Among the most challenging cases that our law firm handles involve the wrongful death of a loved one. Our attorneys realize that the surviving family members we assist are experiencing a mix of extreme anger and tremendous grief.
As their lawyers, our role is to show compassion while, at the same time, using our legal skills, experience and resources to objectively and carefully evaluate their case and pursue the recovery they are due.
If you have recently lost a loved one in an accident, it may be helpful for you to get a better understanding of how a wrongful death lawsuit works in New Jersey.
You may be surprised to learn that, despite the emotional nature of these cases, New Jersey law permits the recovery of only actual financial losses in a wrongful death lawsuit.
When Can a Wrongful Death Claim Be Pursued in New Jersey?
A wrongful death claim in New Jersey may be pursued when a person’s death is caused by the “wrongful act, neglect or default of another.”
A wrongful death lawsuit basically can be brought if the victim – called the “decedent” – could have brought a personal injury lawsuit against another if the victim had not died.
Like a personal injury claim, a wrongful death lawsuit requires proof of negligence. To establish a party’s liability, four elements must be shown:
- Duty – The party owed a duty of care to the victim. For instance, the party owed a duty to drive as a reasonable, prudent person and not place other motorists such as the victim at risk of injury.
- Breach – The party breached the duty owed to the victim such as driving at a dangerous speed on an icy road or driving while drunk or distracted.
- Causation – The party’s careless actions served as the proximate cause of the victim’s death. In other words, but for the party’s careless driving, the victim would not have been killed.
- Damages – As a result, those eligible to recover under the New Jersey Wrongful Death Act have suffered actual financial losses.
We will go into more detail about those damages below.
Who Can File a Wrongful Death Claim in New Jersey?
A wrongful death claim in New Jersey must be brought in the name of a personal representative of the victim’s eligible survivors. The representative may be the executor named in the victim’s will. If the victim has no will – a situation that often arises – then the representative would be the person appointed by a probate court to serve as the administrator of the victim’s estate.
The lawsuit is brought on behalf of surviving family members who would be entitled to inherit from the victim through New Jersey’s intestacy laws. In other words, a recovery can be sought by:
- The surviving spouse and children
- If there is no surviving spouse and children, then the victim’s surviving parents
- If there are no surviving parents, then the victim’s surviving brothers, sisters, nieces or nephews.
To be eligible, the victim must demonstrate “actual dependency” on the deceased victim. In other words, a mere relationship alone will not suffice.
What Damages Can Be Recovered in a New Jersey Wrongful Death Lawsuit? 325
As we stated above, only actual financial losses – called “pecuniary damages” – can be recovered in a wrongful death claim in New Jersey.
This means that no compensation can be pursued for the pain and suffering that a victim sustained. Those damages would need to be pursued in a different claim, which could be brought at the same time as a wrongful death lawsuit.
Additionally, in a wrongful death lawsuit, no recovery can be sought for the emotional distress, mental anguish and grief of surviving family members. However, a negligent infliction of emotional distress may be pursued if a family member witnessed a loved one’s death in person.
The types of damages that can be sought include:
- Loss of income – The amount of income that the victim would have actually earned and contributed to his or her survivors. An economist typically calculates this amount and provides expert testimony. The amount typically is determined by taking the victim’s income at the time of death (including fringe benefits) and multiplying it by the number of years in which the victim would have worked. Then, you must subtract income taxes the victim would have paid and the amount he or she would have used for “personal maintenance and expense.”
- Loss of services – The reasonable economic value – not the emotional value – of the loss of services, assistance, guidance and training that the victim would have provided. Generally speaking, you have to provide evidence of what it would have cost if someone else provided these services. For example: What would a babysitter charge for looking after children? What would a maid charge for cleaning up the home? What would a therapist or business advisor charge?
- Reasonable funeral and medical expenses – These damages are established simply through bills and receipts.
Punitive damages are not available in a wrongful death lawsuit in our state.
The total amount of damages should reflect both the financial losses that the survivors have sustained up to the date of the settlement or verdict and the present value of any future financial losses.
The ultimately recovery may be offset by certain types of benefits the victim’s family may have received. For instance, the recovery may be offset by workers’ compensation death benefits that were paid to the family.
How Long Do You Have to Bring a Wrongful Death Claim in New Jersey?
The period of time that one has to bring a lawsuit is called the “statute of limitations.” In New Jersey – as in other states – the statute of limitations depends on the type of case. For a wrongful death case in New Jersey, you typically must bring a claim within two years after the date of the victim’s death.
An extensive amount of work goes into investigating and preparing a wrongful death lawsuit. So, it is important that you do not wait too long before contacting an experienced New Jersey wrongful death attorney if you believe that your loved one died due to the careless, reckless or intentional actions of another.