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Claim for Wrongful Death in North Carolina
In North Carolina, a claim for wrongful death is defined as the wrongful act, fault, or neglect of another which causes death.
In many ways, a North Carolina wrongful death claim is like an ordinary claim of negligence. Meaning, if the deceased person were still alive, they would have a claim against the at-fault party. However,while a typical claim of negligence causes bodily injury or property damage, a wrongful death claim results in an individual’s death. For this reason, a wrongful death claim is vitally important for families who are morning the loss of a loved one brought about by the negligence of another.
In theory, North Carolina’s wrongful death statute attempts place the deceased person’s legal beneficiaries (often a spouse, children, or parents), in the same, or as close to the same, position they would have been in had the victim not died. Of course, it is never possible to replace a human life. A monetary recovery may seem an insignificant response to a loved one’s death. Nevertheless, the wrongful death statute acts as a mechanism to provide relief in a difficult and distressing time. Whether the wrongful death statute is used as a form of vindication, as justice against the wrongdoer, or simply as relief to those now worried about accumulating bills and obligations, a claim for wrongful death may be pursued.
North Carolina’s Wrongful Death Statute
North Carolina wrongful death cases are controlled by an important statute, which carefully outlines the requirements of a claim for wrongful death. The specific statute that dictates North Carolina wrongful death cases is N.C. Gen. Stat. § 28A-18-2 (Death by wrongful act of another; recovery not assets).
Often, a wrongful death claim contains a common law claim of negligence. In North Carolina’s common law, a claim of negligence has four key elements:
- Duty;
- Breach;
- Causation; and
- Damage
Nevertheless, other theories of negligence or wrongdoing may also be used as the basis for a wrongful death claim, such as medical malpractice or medical negligence, products liability (i.e., a negligently designed or manufactured product), or premises liability (i.e., negligently maintained property). Ultimately, a key to finding the negligence or wrongdoing that underlies a wrongful death claim is in identifying a DUTY, which is a particular standard of care that must be upheld, and identifying the BREACH of that duty, which is the failure to uphold the standard of care.
If the first two elements, duty and breach, are found, the next step in linking the breach to a person’s damages through CAUSATION. In other words, it must be established that a plaintiff’s damages were caused by the defendant’s breach of their duty. There are two types of causation in North Carolina law: “actual cause” and “proximate cause.” Actual cause is what is commonly thought of as causation; it is “cause in fact” or “but for” causation. In other words, it must be established that the plaintiff would not have been injured but for the negligence of the defendant. Proximate cause is entirely different than actual cause; nevertheless, it is absolutely critical to a case. Proximate cause can be articulated as “foreseeability.” In other words, if a defendant’s actions actually caused the plaintiffs damages, but the plaintiff’s damages were not “foreseeable,” then causation is not established and negligence in not actionable.
However, if causation is established, along with duty and breach, then the only remaining element for a wrongful death claim is DAMAGES. As with typical negligence claims, damages must be established for a claim to be actionable. To be more specific, there is no claim if the plaintiff wasn’t actually harmed. There is no real claim if, despite the defendant breaching his or her duty, the defendant did not harm or injure the plaintiff. Therefore, damages is vital to a claim for negligence, and therefore vital to a claim of wrongful death.
Damages in a North Carolina Wrongful Death Case
The subject of damages is where, in North Carolina, wrongful death cases take on a unique complexity. North Carolina’s wrongful death statute lists very specific types of damages that may be recovered in a wrongful death case. The damages section of the wrongful death statute is critically important because it limits and mandates exactly what type of recovery a plaintiff may have in their wrongful death case.
According to North Carolina’s wrongful death statute, the following damages are recoverable for death by wrongful act:
- 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;
- a) Net income of the decedent,
- b) Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,
- c) 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;
- Nominal damages when the jury so finds.
To better understand these six types of damages, it is best to consider them each in turn.
1) Expenses for care, treatment and hospitalization incident to the injury resulting in death
This first category of damages is more straightforward than some others in the statute. As the language of this subsection states, the statute provides that plaintiffs may recover for the deceased person’s medical care, treatment, and hospitalization. If the deceased person did not incur expenses of this nature, then this subsection is irrelevant. If, however, the family members of a loved one are now facing unexpected medical bills for the care, treatment, and hospitalization of the loved one prior to their passing, this particular subsection of the statute may be used to provide relief.
2) Compensation for pain and suffering of the decedent
This section, like the section above, only applies in certain situations. If the loved one was conscious of their pain and suffering, even for a brief second before their death, this subsection may be used to recover for the loved one’s pain and suffering. This statute has even been interpreted to include the loved one’s perception or awareness of their imminent death. For example, in the case of an automobile accident, evidence that the deceased person was aware of the impending accident may be used as evidence of pain and suffering on the part of the deceased person.
3) The reasonable funeral expenses of the decedent.
Like the first category, this category of damages is straightforward. The wrongful death statute permits compensation for reasonable funeral expenses of the deceased loved one.
4) The present monetary value
This particular set of damages is more complex, and often requires more investigation into the deceased person’s life, income, and family. It deals with the practical damages to plaintiff instead of to the deceased. The subsection specifies three sub-categories of damages.
- a) Net income of the decedent
As the title suggests, this section provides for the lost income of the deceased person. This section is meant to include all means of future income, including lost salary, benefits, retirement account, and other sources of income.
- b) Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered.
This sub-category includes a type of wrongful death damages that are difficult to quantify because they concern intangible qualities of life. For example, this sub-category considers such things as helping with household chores, cleaning, cooking, running errands, doing yardwork, and helping around the house.
- c) Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.
Like the category above, this sub-category seeks to quantify the intangible qualities of life. These types of damages can be had by a spouse, children, or parents of the deceased person. Typically evidence is required that shows a close familial ties between a deceased person and their spouse, children, or parents.
5) Punitive Damages
In wrongful death cases, punitive damages are permitted only if punitive damages would have been available to the deceased person had they survived. In North Carolina, punitive damages can be awarded in cases showing “malice or willful or wanton conduct.” However, North Carolina caps punitive damages at three times the compensatory damages, or $250,000 (whichever is greater).
6) Nominal Damages
Nominal damages might be available when no actual damages exist. However, wrongful death cases involving no actual damages are extremely rare.
For more information, feel free to look through our North Carolina Personal Injury FAQs.
Call Kreger Law Firm at (888) 820-5885 to speak to a North Carolina Personal Injury Lawyer today