Who Can File a Wrongful Death Claim and For What Damages?

June 26, 2012

Wrongful Death

wrongful death attorney in Ohio Wrongful death occurs when a decedent’s death was caused by a wrongful act, neglect, or a default of another, which would have entitled the deceased party to maintain an action against the person that caused the death, had the decedent survived. In cases of product liability, the cause of the death is sometimes a manufacturer and not a person.  Sometimes, the person that caused another’s death is deceased themselves, in which case an action can be commenced against their estate for damages.

A claim can be brought in Ohio within two years of the date of death.  The aim of wrongful death statutes is to achieve compensation for the survivors, as if the decedent had not died and continued to be there for them providing support and companionship.  As such, civil compensatory damages are permitted in Ohio, and they can be awarded for the following purposes:

(1) Loss of support from the reasonably expected earning capacity of the   decedent;

(2) Loss of services of the decedent;

(3) Loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education, suffered by the surviving spouse,    dependent children, parents, or next of kin of the decedent;

(4) Loss of prospective inheritance to the decedent’s heirs at law at the time of  the decedent’s death;

(5) The mental anguish incurred by the surviving spouse, dependent children, parents, or next of  kin of the decedent.

(O.R.C. 2125.02)

Now that you know what wrongful death is, you should also know who can commence the action.  Ohio law states that “A civil action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent.”(O.R.C.)

The above-cited statute language makes it clear that only a person may bring a lawsuit for a particular decedent—that person is the personal representative of the decedent.  The representative brings the claim in their own name, on behalf of the deceased.  If the claim is meritorious and ultimately successful, the proceeds of such are then split between the beneficiaries of the decedent.  If the beneficiaries are all of equal consanguinity (blood relation) to the deceased, then they may distribute the proceeds amongst themselves as they wish.  However, if the beneficiaries are not on equal grounds as to blood relation to the decedent, then the court may distribute the proceeds as it decides is just and fair.  In addition, the court will always distribute the funeral and burial expenses to the personal representative of the decedent to be spent on the same.

This article highlights the purpose of wrongful death and some of the statutory rules which govern its administration.  Dealing with the death of a loved one is always difficult because nothing can replace them.  If you have any questions about the nature of the death of your family member, please don’t hesitate to contact Slater & Zurz, LLP for a free consultation at 1-800-297-9191 to make certain that you are adequately represented in order to insure compensation for damages sustained by you incident to the loss of your loved one.  You can also send us a blog message to ask any questions that you may have, or schedule an appointment with an experienced attorney.

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About slaterzurz

Slater & Zurz LLP is an Ohio law firm of highly experienced and respected attorneys. Over the last 40 years, we have developed a reputation for getting positive results for clients. We've been trusted with handling over 20,000 personal injury cases and our clients have received more than $120,000,000.

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