Wrongful death is different than all other types of claims. No one is prepared. A wrongful death is a sudden, unexpected and traumatic death. Many deaths have a sort of naturalness to them, when life ends due to old age, illness, or even war. The sudden, unexpected, preventable death stands apart from a natural death due to the surprise. A wrongful death creates a constellation of losses. There are so many interconnected losses that affect the family and survivors.
A death in the family is a death of the family. The death of a person in a family unit is the death of the family. This loss can generate anger, misunderstandings tension and confusion between the remaining family members as they try to construct a new family unit out of the ashes of the old one.
A death in a family often times represents multiple types of deaths. For example, the wife lost her husband, but his children lost their father. While the wife grieves the loss of her chosen life-mate, the children grieve the loss of a loving parent. And the grief of a son is different than that of the daughter. And the relationships between all of the survivors changes.
As a trial lawyer handling a wrongful death case, I am a communicator for the family. I address jurors who come to the task of trying to measure the losses of a death. I am talking to jurors who are reluctant to deal with someone else's grief and much less take it on as their own grief. A jury's empathy for the family and survivors helps build a bridge of understanding and acceptance for the jury. To win a wrongful death trial, I must first persuade the jury that the defendant violated a safety rule that has been put in place for the safety of all of us. Secondly, I must show that the violation of this safety rule bore risks to all of us. Third, one of those risks the defendant chose to take had a price of death to an innocent victim. Fourth, the death of my client was caused by one of the harms that following the rule would have avoided. And fifth, that allowing a safety rule breaker to get away with breaking a safety rule puts us all at risk of injury or death in the future.
How can I fairly and accurately represent my client in trial? My tools are mere words which I must use to connect the jury with my clients. When the evidence is all shown to the jury and by the end of the trial, the death in question must no longer be the death of a stranger, but the death of a man, a woman, a child, a real person with whom the jury feels connected. And the jury must also feel connected to the survivors who loved the deceased person. The evidence of their loss must be presented with an almost intimate familiarity. If the jury does not have feelings of empathy for my clients, the case is lost.
In a trial, it is a mistake to have the survivors talk about their personal losses directly. They are excellent at communicating the losses and changes they have perceived between other family members. But when it comes time to present the evidence of their personal loss, it is best to use other witnesses who were close to the family who can explain the loss. Juries tend to be more receptive to descriptions of pain by those who didn't suffer it. My clients should tell anecdotes and short stories about the deceased's life that the jury can relate to and connect with. It is a good idea to have my client's talk about the connections they have lost rather than to describe their own pain. These types of connections lost are more easily observable, objective and they represent permanent losses that are tangible and easy for a jury to listen to as well as understand.
Defense lawyers "common sense" tactics in a wrongful death trial, here are some of them, The insurance company defense lawyers will try to get the jury to adopt myths such as: "They are here asking for money for their dead child." They will suggest that the family is greedy by trying to profit from their loss, when "no amount of money can bring a child back." The insurance defense lawyers will suggest that by the parents suing for money damages, they are doing something bad. The facts are that every one of my clients would gladly forfeit all the money in the world to get their child back. But the wrongdoing can't be reversed, and now is the time for accountability, full accountability for the loss that the wrongdoer caused.
The history of wrongful death claims started in 1846 "Lord Cambell's Act" which was founded due to an epidemic of tragic railroad deaths. The British Parliament allowed bereaved survivors to sue for damages for the wrongful death of a loved one. "... the wrongdoer in such case should be answerable in damages..."
Florida Law is governed by Florida Statute §768.16 entitled the Wrongful Death Act. The Florida legislature says: “It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” The law goes on to define "survivors" who are allowed to bring a claim for a wrongful death.
Florida Statute §768.18 defines Survivors as: the decedent’s spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters.
The death of a spouse: A marriage is a uniting of two biologically unrelated partners who have made a conscious decision to form one union. Also, there is some uniting of the various in-laws. Because the death of a spouse is sudden and unexpected, there is no contingency plan. If it is the death of a husband, the surviving wife is thrust onto the position of life where she no longer is in a supporting role, but instead, she is in charge of many things she may have never had to consider before, and all without the advice and counsel of her mate. She will be called on to make important emotional decisions, and she must make them quickly. Especially if there are children involved, like, what do you tell them about what happened? Should they attend the funeral? She must also deal with the in-laws and their wishes and desires. If she is a parent, she has to accept many new responsibilities with the children that used to be handled by their father. She has to help the children deal with their grief as well as her own. How shall she help her young children when they must return to school, what shall the children tell their teachers and friends? How should the children expect their friends to react to this news?
The newly single parent likely feels all alone, yet, she is expected to rise above the problem, raise the children, mange the home, pay the bills, be brave, strong and smart. Never faltering.
How should the parent handle going to the cemetery? Should she require the children to go, should she prevent them from going? What about Mothers Day and Fathers Day? What about birthdays and holidays?
All of the roles of the deceased spouse now fall on the surviving spouse. If it is the wife and mother that died, then the husband will have to deal with many delicate issues of raising his daughter. If it is a father that died then the mother has many difficult roles to fill to support her sons.
The death of a spouse who is also a parent causes the spouse to struggle to keep her husband's image alive for her young children who would not have remembered their father except through pictures and stories.
In many ways, the surviving spouse may want to find a new spouse, but feels the pressure of how her friends and family will disapprove of dating so soon. But dating comes at a cost, the feeling of betrayal and disloyalty, and the children probably do not want a new person in their lives. What should they do? Make sacrifices for the stability of the home?
Death of a child: The death of a child causes the most serious, intense, and long lasting grief. Nothing in life prepares any us for the loss of a child. We have no coping skills. Parents who lose a child are thrown into chaos. The loss is shattering.
The ages and circumstances of the loss of each child is unique. The loss of a still born, a two year old, a teenager, each one has special considerations and grief reactions of the survivors.
The loss of a child will likely never end. The parents will tend to experience grief on important milestones, birthdays and holidays for the rest of their lives.
The death of a child is the death of a future. The death of a grandparent is the loss of the past.
Parents of deceased children have particular needs. They want to feel that their efforts to bring a case will have made a difference in someone else's life. They want to know that they have made the community, the country, or the world a safer place by having a defective product recalled, or the risks of drunk driving brought home to high school students. They set out to right a wrong, and make the community a safer place. And fortunately, money is a good motivator to deter corporations and irresponsible people from continuing to choose to do dangerous things that kill innocent victims.
When the parent is also a spouse, there are often times when the children feel neglected because the attention may go to the surviving spouse.
The age of a child is a powerful factor in their grieving process. The grief a child may include sadness, anger and fearfulness. They may have trouble concentrating, eating and feel restless and out of control. Behavioral problems are common.
A very young child may struggle to keep their memories intact of their parent. They will rely upon photographs, stories and others to help them to know their missing parent.
Children around the age of two commonly have a reversal in their language skills.
Children under the age of five are likely to have eating, sleeping and bowl and bladder problems. Young boys tend to exhibit anger and aggression instead of sadness.
Some children become panicky very easily after the loss of a parent.
Adolescent children, especially girls, have a strong need for comfort and reassurance which may lead to sexualized relationships that are sought to fill the loss.
The grieving of children like adults follows a general pattern. However, children may suffer severe self-esteem problems. They may feel as though they have been deserted and are therefore unworthy in life. And depending upon the age, the child may feel that they have to take on much of the roles of their deceased parent to help their remaining parent.
Questions children ask themselves after the loss of a parent are; did I cause this to happen? Will this happen to me? and Will this happen to my other parent?
Grief has so many factors. Grief is seldom rational or orderly. Grief is not a disease with a cure, it is a process, a long and painful one for most. Each person's response or reaction to death is a unique and a complicated one.
Shock, numbness and disbelief may all be present following any death, but these feelings are usually more intense and longer lasting in sudden, unexpected wrongful deaths. Anger may follow most wrongful deaths.
Anger after a death is full of ambivalences and contradictions. A bereaved wife may direct anger at herself for failing to have prevented the death of her husband even though there was nothing she could do, and she has no fault at all. Many times these anger feelings are directed towards others by blaming the person who was at fault. Guilt too may become part of the grief process. A survivor's assumed responsibility for the death will complicate that survivor's resolution of grief. This is also an area where as the trial lawyer it is my duty to help my client deal with these guilt issues to make sure that they don't cause the client to diminish their claim by their misplaced guilt. Guilt is a normal reaction to any death, however the attorney must be familiar with how to counsel the client through this stressful time.
Greif resolution is not linear, nor very orderly. It is a personal process with many complicating factors for each person. Some people get stuck on one area and do not seem to move past it. Others may move through some aspects of grief, but then later return again.
Physical Sensations. Tightness in their chest, hollowness in the stomach, shortness of breath, lack of energy, dry mouth.
Behavioral Changes. Increase in alcohol consumption, smoking, use of medications to help combat depression.
Cognitive Problems. A widow may think, "This is a mistake! They have misidentified him. My husband is still alive and will call me shortly." or she may believe "This is a dream, a nightmare, and I will awaken in a minute." A survivor may enter denial and avoidance to avoid the message of death. Some people become obsessed or preoccupied with thoughts about the deceased.
Lifestyle Changes. sleep disturbances, intense sadness, appetite changes, social withdrawal, dreams of the deceased are common, hyper activity, working long hours so as not to be home.
Breaking Connections. Death is a breaking of connections. The bereaved may avoid going to certain places, or avoid contacting or interacting with friends and family members.
Sudden and unexpected deaths cause anxiety, and cause a person to ask:
Short-term questions might include: What are my new roles? Am I equipped to handle them? How can I make decisions for which I'm ill equipped? What should I tell the children? Should they attend the services? What kind of service should I have?
Mid-term questions might include: How will I ever be able to take care of myself and the children financially? How will I manage this house? Should I sell it? Should I keep it for the children?
Longer term worries: What if something happens to me? Who will take care of the children Who should I ask to be their guardian?
Some anxieties are "me" focused. He died way to early. Will I? How will I handle the investments and the retirement account? How do I do the taxes? How will I live without his advice? What if the children become seriously ill? With whom will I share ideas? Will I need to remarry? I don't want to, but maybe I'll have to.
These are just a few of the overwhelming questions that survivors may ask themselves.
Some survivors may have mood swings and feelings that oscillate wildly from warm, fond memories of the deceased to avoidance of all memories and reminders of them.
The relationship between the survivor and the deceased is not the only relationship that has changed, the relationship between the survivors will be impacted as well. For example, a wife has lost her husband, but now her relationship between her and her children will be impacted. After considering all of the emotions that are "me" related (between the deceased and the survivor) we next must consider the outside relationships and how grieving affects the interpersonal relationships between the various survivors.
Does grief end? No, it never ends, it only changes forms and degrees.
A young child may not be able to express their inner turmoil in a very articulate way. This has created a myth that children have a shorter period of grief. However, the research has shown that children grieve in spurts and are not able to complete their tasks of mourning until they reach physical maturity along with the corresponding cognitive and emotional maturity, usually in their mid-twenties. Some parents feel that they should "be strong for the children" and not openly mourn the loss. This can cause a lack of a model for the children to handle their grief. It is suggested that parents should express their grief so that their children may more easily express theirs.
Grief will be different for family members who were close by the decedent at the time of the death as compared to family members who may have lived far away, or had less contact with the decedent. The speed of the death will be an important factor to consider. For example, was the death caused by medical malpractice or nursing home neglect that took a very long time for the decedent to die, and they suffered great anguish during their final weeks of life? Which family members were care givers during this time may have a different reactions to the loss, and their grieving will be different. Many people get stuck on their personal grief, and are insensitive to the grieving needs of other family members. Children may sense that they lost one parent to death and the other to indifference. The surviving spouses self absorption may be justly earned. They didn't just lose a spouse, they lost a lover, a friend, a confidant, a protector, soul mate. They lose their identity. "I was his spouse I am no more." Mail still comes addressed to him. He left me with this house to manage and I don't know how. I lost my economic security. I lost our future. As a single woman I am an outcast. Our friends must have been his friends since they don't call me or socialize with me any longer.
Each person has their own personal response to death, and some people may feel that as the pain diminishes, this is a betrayal of the dead loved one. They may think that they are not entitled to be happy every again. And grief may be complicated if there are no social support networks to help the griever deal with their reactions to the death.
When a death is sudden, unexpected, traumatic, preventable, and caused by a human wrongdoer, the intensity, duration and processing of the grief is unique. A wrongful death is an unnatural end point of a life. The life was prevented from living its natural course. And from this unnatural change, the grieving process is unique and unlike the reactions people experience from a natural death.
A wrongful death does not allow any time for preparation. When a parent or grandparent dies of natural causes there is a natural end point of that life. This allows family members to prepare, to communicate their love, to reconcile differences, to allow an orderly transition. Families and friends are able to prepare themselves emotionally. It is a sad situation when people learn of an impending death, and they can make adjustments, such as seeking additional medical attention, to seek hope in this dark time, to pray, to tell their loved one that they were loved and would be remembered. It allows the family to seek reconciliation with loved ones that they may have been physically or emotionally distant. In a sudden death, people are rendered helpless, powerless, out of control. Sudden death deprives families of the chance of rescue. A sudden death takes away the future. Talked about hopes, aspirations and promises go unfulfilled. And this is made even worse since there is a wrongdoer. A preventable death caused by another. And when there are not any criminal charges against the wrongdoer, it even makes it harder for the family to grieve.
Mourning is a process, not a state of mind, and as in any process, work is done so that the process can proceed to successful finalization. According to J. William Worden Grief Counseling and Grief Therapy, there are four tasks to mourning, which may take place in any order.
This task involves coming face to face with the reality that the person is dead and will not return. Often the bereaved refuse to face the reality of the loss, and may go through a process of not believing, and pretending that the person is not really dead. This denial can take several forms, such as preserving the possessions of the deceased so they will be there when they return. Selective memory, when the bereaved forgets or blocks out memories of the deceased. While the bereaved intellectually knows of the loss, they will try very hard to deny the loss. This process is one of making the death a reality to them. Denying the loss is the clearest sign of Task 1.
Allowing oneself to feel the pain rather than suppressing the experience is thought to be beneficial in the resolution of grief. In some social contexts the expression of grief may be encouraged, while in others a subtle message may be given that the mourner should stop grieving and get on with life. And therefore the expression of grief may be considered unhealthy. Often friends will attempt to distract the bereaved from their grief, and this may hinder the mourning process. People can hinder the mourning process by avoiding painful thoughts and avoiding reminders of the dead, and using alcohol or drugs to desensitize the pain off loss. This often triggers feelings of anger towards the wrongdoer, a sense of helplessness, despair and anxiety.
Following the wrongful death, the bereaved has to take on new roles. For example a single father raising young children has to assume many new roles to care for his children. The full extent of what is involved and what has been lost, may not be realized for some time. Another example may be the surviving mother having to learn how to manage the home, cars, and investments which may have been done by her spouse. Many survivors resent having to develop these new roles. When attempts to fulfill these new roles fail, the person may even lose more self esteem which can lead to further feelings of helplessness and they may withdraw or attempt to avoid the requirements of the world.
Reinvesting requires that the bereaved to live a life with the memories of the deceased but without the presence of them. "The touch is gone, the laugh is gone, the promise and the possibilities are gone, the sharing of music, bread, and bed is gone, the joy-giving flesh-and-blood presence is gone, but the dead person lives on within me." Judith Viorst, Necessary Losses p. 281 (Fawcett Gold Medal-Ballanatine Books 1998).
The mourning or grief process for a family is not done until all of the members of the family have finished.
The death of one member of the family triggers may other losses such as loss of income, loss of status, loss of companionship, stability and many other tangible and intangible losses.
When a family has lost one parent and then a second tragedy takes the remaining parent the children have additional losses. The eldest child may be forced to take on an adult role before they would naturally.
Loss of a wife: The husband must deal with raising the children alone, child care, counseling his children about the stages of life. He must attempt to take over all of the things his loving wife brought to the family.
Loss of a husband: The wife must deal with raising the children alone, has to assume many new roles to manage the house, the cars, the investments, decisions about college. Imagine the challenges of raising two adolescent boys to responsible manhood.
Losses change the equilibrium on life, and cause one to look at things they don't want to look at. The survivors may ask, "Who am I?" What am I going to do now?" "Where am I going?" "What meaning does life hold for me now?" Everyone needs a reason to live, we need motivation to wake up and get going out of the house. However, many people lose their reason to live after a wrongful death of a loved one.
Some losses are the loss of beliefs that give us purpose in life, they ground us and are a part of who we are, losses like believing we will grow old together, we will walk our daughter down the aisle, we expect to be a grandparents and spoil our grandchildren.
Stop and consider this interesting information: How do we as a society put a value on human life?
The State of Florida spends millions per year on death penalty cases.
Florida would save $51 million each year by punishing all first-degree murderers with life in prison without parole, according to estimates by the Palm Beach Post. Because, based on the 44 executions Florida has carried out since 1976, that amounts to an approximate cost of $24 million for each execution. This finding takes into account the relatively few inmates who are actually executed, as well as the time and effort expended on capital defendants who are tried but convicted of a lesser murder charge, and those whose death sentences are overturned on appeal. ("The High Price of Killing Killers," Palm Beach Post, January 4, 2000)
This is an example of the value of human life starting on the lowest rung of our society. Why do we spend so much money on each capital defendant? Because we don't want to have an error that costs a life.
The Federal Government has put the value of human life at $9.1 million according to the EPA, and $7.9 million according to the FDA.
The value of life has gone up in the past few years, according to the calculations of a number of government agencies about how much should be spent to prevent a single death. The Environmental Protection Agency set the value of life at $9.1million last year, quite a bit up from the $6.8 million figure the agency used during the Bush Administration. The Food and Drug Administration says that life is worth $7.9 million last year, another increase over an earlier figure: In 2008, the FDA put an $5 million value on life. The Transportation Agency sets its sights a little lower, quoting values of around $6 million for a life.
High figures or, perhaps, not high enough. These calculations are based on economic theories of cost-benefit analysis according to which ‘differences in wages show the value that workers place on avoiding the risk of death,’ according to an article in the February 16th New York Times:
On a side note about: "Retributive Justice": it can fail to bring peace. Timothy McVeigh was executed for the Oklahoma bombing. And now, years later, after his execution many people are unsettled with the "eye for an eye" justice, and the victims have found little comfort in his execution.
For the most comprehensive book on the subject of Death and Dying, please see: On Death and Dying, by Elisabeth Kubler-Ross, M.D.
For the most comprehensive book about the legal aspects of proving damages in a wrongful death case, see Grief and Loss, Identifying and Proving Damages in Wrongful Death Cases, by Robert T. Hall and Mila Ruiz Tecala, published by Trial Guides, 2009.
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