Wrongful Death of a Child
A wrongful death in the state of California is a death caused by the negligence or wrongful act of another. Typically for children, it can be a car accident, a premises accident such as in a backyard swimming pool, or a medical procedure.
It can also be a deliberate act such as an assault or battery. That could include sexual assault or even police misconduct.
A wrongful death claim is a civil lawsuit, not a criminal one. Therefore it is brought by the survivors of the deceased or by the representative of the deceased person’s estate. It is not brought by the state with criminal penalties such as prison or probation.
Since it is not a criminal suit, it seeks money damages only. In California, a family can bring a civil wrongful death claim while at the same time a criminal case brought by the state is also in progress. Or, defendants may be exonerated by the state but still face a wrongful death suit.
The Main Causes of Death in Children
According to the Centers for Disease Control and Prevention (CDC), in a study of childhood injury between the years 2000-2006, on average 12,175 children 0-19 years of age die each year in the U. S. from unintentional injury.
Of those, the death rate for males was close to two times the rate for females. And transportation was the leading cause of death for children. The highest death rates were for occupants of motor vehicles in traffic. But there were also many pedestrian and bicycle deaths among children.
For different age groups, drowning was the leading cause of injury death for children ages 1-4. For ages 5-19 it was motor vehicle traffic crashes.
What Damages Can You Claim for a Wrongful Death of a Child?
Studies show that for parents, the death of a child causes more stress than the death of their own parent or spouse. The trauma of a child’s death can lead to depression, anxiety, marital problems and even suicide.
However, money damages allowed for the loss of a child are often difficult to determine. That’s because the death doesn’t usually cause a substantial financial loss. But you can still file a claim for:
- Medical bills incurred because of the accident injuries from the time of the accident until your child’s death.
- Funeral and burial expenses.
- Loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
- Grief and suffering if you witnessed the accident and subsequent death of your child. From the Judicial Council of California Civil Jury Instructions (2017 edition), “Emotional distress includes anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.”
- Loss of income if you are financially dependent on your underage child, such as if he or she was a child actor.
Some recent wrongful death lawsuits:
- The parents of Michael Brown, the 18-year-old shot and killed by a police officer in Ferguson, Missouri received $1.5 million in a wrongful death lawsuit against the city.
- In San Jose, California, the parents of Audrie Pott won a wrongful death suit against fellow students. Audrie killed herself at age 15 after she was sexually assaulted by the students who then took photos of her half-naked. Their wrongful death lawsuit brought an award of $950,000.
In each of these instances, the parents of the deceased children were motivated by more than money. Michael Brown’s parents blamed a police culture hostile to black residents. And wrongful death lawsuits for violent police conduct against children of color have been successful in Baltimore by Freddie Gray’s family, twelve year old Tamir Rice in Cleveland and Danroy Henry Jr., a 20-year-old college student in Pleasantville, N.Y.
Audrie Pott’s parents filed suit because they felt the boys that assaulted their daughter didn’t show enough remorse and should be held accountable for their actions. They wanted to set an example for the community that the boys’ behavior was unacceptable.
How To File a Wrongful Death Suit in California
The civil justice system encourages safe conduct and discourages unsafe conduct. That means that when someone engages in unsafe conduct that causes the death of a loved one, you may be entitled to compensation.
You may have a wrongful death case if you can prove:
- That the defendant owed your loved one a duty of care and breached it by failing to act as a reasonable person. Or you can prove that the defendant acted intentionally.
- That the defendant’s actions, or inactions, caused your loved one’s death. You must prove that your loved one would not have died but for the actions or inactions of the defendant.
- Damages were caused by your loved one’s wrongful death. You must be able to prove exactly how your loved one’s death resulted in damages. Then you must determine the value of those damages.
The first step in a wrongful death lawsuit is to file a complaint in California state court. The statute of limitations for the filing of wrongful death claims in California is within two years of the date of your child’s death. If the case isn’t filed in the civil court system within that time, you would most likely lose any rights to file at all.
A settlement is possible, but our attorneys are not afraid to go to trial if necessary. However, before we go to trial we will make sure that you understand all of the benefits and risks so you can make the right decision for you and your family.
At Case Barnett Law, we are ready to help. We want to know all about your child and what the loss has meant to you and your family. By understanding your loved one and your grief, we can effectively communicate your loss to the defendant and the court. We want to tell your story and get you the fair and just damages that you deserve.
If you have questions or your child is deceased because of the negligence of others, give us a call at 949.861.2990 or request a free, no-obligation consultation here.