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What Is a New Jersey Wrongful Death Action?

Posted by James Hunt | Jul 05, 2021 | 0 Comments

What Is a New Jersey Wrongful Death Action?

A wrongful death action in New Jersey is a lawsuit or claim for a family member's death caused by negligence or another's fault. The primary objective of a wrongful death action is to receive compensation on behalf of the deceased family member's estate. However, surviving family members can also receive a civil award for their loved one's negligent death through a separate action called a survival action.

A sudden and unexpected loss leads to significant financial and emotional losses to a family. It is critical to protect your family's legal rights during this challenging time. This blog post will help you understand general legal information related to a New Jersey wrongful death action and how you can move forward with a claim.

What Are My Legal Options After My Loved One's Death?

New Jersey's personal injury laws allow surviving family members and the estate to receive compensation if another's negligence caused your loved one's death. The family and estate generally have two legal options in these circumstances, including a wrongful death claim and survival action. Wrongful death allows the family to recover only economic damages, while survival actions seek compensation for the decedent's estate for non-economic damages like pain and suffering and punitive damages.

Let's look more closely at the differences between wrongful death vs. survival actions below:

What Is the Difference Between New Jersey Wrongful Death and Survival Actions?

In New Jersey, if a person dies as a result of another's negligence, there typically are two separate but related actions the family can pursue – a wrongful death action and a survival action. The majority of families can and do pursue both types of actions. Consult with a wrongful death attorney to ensure you take a comprehensive legal approach toward receiving fair compensation.

Here are the key differences between New Jersey wrongful death and survival actions:

Wrongful Death: Wrongful death claims allow the decedent's family to recover purely economic or financial damages as a result of the death.  Damages such as pain and suffering from injuries are not permitted in a wrongful death case (but those are recoverable in a survival action, see below).  Proceeds from the claim or lawsuit are distributed to named heirs and beneficiaries, with a preference for dependents such as the surviving children. The proceeds from a wrongful death action do not become an asset of the estate because it is not a personal claim. Recoverable wrongful death damages include lost earnings, lost future earnings, loss of companionship quantified as a dollar amount, lost inheritances, and other purely economic damages.

Survival Action: A survival action is a legal claim that is separate from a wrongful death claim, though both result from the death of a loved one.  A survival action seeks redress for personal injuries the deceased person could have pursued had the person not died.  The estate can file a damages claim for losses suffered like traditional personal injury damages the decedent suffered just prior to death.  Recoverable survival action damages include pain and suffering, disability or impairment prior to death, loss of enjoyment of life, medical costs, funeral and burial costs, and other losses experienced by the decedent. Any recovery is paid to the decedent's estate.

What Do You Need to Prove Wrongful Death?

What Do You Need to Prove Wrongful Death?

Wrongful death and survival action claims require evidence of negligence, like any personal injury case. Proving negligence is challenging in some cases and may involve numerous parties. However, your case must prove four (4) elements to recover compensation.

The elements of a wrongful death and survival action claim include the following:

  • Element 1. Duty: The opposing party owed you or your family member a general duty of care. For example, they had a general duty to drive safely or keep their property safe for visitors.
  • Element 2. Breach: The opposing party breached their duty of care. For example, they engaged in distracted driving or knowingly let visitors use a poorly maintained elevator.
  • Element 3. Causation: The opposing party's breach in the general duty of care resulted in your loved one's accident and subsequent death. For example, their distracted driving lead to a collision or poor elevator maintenance caused a deadly malfunction.
  • Element 4. Financial Damages: Your family member's death resulted in financial, physical, future, and emotional losses caused by the negligent actions of the opposing party.

In addition, proof must be brought forth to establish both economic damages and pain and suffering.  For example, proof of the decedent's salary in the form of tax returns, W-2s, and financial documents may be used to prove loss of income and future income. As for pain and suffering damages, the proof must establish that the decedent suffered some pain or discomfort prior to death. This could be difficult in certain catastrophic cases where death is instantaneous. Nevertheless, a skilled attorney can assist in establishing that a person did in fact experience pain and suffering even in those tragic cases.  Some cases involve an unconscious victim, such as where a blow to the head causes a person to be in a coma.  Insurance companies will attempt to argue that an unconscious person in a coma cannot experience any pain or discomfort, and therefore no pain and suffering damages are permitted. However, courts have permitted damages in wrongful death cases for “loss of enjoyment of life,” which must be quantified in a dollar amount – typically with the use of a medical expert witness.

As you can see, wrongful death and survival action cases in New Jersey are complicated to settle or litigate. They sometimes involve large insurance payouts, which means that the liable insurer will take every reasonable – and unreasonable – step to mitigate their payout, minimize the damages, place blame elsewhere, and evade liability altogether. Accordingly, surviving family members often hire an experienced wrongful death attorney to negotiate on their behalf and protect their legal rights throughout the process.

Who Can File a Wrongful Death And Survival Action in New Jersey?

There are limitations on who can file a wrongful death and survival action in New Jersey. Typically, in a wrongful death action, a surviving spouse or parent may have the right to bring an action.  Often, the administrator of the decedent's estate can also bring the action. Likewise, the executor or personal representative named in the deceased's last testamentary will can file the wrongful death claim. Similarly, the executor or administrator of the estate can pursue a survival action.

Those individuals who might qualify to bring a claim include:

  • Spouse
  • Children
  • Grandchildren
  • Parents
  • Siblings

In some cases, claimants must prove dependence on the decedent to claim damages from the estate. The decedent's spouse and children usually receive all legal proceeds. A non-spouse or other beneficiary cannot receive compensation before a spouse or child as a general rule. The courts are given discretion to apportion the recovery based on what is equitable and fair.

How Long Do You Have to File a Wrongful Death Action in New Jersey?

The statute of limitations in New Jersey also applies to people seeking legal recourse stemming from a negligent action. Our laws require that these claims begin within two (2) years of the decedent's passing. If filed outside of New Jersey's two-year statute of limitations, you forfeit your right to file a case. In addition, if a public entity or government (like a town, county or state) is at fault for the wrongful death, you must submit a tort claim notice within ninety (90) days of death or you may be prohibited from pursuing any claims for damages against a public entity.

There is an important exception to the two-year statute of limitations on wrongful death cases. If the death was caused by a crime like a murder and manslaughter, then the action may be brought at any time. The legislature amended the rule to allow for families to seek justice because many criminal investigations take a very long time to complete, are very complicated, take up a tremendous amount of time for the families, and may take more than two years to complete.

Due to the amount of time it takes to investigate and prepare a wrongful death suit, it is better to contact an experienced New Jersey wrongful death attorney as soon as possible.

Where to Get Legal Help with a Wrongful Death Action

When a loved one dies as a result of the actions of another person, you may be able to recover damages through a wrongful death and survival action. It is imperative to act quickly and retain an experienced legal counsel.

Schedule a Free Case Evaluation with Hunt & Associates, LLC

If you are facing the loss of a loved one and want to pursue a wrongful death case, you will need the assistance of a New Jersey wrongful death lawyer to decide what course of action to take. Hunt & Associates, LLC offers legal support to surviving family members and wrongful death victims.

Find out more about your options from our legal team today. Schedule a Free Case Evaluation now by phone at (866) 456-HUNT or message us online. We do not get paid unless we recover for you.

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About the Author

James Hunt

Jim Hunt, the founder of Hunt & Associates, is a former Big Law attorney who trained at one of the biggest and most prestigious law firms in the world. He now uses that unique experience and training to help his injured clients fight for justice against “the big guys,” i...

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