WRONGFUL DEATH CLAIMS IN NORTH CAROLINA
We help families who suffer the unexpected, tragic loss of a loved one for which we believe a person or corporation is legally responsible. Although families deserve time to grieve without being consumed by otherwise undesirable tasks, unfortunately, it often is necessary for certain actions to be taken to preserve legal rights.
The laws are complex surrounding the legal rights afforded to those who seek justice through reasonable compensation for the wrongful death of a loved one. Furthermore, the process to advance such legal claims is complicated, time-consuming, and often confusing. However, our firm has the knowledge, resources, and dedication to navigate families through such process during what possibly is the hardest time of their lives.
The decedent’s Personal Representative has the authority to assert claims
When the death of someone is caused by certain acts or omissions constituting negligence, as discussed below, the personal representative of the decedent may bring an action (lawsuit) for damages to be recovered from the negligent person or corporation, which also is discussed further below.
Normally, the person to be qualified and appointed by the court to act as the personal representative is the executor (male) or executrix (female) named in the decedent’s will or, absent such will, the surviving spouse or a family member of the decedent who then would be appointed to serve as the administrator (male) or administratrix (female).
Generally speaking, negligence is the failure to use the reasonable care of an ordinarily prudent person, but in specific contexts, such as professional malpractice, negligence typically is based either upon violations of applicable standards of professional care or the failure by the professional to use his or her best judgment. Accordingly, such negligence would constitute the wrongful act or failure to act giving rise to claims for wrongful death.
However, and most important, those injured in North Carolina must be aware of a legal doctrine that can completely bar a recovery from even persons or corporations who are found to be negligent. The doctrine is referred to as contributory negligence.
In essence, there is no basic difference between negligence on the part of the person or corporation alleged to be responsible causing injury and any negligence found to have occurred by the injured person, which is simply referred to as contributory negligence. Accordingly, the injured person also is required to use the reasonable care of an ordinarily prudent person, and the failure to do so constitutes contributory negligence. Ultimately, if such contributory negligence was also a cause of the incident giving rise to the injuries, then by law such contribution would be a complete bar to any recovery. In reality, a jury is permitted to find that an injured person was contributorily negligent regardless of the relative, apparent degree of contribution. Accordingly, a technical 1% finding of contributory negligence could be a complete bar to any recovery for the injured party.
Although the doctrine of contributory negligence is often viewed as being too harsh and inequitable, it is alive and well in North Carolina and a few other states. There are exceptions or counter-defenses to the doctrine, including the potential gross negligence of the alleged responsible party and the doctrine of last clear chance. However, such legal theories are often difficult to apply, and a proper analysis requires a thorough, detailed understanding of the facts and circumstances giving rise to the subject injuries.
Beneficiaries of the monetary recovery from a Wrongful Death action
North Carolina General Statute §28A-18-2 – Death by wrongful act of another; recovery not assets – is commonly referred to as the Wrongful Death Act. As the titled states, and most significant, monetary proceeds from a wrongful death claim do not become estate assets, and, consequently, they are not subject to any provisions contained in the decedent’s will, if such existed, including provisions identifying devisees.
Devisees are persons named in a will to receive certain real or personal property. In contrast, heirs are those who obtain real or personal property by law when a decedent dies without a will (i.e., intestate). However, the persons who are entitled to receive shares of the monetary recovery from a wrongful death action normally are referred to as the beneficiaries.
Specifically, the wrongful death claim monetary proceeds would be distributed to the person or persons who otherwise qualify as the decedent’s heirs as such are defined by Chapter 29- Intestate Succession, N.C.G.S. §29-1 et seq., regardless of whether or not the decedent had a will or said beneficiaries also were named devisees. Furthermore, the respective shares of the monetary recovery to be paid to each beneficiary is governed specifically by statute.
Damages that are recoverable from a Wrongful Death action
The Wrongful Death Act specifically provides for the following categories of compensation which are legally referred to as damages*:
(b) Damages recoverable for death by wrongful act include:
- Expenses for care, treatment and hospitalization incident to the injury resulting in death;
- Compensation for pain and suffering of the decedent;
- The reasonable funeral expenses of the decedent;
- The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;
- Net income of the decedent,
- Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,
- Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
- Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5; and
- Nominal damages when the jury so finds.
[*See: § 28A–18–2. Death by wrongful act of another; recovery not assets, as effective through the end of the 2015 Regular Session and through 2016-3 of the 2016 Extra Session of the General Assembly.]
Limitation Period on Action for Damages arising from Wrongful Death Claim: Two-years
Although there are numerous exceptions that may be applicable to any particular fact situation, in most cases an action for damages on account of the death of a person caused by the wrongful act, neglect or fault of another under the Wrongful Death Act must be filed within two years from the decedent’s date of death.
Wrongful Death claims are different from Survival Action claims
It is important to emphasize that wrongful death claims are separate and distinct from any prior claims which survive the decedent’s death due to injuries that arose before the decedent’s death but which are not injuries that were legally caused the decedent’s death. Such prior claims are referred to as survival claims and are governed by North Carolina General Statute §28A-18-1. Survival of actions to and against personal representative. A prime example of a survival action claim would be one where the decedent was injured in a motor-vehicle collision due to the fault of another driver, but the decedent died from unrelated causes prior to obtaining compensation for such collision injuries.
Lastly, as to either category of claim rights, the personal representative technically would be representing the decedent’s estate (i.e., the formal identification of the total assets and liabilities left by a person at death). Unlike monetary recoveries arising from wrongful death claims, recoveries from survival actions do become estate assets, which could pose such funds to creditor claims.
The above information is neither intended to be formal legal advice nor a substitute for legal consultation with a qualified attorney, but rather such is provided to offer a general understanding of the framework within which wrongful death claims are advanced and governed in North Carolina.
We encourage you to contact us for a free initial consultation to discuss your matter. We understand the difficulties, tough decisions, and potential hardship you and your family may be facing.
We are here to help.