- Reports from law enforcement officers
- Photos, videos, or other physical evidence from the accident scene
- Medical records
- Expert testimony
- Any other evidence, including truck driver’s logs, maintenance logs, or an Event Data Recorder (EDR) that records data about a truck’s operation immediately before, during, and after a crash.
Not all wrongful death cases are the result of negligence. Some arise from acts of intentional violence.
The elements to prove an intentional act are specific:
- The person had the intent to commit the act;
- The person made non-consensual contact with the victim, such as using a weapon or hitting someone with a car; and
- The contact caused the death.
Another important part of the proof is establishing the value of your losses. Proof of damages is essential because the insurance company will be doing everything possible to minimize or deny the amount of your claim.
Evidence of losses may include:
- Medical bills
- Funeral expenses
- Employment records
- Tax returns & other financial statements
- Personal testimony and physical evidence
When a wrongful death has occurred, the surviving family members need and deserve compensation, also known as damages. The person who brings the action, whether personal representative or family member, may recover the reasonable cost of medical expenses and funeral expenses, either on their own behalf or on behalf of any person who has paid or assumed liability for such expenses.
Pecuniary damages in a wrongful death lawsuit may include compensation for:
- Medical bills
- Lost financial contributions and/or inheritance
- Funeral/burial expenses
The decedent’s spouse, children, parents, or siblings who were minors at the time of the death may receive damages for loss of companionship and society. In Wisconsin, certain limits exist on noneconomic damages, such as emotional pain and suffering or loss of society and companionship. These damages cannot exceed $500,000 in the death of minors and $350,000 in the death of adults.
Statute of Limitations
Like all states, Wisconsin has strict deadlines for filing lawsuits, called statutes of limitations. If you miss the deadline, you may be barred from filing a lawsuit. Therefore, it is vitally important to consult an attorney as soon as possible so that you do not miss the correct deadline for your claim.
The wrongful death of a loved one is emotionally devastating and may leave you facing an uncertain financial future. If you are grieving the loss of a loved one, you are probably facing many personal and economic challenges, but you are not alone. Your attorney can explain your legal options, protect your rights and guide you through the legal process.
Wisconsin Wrongful Death FAQs
Losing a loved one is a gut-wrenching experience. When you learn another person’s negligence may have caused your loved one’s death, your pain may intensify. While we understand that money cannot ever make up for your loss, filing a wrongful death lawsuit may help your family maintain a solid financial footing during your time of grief.
How can we determine if you have a wrongful death case?
There is a simple measure of one’s ability to hold someone accountable for the death of a loved one. If your loved one had survived and would have filed a personal injury lawsuit, then chances are there is a basis for a wrongful death case.
Is it necessary for a person to have filed a personal injury lawsuit before their death before we can file a wrongful death case?
No, this is not necessary. If a decedent did live long enough to file a personal injury lawsuit, the claim would survive their death and convert from a personal injury suit to a wrongful death suit. If you don't know the status of the case, talking to us may clarify matters.
Does filing a wrongful death lawsuit mean the responsible party will face criminal charges?
Not necessarily. Prosecutors who work in conjunction with law enforcement determine whether to bring criminal charges. In some cases, the prosecutors may decide to bring criminal charges against the person responsible for the injuries that led to the death of your loved one. Whether or not prosecutors bring criminal charges, you may still be able to file a wrongful death lawsuit in Wisconsin.
What happens if the responsible party is not held criminally liable? Can I still file a wrongful death case?
Yes, you can still file a wrongful death lawsuit if the other party is not held criminally liable. Wrongful death lawsuits are civil remedies. Even if the other party is not prosecuted or found guilty, they may still be held accountable financially through civil remedies. Remember, the law requires a different level of proof in a civil case versus a criminal case. If you are unsure about whether you can file a case, you should consider speaking with a Wisconsin wrongful death attorney for additional information.
I understand the estate’s executor must file a wrongful death lawsuit on behalf of the heirs. What if the heirs disagree about whether to file a wrongful death lawsuit?
There are specific procedures regarding who must handle a wrongful death case. Speaking with an attorney with legal knowledge of wrongful death cases may help you understand how to best proceed in cases like this. The wrongful death statutes in Wisconsin can be very complicated. An attorney could help explain your rights and the limitations of wrongful death lawsuits.
What proof is necessary to establish that another party is responsible for my loved one’s death?
As with any lawsuit, courts require proof to bring a wrongful death case. Wrongful death cases require the same proof as personal injury lawsuits.
To prove up a wrongful death case, you must establish:
- The other party acted negligently.
- The other party’s negligence resulted in your loved one’s death.
- The decedent’s family suffered a loss due to the death.
Who is responsible when I lose a loved one in a roadway accident?
Without seeing reports and talking to potential witnesses, this question is unanswerable. There could be one or more responsible parties. First, you need to figure out how the accident occurred. For example, if your loved one obeyed all traffic signals and a drunk driver hit them, then chances are the drunk driver is responsible.
In other roadway accidents, the circumstances may not be so straightforward. For example, if your loved one lost their life in an accident with a big rig, someone other than the big rig driver (such as the company they drive for) may be partially liable for your loved one’s death.
Taking advantage of a free consultation with a Wisconsin wrongful death lawyer may help you determine which parties are responsible for your loved one’s injuries and death.
Can I file a wrongful death claim if someone dies following a slip and fall accident?
All personal injury claims may be eligible for a wrongful death claim depending on the circumstances surrounding the death.
At Nicolet Law Accident & Injury Lawyers, we can help with wrongful death claims after:
- Slip and fall accidents - If your loved one died in a slip and fall accident due to another party’s negligence, we have the experience to help.
- Roadway accidents - We can handle wrongful death cases for those who lost loved ones to car, truck, motorcycle, bicycle, or pedestrian accidents.
- UTV and snowmobile accidents - We can also handle cases for those who lost loved ones due to UTV (four-wheeler) or snowmobile accidents.
At Nicolet Law Accident & Injury Lawyers, we understand the challenges of pursuing wrongful death claims, and we will do everything possible to help make the claims process less stressful for you and your family.
Can a wrongful death suit in Wisconsin be filed without an attorney?
No. Wrongful death claims are incredibly complicated. Unless you know the rules, understand how courts view wrongful death cases, and understand who can file a suit, you cannot successfully file any lawsuit on your own.
An attorney can help you gather the necessary evidence to build a strong case since they understand the level of proof needed for a lawsuit. An attorney can also help ensure there is a full accounting of the damages that may be at issue in your claim.
What damages can you claim in wrongful death cases?
No two cases are identical. Without completely understanding the specifics of any wrongful death case, we cannot predict a dollar amount.
However, in general, you might recover:
- Medical costs - You may claim entitlement to expenses for medical bills incurred due to the injuries that resulted in the decedent’s death.
- Funeral expenses - You may claim entitlement to funeral expenses, including the cost of a burial lot, funeral preparation expenses, burial costs, and all other costs associated with a funeral.
- Lost Wages - You may be entitled to the wages your loved one would have earned from the time of their injury until their death. Discussing whether to include lost wages in your claim with a wrongful death lawyer can be helpful.
- Pain and suffering - While compensation for pain and suffering is difficult to calculate, you may include pain and suffering from the time of the injury to the time of death. This may still be true even if the decedent was killed immediately upon receiving an injury.
- Loss of companionship - In Wisconsin, family members will face caps imposed by the legislature on claims for loss of companionship. Family members could be entitled to damages of up to $300,000 if the decedent is an adult and up to $500,000 if the decedent is a child.
Remember, a skilled wrongful death attorney in Wisconsin can help you claim the maximum potential compensation when filing a wrongful death claim. Consulting with a Wisconsin attorney will help you get things right the first time.
What if the decedent was not working at the time of their death?
Whether or not your loved one was employed when they died has no bearing on whether or not you can file a wrongful death lawsuit. We have heard people say that they could not file a lawsuit because there were no wages that they could claim, but this is not true. The legislature designed wrongful death claims to hold the person responsible for someone’s death accountable. There is no requirement that the decedent needed to be employed to bring a wrongful death claim.
How difficult is the wrongful death lawsuit process?
When you work with a wrongful death attorney in Wisconsin, the steps you take will follow this basic outline:
- Determine the grounds for the lawsuit - You will work with an attorney to determine which parties are at fault, gather evidence, and calculate potential damages.
- File suit before the statute of limitations runs out - In the case of car accidents, the statute of limitations is two years. In all other cases, it is three years. Remember, gathering evidence takes time, so this can go by quickly.
- File a court complaint - If your case must go to court, your attorney will file a complaint that includes all the specifics necessary to establish your claim. The complaint will also explain the damages you and your family have suffered.
- Notifications - If your case goes to court, the court will issue a summons to the other party advising them of the lawsuit. The other party will need to respond to the complaint by a specified deadline and file their response with the court.
- Responses - The other party’s lawyer may contact your attorney about your court complaint. There may be an offer to negotiate a settlement, or your case may proceed through court.
These are general steps that can occur when filing a wrongful death lawsuit. There may be room to negotiate with the other party and settle outside of court, or there may be reasons why negotiations break down, and you have no choice but to move forward.
Remember, talking to a wrongful death lawyer at Nicolet Law Accident & Injury Lawyers will help you determine how to proceed.
Can a wrongful death lawsuit be filed if someone dies in a workplace accident?
Maybe. In most cases where a loved one loses their life in a workplace accident, there are limited options for surviving families. You may be able to file a wrongful death lawsuit against a third-party, but not against the deceased's employer or co-worker. However, if a third-party's employer or employee disregarded a safety regulation or did something unsafe then you may be able to make a claim.
In many cases, wrongful death claims following workplace accidents result from third-party liability. Some of these parties could include manufacturers who provided a defective piece of equipment, a property owner who should have corrected a hazard in the building, another driver, or others. Talk to an attorney to determine whether you can bring a wrongful death claim after a loved one dies at work.
Should I deal with insurance companies after my loved one’s wrongful death?
Insurance adjusters are smart and know you may want to settle your claim quickly. Because of this, they may offer you a quick settlement that is not worth the total value of your claim. Remember, in many cases, the faster an insurance company can settle a claim, the lower the settlement amount.
Working with a lawyer who has experience handling wrongful death claims and working with insurers can help you ensure that you receive appropriate compensation for the losses you endured.
How much will it cost me to pursue a wrongful death claim in Wisconsin?
When you work with the legal team at Nicolet Law Accident & Injury Lawyers, we will provide you with a free, no-strings-attached consultation to discuss your wrongful death case. We will advise you of your legal options to pursue compensation during the consultation. We will also explain our fee structure.
The legal team at Nicolet Law Accident & Injury Lawyers can meet with you to discuss your wrongful death case. Contact us to find out your legal rights and options.
Contact a Wisconsin Wrongful Death Lawyer To Hold Accountable For Your Loved One's Death
With so many financial concerns on your plate, the last thing you want to worry about is legal fees. We handle all wrongful death claims on a contingency basis so you do not have to pay anything upfront.
With offices in Eau Claire, Hudson, Woodbury, and throughout the region, we protect families across Wisconsin and eastern Minnesota.
★ ★ ★ ★ ★
“Team Nicolet were absolutely fantastic in the handling of my personal injury case. Russell and his team had an answer to every question I had - I always felt like I was being kept in the loop, that my case and well being were important to them and that they always had my best interest at heart. To add, Russell as well as being extremely professional is also also very personable - through a very turbulent time in my life I always found him to be very approachable, honest and with a huge amount of integrity!”
Review by: Matthew Roe.
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