CENTRAL FLORIDA WRONGFUL DEATH LAWYER
People are killed in accidents for which other people are responsible all too frequently. In Florida alone, vehicle crashes caused 3,150 fatalities and 254,484 injuries in 2018, according to the Florida Department of Highway Safety and Motor Vehicles (FLHSMV).
Many people know that when someone is injured due to someone else’s negligence, they may be entitled to compensation for medical bills and other damages resulting from the injury. But do family members have any legal recourse if a loved one has died as a result of another person’s negligence?
Yes, they do. If a wrongful act or negligence causes another person’s death, it is possible for the deceased person’s family to bring a wrongful death claim. This is still true if a company or some other entity, rather than an individual person, was the negligent party.
What Is Wrongful Death?
Florida law provides that when a death is “caused by the wrongful act, negligence, default, or breach of contract” of another party, the deceased person’s family can bring a lawsuit for damages. These are referred to as “wrongful death” claims.
Wrongful death claims are heard in civil courts. While a wrongful death may have been the result of a crime, the crime itself is tried separately in a criminal court, not a civil court.
Criminal cases are filed and prosecuted by the government. Individuals who are affected by the wrongful death, such as family members, do not receive monetary damages as a result of a guilty verdict in a criminal case; the wrongdoer is punished with jail time or fines collected by the government. For a deceased person’s family or loved ones to receive monetary damages, they must file a civil case. Wrongful death claims can be brought in civil court whether or not there is a criminal case related to the death.
Florida law has a “statute of limitations” for wrongful death cases. This means that the case must be filed within two years of the date of death. If the family attempts to file the case after the statute of limitations has run, the court will refuse to hear their claim.
To understand wrongful death, it’s important to understand the concept of negligence and how it applies to responsibility for an injury or death. Both people and entities, like businesses, owe the public, visitors, or customers a “duty of care.” For example, drivers owe other vehicles, bicyclists, and pedestrians a duty of care. Drivers must obey all traffic laws and operate their vehicles safely, in accordance with existing conditions. Homeowners and business owners also must keep their premises safe, so that visitors, customers, and employees are not injured.
If a duty of care is violated, it’s referred to as a “breach” of the duty of care. Vehicle operators who drive unsafely, for instance, have breached their duty of care. Business owners who either don’t maintain their business premises in a safe condition or fail to repair or remedy unsafe conditions have breached their duty of care.
If a breach of a duty of care leads to an accident or circumstance that causes an injury or a death, a court can find that the person or entity responsible for the duty of care was negligent. If they are found negligent in a wrongful death case, they can be held financially responsible for the death. Note that the injury or accident must specifically have caused the death. For example, if your loved one was injured in an accident, but their death was actually caused by an illness not related to the injury, you cannot recover compensation in a wrongful death claim.
Who Can Recover Damages in a Wrongful Death Claim?
In a personal injury case, the injured party themselves can file a claim for damages, such as the cost of medical care and lost wages from work. But who can file a wrongful death claim?
In Florida, only certain people or entities are entitled to file wrongful death claims and recover damages. The claim must be filed by the personal representative of the deceased person’s estate. Personal representatives can be named in the decedent’s will or estate plan. If the deceased person did not have a will or estate plan, the court will appoint a personal representative.
The claim for damages, though, is filed on behalf of the decedent’s personal estate and surviving family members. The personal representative must identify every surviving family member who has an interest in the wrongful death suit. “Having an interest” means they are entitled to recover damages.
Family members who may be entitled to recover damages include:
- The deceased person’s spouse
- The deceased person’s children
- The deceased person’s parents
- Any blood relative who was dependent on the deceased person for support or services, either partially or entirely
- Any adoptive sibling who was dependent on the deceased person for support or services, either partially or entirely
Under Florida law, a child whose parents were unmarried can recover damages from a wrongful death case if the mother has died. But the child can only recover damages after their unmarried father has died if the father formally acknowledged the child as his own and contributed support toward their care.
What Damages Can Injured Parties Claim in a Wrongful Death Suit?
The law provides that specific types of damages are available to the deceased person’s estate and family in a wrongful death claim under Florida law.
The decedent’s estate may recover the following:
- Medical expenses paid directly by the estate
- Funeral expenses paid directly by the estate
- Lost wages, other earnings, and benefits, including the value of earnings that the decedent could have reasonably anticipated receiving had they lived
- Lost “prospective net accumulations” or earnings value that the estate could have reasonably been expected to receive had the decedent lived
Family members entitled to recover damages can recover the following:
- The value of support and services the family member received from the deceased person
- Loss of companionship, guidance, and protection that the deceased person provided
- Mental and emotional pain and suffering if the decedent was a child
- Medical expenses if the family member has paid them
- Funeral expenses if the family member has paid them
What Type of Events Can Cause a Wrongful Death?
Car accidents caused by a negligent driver are one of the most common events that lead to wrongful death. There are many reasons a driver may be negligent, including driving under the influence (DUI) of alcohol or drugs, driving distracted, being fatigued, speeding, exercising poor judgment, or simply driving unsafely given the weather, traffic, or other conditions.
In 2017, 839 deaths in Florida car crashes were related to one of the drivers having a blood alcohol content of 0.08 or above, the point at which one can be charged from a DUI, according to the U.S. National Highway Traffic Safety Administration (NHTSA).
Florida is a “no-fault” state for car accidents. This means that all drivers are mandated to buy Personal Injury Protection (PIP) insurance of at least $10,000, intended to cover medical expenses and lost wages from work, regardless of who was at fault.
PIP does cover up to $5,000 of funeral and burial expenses in case of a death, regardless of who was at fault. But the decedent’s personal representative can still bring a wrongful death claim if another driver was at fault for the accident and death, regardless of whether PIP kicks in.
Motorcycle accidents can often be deadly because motorcyclists are essentially unprotected against the tons of metal that surround the occupants of other types of vehicles. Motorcyclists in severe accidents can be thrown from the bike, which can cause their death even if they are wearing a helmet. An accident can be especially devastating if the biker is not wearing a helmet, as head injuries can cause their death immediately or cause head injuries that lead to their death.
There were 590 fatal motorcycle accidents in our state during 2017, according to the NHTSA. Roughly half the bikers killed in those accidents were not wearing helmets.
Pedestrians, too, are very unprotected in a traffic accident, lacking even the protection of a helmet. They can be hit by any type of vehicle on Florida’s roads: cars, trucks, motorcycles, bicycles, and school buses. As a result, 21 percent of Florida’s traffic fatalities stem from pedestrian accidents: 654 pedestrians died in traffic accidents during 2017. a pedestrian accident attorney can help you understand what to do if you or a loved one has been in an accident.
Large trucks caused 45 deaths in Florida during 2017, the NHTSA reports. While that is far fewer than the deaths caused by car accidents or motorcycle accidents, large commercial truck accidents all too often result in fatalities when they do occur. Big rigs are large and heavy. They can overturn or jackknife, smashing nearby vehicles, or catch on fire due to the truck’s large fuel tanks. More information can be discussed with a skilled truck accident attorney who can answer any question you may have.
Bicyclists can be severely injured if they are hit by a larger vehicle, an object, or even by a pedestrian. Bicyclists accounted for 4 percent of deaths in Florida traffic accidents in 2017, at 125 fatalities. Speaking with an attorney who specializes in bicycle accidents can help you learn more.
Rideshare companies such as Uber and Lyft can be held responsible for wrongful death. Florida passed strict regulations governing these companies in 2017. They are mandated to perform background checks and thoroughly vet the drivers they hire.
Rideshare companies cannot legally hire drivers who were previously convicted of a DUI, reckless driving, a hit and run, or other disqualifying offense in the five years before their application. The companies are responsible for ensuring that their drivers have a valid driver’s license.
If one of their drivers is charged with a DUI, the company must suspend them from working, whether the DUI happened on-duty or not. If they are convicted of the DUI, they must be terminated from their employment with the company.
Property owners have a duty of care toward people who come onto their property. Business owners must make sure that their premises are safe for the public. If conditions become unsafe, they must repair and remedy the situation as soon as possible. The business must also make it clear that an area is unsafe.
If the premises aren’t safe, and someone dies as a result of a condition on the premises, the business owner can be liable for wrongful death under premises liability law.
Sometimes business owners may try to claim that they weren’t aware their premises were unsafe. In that case, the law looks at what a reasonable person would have done. If a reasonable person should have known an area was unsafe, a court is unlikely to believe this defense.
Private property owners must also make sure that their property is safe. They have a duty of care to three different classes of the public, while business owners must make sure their premises are safe for every member of the public.
Private property owners (such as homeowners) owe a duty of care to business visitors (like repair people) and to invited social visitors (such as friends and neighbors). They must maintain their premises in a safe condition, and both business and social visitors must be warned if any area is unsafe.
If people come onto private property without permission, Florida law requires only that the property owner refrains from deliberately harming the trespasser, but they otherwise do not owe trespassers a specific duty of care. If a trespasser falls from a tree and dies, for example, their family would not be entitled to bring a wrongful death claim against the property owner.
A significant exception, however, is made for children. Florida operates under laws called the Attractive Nuisance Doctrine, which applies to children and premises liability. If a property contains areas or items that could attract children, the property owner can be liable if the areas or items aren’t safe, locked, or fenced off.
The doctrine applies whether or not the children are invited guests. A swimming pool or fire pit that may draw children, for instance, needs to be protected with a barrier, or the owner can be liable if a child is injured or killed by the attractive nuisance. This doctrine can also apply to airtight containers or discarded appliances that children may be able to get inside of but not out of.
Under Florida law, victims of a violent crime such as a gunshot or a stabbing that took place in a commercial establishment, such as a hotel or parking garage, can bring a suit against the property’s owners if they failed to have adequate security on the premises. If the crime results in a death, the owners could be liable for wrongful death.
If You Need a Wrongful Death Attorney in Orlando
A loved one dying is always a tragedy. If it occurs as a result of someone else’s negligence, it can be particularly devastating. This terrible event can harm you and your family both emotionally and financially for years to come.
Let wrongful death attorney Jerry Jenkins help. Our initial consultation is always free. When we take on a case, we fight hard to see that justice is done.
Contact us online or by calling (407) 287-6757.
★ ★ ★ ★ ★
“All I can really share is that Mr. Jenkins was helping people for free at a church function, I heard about it, and called him. He was super friendly, knew the rules off this tongue, and provided spot-on counsel. I’m an engineer and have rules (Florida Statutes) I have to know, and I genuinely respect his knowledge. If you’re looking for a true expert, this guy is legitimate.”
Review by: Brad H.