How would I file a wrongful death lawsuit for my deceased son?
Full Question:
Answer:
Wrongful death is a civil action which charges another with being liable for injury resulting in another's death by reason of negligent actions or a failure to act which could foreseeably result in death. The plaintiff (the executor or administrator of the estate of the decedent, family member, or spouse) must prove that the decedent would not have died but for the negligence of the defendant. Damages which may be recovered are medical expenses, loss of wages and future earnings, loss of consortium, loss of support, and loss of companionship. A child might be entitled to compensation for the personal loss of a father as well as the amount of financial support the child would have received from the deceased parent while a minor, a wife would recover damages for loss of her husband's love and companionship and a lifetime of expected support, while a parent would be limited to damages for loss of companionship but not support. Generally, funds recovered by a personal representative in a wrongful death action are intended for the exclusive benefit of the statutory beneficiaries and are not an asset of the decedent’s estate.
The following are Florida statutes:
768.19 Right of action. —
When the death of a person is caused by the wrongful
act, negligence, default, or breach of contract or warranty
of any person, including those occurring on navigable
waters, and the event would have entitled the person injured
to maintain an action and recover damages if death had not
ensued, the person or watercraft that would have been liable
in damages if death had not ensued shall be liable for
damages as specified in this act notwithstanding the death
of the person injured, although death was caused under
circumstances constituting a felony.
768.20 Parties. —
The action shall be brought by the decedent's personal
representative, who shall recover for the benefit of the
decedent's survivors and estate all damages, as specified in
this act, caused by the injury resulting in death. When a
personal injury to the decedent results in death, no action
for the personal injury shall survive, and any such action
pending at the time of death shall abate. The wrongdoer's
personal representative shall be the defendant if the
wrongdoer dies before or pending the action. A defense that
would bar or reduce a survivor's recovery if she or he were
the plaintiff may be asserted against the survivor, but
shall not affect the recovery of any other survivor.
768.21 Damages. —
All potential beneficiaries of a recovery for wrongful
death, including the decedent's estate, shall be identified
in the complaint, and their relationships to the decedent
shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and
services from the date of the decedent's injury to her or
his death, with interest, and future loss of support and
services from the date of death and reduced to present
value. In evaluating loss of support and services, the
survivor's relationship to the decedent, the amount of the
decedent's probable net income available for distribution to
the particular survivor, and the replacement value of the
decedent's services to the survivor may be considered. In
computing the duration of future losses, the joint life
expectancies of the survivor and the decedent and the period
of minority, in the case of healthy minor children, may be
considered.
(2) The surviving spouse may also recover for loss of the
decedent's companionship and protection and for mental pain
and suffering from the date of injury.
(3) Minor children of the decedent, and all children of the
decedent if there is no surviving spouse, may also recover
for lost parental companionship, instruction, and guidance
and for mental pain and suffering from the date of injury.
For the purposes of this subsection, if both spouses die
within 30 days of one another as a result of the same
wrongful act or series of acts arising out of the same
incident, each spouse is considered to have been predeceased
by the other.
(4) Each parent of a deceased minor child may also recover
for mental pain and suffering from the date of injury. Each
parent of an adult child may also recover for mental pain
and suffering if there are no other survivors.
(5) Medical or funeral expenses due to the decedent's injury
or death may be recovered by a survivor who has paid them.
(6) The decedent's personal representative may recover for
the decedent's estate the following:
(a) Loss of earnings of the deceased from the date of injury
to the date of death, less lost support of survivors
excluding contributions in kind, with interest. Loss of the
prospective net accumulations of an estate, which might
reasonably have been expected but for the wrongful death,
reduced to present money value, may also be recovered:
1. If the decedent's survivors include a surviving spouse or
lineal descendants; or
2. If the decedent is not a minor child as defined in
s. 768.18 (2), there are no lost support and services
recoverable under subsection (1), and there is a surviving
parent.
(b) Medical or funeral expenses due to the decedent's injury
or death that have become a charge against her or his estate
or that were paid by or on behalf of decedent, excluding
amounts recoverable under subsection (5).
(c) Evidence of remarriage of the decedent's spouse is
admissible.
(7) All awards for the decedent's estate are subject to the
claims of creditors who have complied with the requirements
of probate law concerning claims.
(8) The damages specified in subsection (3) shall not be
recoverable by adult children and the damages specified in
subsection (4) shall not be recoverable by parents of an
adult child with respect to claims for medical negligence as
defined by s. 766.106 (1).
768.23 Protection of minors and incompetents. —
The court shall provide protection for any amount
awarded for the benefit of a minor child or an incompetent
pursuant to the Florida Guardianship Law.
768.36 Alcohol or drug defense. —
(1) As used in this section, the term:
(a) "Alcoholic beverage" means distilled spirits and any
beverage that contains 0.5 percent or more alcohol by volume
as determined in accordance with s. 561.01 (4)(b).
(b) "Drug" means any chemical substance set forth in
s. 877.111 or any substance controlled under chapter 893.
The term does not include any drug or medication obtained
pursuant to a prescription as defined in s. 893.02 which was
taken in accordance with the prescription, or any medication
that is authorized under state or federal law for general
distribution and use without a prescription in treating
human diseases, ailments, or injuries and that was taken in
the recommended dosage.
(2) In any civil action, a plaintiff may not recover any
damages for loss or injury to his or her person or property
if the trier of fact finds that, at the time the plaintiff
was injured:
(a) The plaintiff was under the influence of any alcoholic
beverage or drug to the extent that the plaintiff's normal
faculties were impaired or the plaintiff had a blood or
breath alcohol level of 0.08 percent or higher; and
(b) As a result of the influence of such alcoholic beverage
or drug the plaintiff was more than 50 percent at fault for
his or her own harm.