Yes, it is possible to file a wrongful death claim if the victim was partially at fault for the accident that caused their demise. The conditions that apply under Louisiana’s comparative negligence laws would also apply to a wrongful death case. This means eligible surviving family members who file a wrongful death action could recover awards if the decedent’s fault was less than that of the other negligent party.
Wrongful Death Awards are Based on the Percentage of Fault
Louisiana’s standing as a pure comparative negligence state means that the court will modify damage awards based on each party’s percentage of fault in wrongful death cases. The only exception to this rule is intentional tort cases per CC Art. 2323.
For instance, let’s assume a driver suffers a fatal rear-end accident with an 18-wheeler after failing to signal before changing lanes. The deceased driver’s spouse files a wrongful death lawsuit, and the court awards $500,000 in damages. However, the jury also finds that the deceased was 20 percent at fault for the collision. In this scenario, the recovery would be limited to $400,000.
As you can see, even if a person is partially at fault for their death, their family could still recover compensation in a wrongful death action. Unfortunately, recovering a fair payout in wrongful death cases often involves an uphill legal battle. This is especially true if the defendant argues that the deceased was partially at fault for their own death.
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ClientHow Louisiana’s Law Defines Wrongful Death
You may face opposition as you seek wrongful death damages for a loved one who may have played a role in their passing. If so, it helps to be clear on what Louisiana law says as you prepare the case.
First, a wrongful death case is a civil action. CC Art. 2315.2 says, “if a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death.”
What Causes Wrongful Death Under Louisiana Law?
A negligent act, an intentional act, or medical malpractice could all cause wrongful death. A person can cause wrongful death, but so can a company or corporation, or other entity.
- A negligent act occurs when one person or entity’s actions cause a person’s death. An example would be a vehicle accident in which a driver fatally injured someone after driving recklessly or under the influence of drugs and/ or alcohol.
- An intentional act occurs when a person willfully kills or harms another person. An example of this is a person who shoots someone else, resulting in their death. Intentional acts may also involve a criminal case.
- Medical malpractice occurs when a patient receives negligent care that falls below accepted standards and results in injury or death. Examples include being misdiagnosed, given the wrong medication, or given the wrong dosage of a medication.
Survivors Who Can Bring a Wrongful Death Action Forward
Since a decedent can’t bring forth a legal action on their own, CC Art. 2315.2 designates certain surviving family members who can. These are the relatives who would benefit if payment is awarded.
Qualifying family members typically include:
- The decedent’s surviving spouse and/or child or children
- The decedent’s father and mother, or either of them if there is no spouse or children
- The decedent’s siblings, if there is no surviving spouse, child, or parent
- The decedent’s grandparents, if there is no surviving spouse, child, parent, or sibling
State law also gives surviving family members only one year from the person’s death date to file legal action. If you find it challenging to handle this situation on your own, especially if the other party refuses to pay you, you can hire a personal injury attorney for support.
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Rick Smith | ClientWhat Can You do If the Party Won’t Pay a Wrongful Death Claim?
Wrongful death lawsuits are complex matters that often take time to sort out. If you are having a challenging time settling a wrongful death lawsuit, consider hiring a personal injury lawyer who knows the complexities of the law. Our team can develop a legal strategy in your case that could result in you receiving compensation.
Generally, as noted earlier, if the decedent could have filed a personal injury action against the responsible person or entity, you likely have a case. A wrongful death attorney from our firm can look at the facts, details, and circumstances in the case and advise you of your legal options.
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ClientOther Key Questions to Ask in a Wrongful Death Case
Here are answers to some frequently asked questions about wrongful death cases in Louisiana:
What Economic Damages Can I Pursue in a Wrongful Death Claim?
In Louisiana, the following economic damages may be recoverable in a wrongful death action:
- The deceased’s medical expenses (those that were incurred between the final injury or illness and their death)
- Funeral and burial expenses
- Lost income and benefits
- Property damage
Our team will look at all documentation you have of these damages and collect other evidence as needed.
Is it Possible to Recover Damages for Emotional Distress?
Yes. In Louisiana, it is possible to recover compensation for loss of companionship, affection, love, comfort, moral support, solace, and society. While there is no dollar amount attached to any of these damages, our wrongful death attorney will assign a value for each loss and add this to your compensation request from the liable party.
How do I Prove a Wrongful Death Case?
You or your attorney must prove four elements in a wrongful death lawsuit:
- The liable party owed the decedent a legal duty of care to keep them safe from harm.
- The liable party’s action or inaction breached this duty of care.
- The breach caused the decedent’s death. You must show how the action or inaction caused this person’s fatal injury.
- The death led to compensatory damages, such as medical bills, income loss, pain and suffering, and other losses.
Your wrongful death lawsuit must include all four of these elements to be successful. Without them, it will be nearly impossible to prove legal negligence.
If My Family Member Lived for a Long Time After Their Final Injury or Illness, Is It Still Possible to File a Wrongful Death Claim?
Yes. There are two causes of action in such a scenario: a survival action and a wrongful death action.
In a survival action, the plaintiff may be able to recover compensation for pain, suffering, and other damages incurred by the deceased between the final injury or illness and their death. Once the victim dies, surviving family members can pursue compensation in a wrongful death action.
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ClientCall Us Today to Discuss Your Louisiana Wrongful Death Case
If your loved one died due to another person’s negligence, you should not have to pay for medical expenses, lost income, and funeral costs out of your own pocket. Even if your loved one was a victim that was partially at fault in their accident, it is still possible for your family to file a wrongful death action. We will fight for financial awards that can help you and your family recover from the unexpected loss of your loved one.
Our team at Laborde Earles Injury Lawyers is here for you. Collectively, we have 350 years of legal experience and have handled many wrongful death cases. Call (337) 777-7777 for a free consultation with a team member. We will start on your case as soon as possible and require no money upfront to get started.
