When someone dies due to the wrongful or negligent conduct of another person, their surviving family may bring an action for wrongful death. It is especially agonizing when the deceased is a child. In South Carolina, however, there are certain rules over what you as parents may or may not bring suit for. Some damages are only recoverable by the estate, and some by the family. It is important to understand the interplay between the legal niceties, to ensure that you and your family have the best chance possible to receive appropriate compensation.
Wrongful Death Claims vs. Survival Actions
It is important to differentiate between the two types of wrongful death actions. A survival action is a suit brought on behalf of the deceased, suing for damages that they would have been able to sue for had they survived. For example, if a person is killed in a car accident, a survival action might bring suit for damages in negligence and infliction of emotional distress. These types of damages are not available in a wrongful death suit, because they are only recoverable by living plaintiffs.
A wrongful death suit, meanwhile, is brought on behalf of the surviving family members of the deceased, seeking damages for things like funeral expenses, loss of support, and emotional pain and suffering. These are not damages that the deceased could have recovered if they had lived through the event; there is a separate process for those situations. Usually, the family brings wrongful death suits to trial.
When You Have Lost A Child
There are some specific caveats that only apply to the loss of a child under South Carolina law. For example, something to keep in mind is that you may have few tangible losses to claim if your child was a minor at the time of their passing, since a minor does not work and contributes no money to the household. However, the South Carolina case of Lucht v. Youngblood, 266 S.C. 127 (1976) holds that parents who lose a minor child suffer “certain intangible losses,” so your right to bring suit is still preserved. The case law essentially takes note of the fact that no amount of money will ever bring your child back, but it can help to get one’s life back on track in a financial sense.
Also, normally, in wrongful death lawsuits, only specific family members may recover under South Carolina law: parents, children, and spouses of the deceased (if there is a spouse and/or children). If none of these parties exist, then the person’s heirs at law (in other words, the people who would receive the deceased person’s property under intestacy laws) may bring the action. When parents lose a child, they may be able to recover even if the child was an adult – under Lucht, parents always suffer “intangible losses.” However, if parents abandon a child before the age of 18, they cannot under any circumstances bring suit or profit from a wrongful death suit brought on the child’s behalf.
Enlist A Compassionate Professional
When you are dealing with the death of a loved one, especially of a child, it is unbelievably difficult to get through on one’s own. The understanding and patient North Charleston wrongful death attorneys at Callihan & Syracuse understand that at a time like this, you need all the help you can find. Give us a chance to help your family get back on its feel. Contact our office for a free consultation.