What is Wrongful Death?

Under Massachusetts law, if a person dies or is killed because of the negligence or wrongdoing of another, the surviving members of the victim’s family can sue the person responsible for their loved ones death under a legal claim for “wrongful death.” A wrongful death claim is a civil action seeking monetary damages from the negligent party. This is not a criminal action. No one is going to jail.

The attorneys at Burns & Jain understand that losing a family member can be catastrophic for a spouse, a parent, a loved one, a family and their community. In addition to the devastating emotional loss, there can also be a financial loss after a death. Of course, money cannot replace the love, companionship and society after a loved one dies. However, it can help replace much needed income during a difficult time. That’s why we work hard to hold the responsible party, and their insurance company, legally responsible for negligence in death cases throughout Massachusetts.

Our attorneys also know that the process of pursuing a wrongful death claim can be stressful for the family. Family members must often deal with investigations, criminal prosecutions of the wrongdoers, and giving testimony in the penalty phase of criminal prosecution against the person responsible for the death of their loved one. This is especially true if the death is associated with a motor vehicle accident involving negligent driving or alcohol. We help families just like yours through this stressful time with grace and ease.

Who can file a wrongful death claim?

The wrongful death law in Massachusetts is very specific about who can bring wrongful death claims.

To file a claim for wrongful death, you must administer the estate of the deceased in Probate Court. Only the Personal Representative, Administrator or Executor can file the claim.
Why? The courts don’t want every family member to bring a separate lawsuit. This would be too burdensome on the court and the defendant. Instead, there can only be one plaintiff, the personal representative, executor or administrator of the estate. Other loved ones must go through the estate to secure a portion of the proceeds of any wrongful death claims.

What is the statute of limitations in wrongful death cases?

There is a statute of limitations in wrongful death cases. This means that a lawsuit must be filed within a set amount of time. If you fail to file the lawsuit within that time, you are barred from ever filing a claim against the person or company that caused the wrongful death.

The time limit imposed by the statute of limitations can vary. In general, there is a three-year statute of limitations on filing a lawsuit for negligence. However, cases against the state or local governments have a different requirement. Filing for Probate of an estate has yet other requirements.

This is why it is critical to retain an experienced attorney like those at Burns & Jain as quickly as possible for personal injury, wrongful death and any serious injury case. Missing the deadline to file can mean suffering unnecessary hardship for your family.

Negligence in Wrongful Death Cases

In order to be held liable for wrongful death, the defendant must have done something wrong that resulted in the death of your loved one. The defendant’s failure to use reasonable care, resulting in injury or death to another, is called negligence. Whether or not that person’s negligence rises to the level of liability depends on the law. Sometimes accidents happen, people are hurt, and no one is to blame.

However, sometimes that accident occurs because someone did not exercise due care. Either the defendant did not do something a reasonable person under those circumstances would do, or the defendant did something a reasonable person would not do. In that case we need to gather evidence to determine the defendant’s level of negligence.

Like all civil cases, there are multiple functions a Massachusetts wrongful death attorney will perform at this stage. They include, but are not limited to:

• Securing ambulance and medical records;
• Locating and taking photographs;
• Finding state or federal agencies (such as the police or OSHA) that have completed studies of the facts in this instant case; and
• Researching other similar events or the parties involved. For this stage of the case, it is critical that we gather as much information as soon as possible.

Our main witness, the victim, is deceased, and others are not necessarily going to remember the facts or secure the photographs and documents we need as evidence in the case.

This second phase often involves locating and retaining expert witnesses. This could be a physician, a collision expert, an economist or some other expert in his or her field needed to prove negligence.

Damages in Wrongful Death Cases

The law in Massachusetts for wrongful death allows for compensation damages, which can include some or all of the following measures of damages:

Economic or easy to calculate damages
• Medical bills from the time of the incident to death
• Funeral expenses
• Loss of earning capacity, including benefits to dependents

Non-economic losses
• Conscious pain and suffering of the decedent
• Loss of society and companionship to the family and dependents
• Loss of consortium to the spouse

Punitive damages

Massachusetts allows for punitive damages if the conduct of the negligent defendant was “malicious, willful, wanton, reckless or grossly negligent.”

The Consumer Protection Statute, MGL Chapter 93A, also allows for multiple damages and attorney fees if the defendant is found to have violated the law.

Wrongful Death and Serious Injury Claims in Same Accident

Many times in wrongful death cases the death stems from a motor vehicle accident, fire or some other catastrophe. In these cases, there can be additional serious injuries to other people, often to friends or family members. This can add a level of complexity to these matters that require the assistance of an experienced attorney.

For example, there may only be limited insurance coverage. How does it get divided up? Is a wrongful death case worth more than a long-term, permanent injury? These issues can become significant and troubling problems to resolve among friends and family. Only an experienced attorney like those at Burns & Jain can evaluate the pain and suffering and lost earnings of all of the parties involved to assist you in evaluating how to settle a case, or how to approach a jury.

Hire an Experienced Wrongful Death Attorney

You want an attorney experienced in the wrongful death law and probate law to effectively prosecute your family’s claims. I have been helping families recover monies in wrongful death cases for over 25 years. We have experience in representing families who have lost loved ones in cases ranging from house fires, truck accidents, to the negligent maintenance of premises. To contact a wrongful death attorney please call us at 617-7-227-7423 or contact us through our website.