If there is ever a time where you must file a wrongful death lawsuit, legal niceties are the very last things that will be on your mind. However, there are particularities that must be observed in filing and successfully bringing a wrongful death suit.
Definitions and Exclusions
The relevant section of law regarding wrongful death is South Carolina Code of Laws Sec. 15-51-10, and it defines wrongful death specifically as the “wrongful act, neglect or default” by another person. The important thing to remember, however, is that the mere existence of a wrongful act is not enough to sustain a suit for wrongful death. The act, neglect or default must be something for which the person would have been able to bring suit had they lived. In other words, an action that caused the person mere inconvenience, or caused temporary harm, would not be enough to hold someone liable for wrongful death. For example, if a person is in a car accident, and suffers broken bones and a collapsed lung, they could bring a personal injury suit, under a theory of negligence law. If that person is instead killed, their family and/or executor may bring a wrongful death action.
There are two types of wrongful death actions: a true wrongful death action, and a survival action. A wrongful death action is brought by the executor (usually, the administrator of the deceased person’s estate). A survival action is brought by the family of the deceased person. Each suit is brought under a different legal theory, and asks for different types of damages. It is important to note that under South Carolina law, only a very specific group of people may bring a survival action – namely, surviving spouses, children and parents, or the deceased person’s heirs at law if there are none. Other family members are barred from filing suit.
Be advised that in South Carolina, court approval is required for any settlement reached in a wrongful death or survival action. This is ostensibly to ensure that the family of the deceased is not victimized twice – once by the death itself, and again by a lack of understanding or malice on the defendant’s part in settlement negotiations.
Damages in Wrongful Death Cases
The other major point that many people fail to appreciate is that the damages that can be asked for in South Carolina wrongful death cases will differ at least slightly from those in other states, because the state’s wrongful death statute is fairly strict about what types of harm are actionable and how the damages are parceled out. In South Carolina, damages are obtainable for the causes of action that might be expected, such as pain and suffering, lost wages, and funeral expenses. However, the law states that damages, when awarded, are payable as if the deceased had died intestate, as per SC Code Sec. 15-51-40. In many other states, the issue of damage apportionment is simply left to the family. This can make a very big difference to some family members, who may or may not receive enough money to live in a manner similar to how they have become accustomed.
A Legal Professional Can Help
Losing someone can turn your entire world upside down. In that situation, help is not only handy, it is necessary. The North Charleston wrongful death attorneys at Callihan & Syracuse are compassionate, experienced lawyers with a long history of success in these matters. Contact us today to discuss your options.