• What is a Wrongful Death Lawsuit?
  • July 4, 2013 | Authors: Sean P. DuBois; Joshua Shulman
  • Law Firm: Shulman DuBois LLC - Portland Office
  • Wrongful death claims are complicated, but the point of this book is to help you learn enough about the process to decide whether pursuing a case is in the best interest of you and your family, and if so, to help you understand the steps. Because it is complicated, many questions arise in a wrongful death case. The most basic thing to understand is that a wrongful death claim is a civil lawsuit - as opposed to a murder case, which is a criminal lawsuit.

    A criminal case is separate and independent from a civil case.  Some deaths result in only a criminal case (murder or manslaughter), but no civil case.  Others may result in a civil case but no criminal case.  Still others may result in both.

    For example, in the famous O.J. Simpson case, a criminal case was brought, and then afterwards a civil case was brought. Simpson was found not guilty in the murder trial, but was held liable in the civil, wrongful death case. One of the reasons this was possible is because a criminal murder charge must be proven “beyond a reasonable doubt,” whereas a wrongful death action only needs to show by a “preponderance of the evidence” that it is “more likely than not” that the defendant caused the death - either intentionally, recklessly, or simply by being careless or negligent.

    Wrongful death claims are easier to prove in a court of law because they do not seek to put someone behind bars; they only seek money. Though it’s quite possible the person being sued may end up in prison if criminal charges are brought as well, the cases are separate.

    What exactly is a “wrongful death?”
    Wrongful death is when a negligent, reckless, or intentional act by a person or company causes the death of another. Murder would certainly qualify, but so would a car crash, even if the bad driver who caused the death did not mean to hurt anyone, but was merely careless.

    Common Circumstances of Wrongful Death Include:

    • Auto Collisions
    • Workplace Accidents
    • Airplane/Boating Accidents
    • Medical Malpractice
    • Dangerous or Faulty Products

    One premise behind a wrongful death lawsuit is that, as well as killing a person, the family members who have been left behind have also been injured emotionally, psychologically, and sometimes financially. The Oregon law that allows family members to make a wrongful death claim against the negligent people or companies that caused the death is Oregon Revised Statutes (abbreviated “ORS”) 30.010-30.100.

    Who can bring a wrongful death claim?
    Generally speaking, it’s the spouse, parent, or child of the victim who can bring a wrongful death claim in Oregon. Just a single person brings the suit on behalf of all the beneficiaries (a “beneficiary” is a person who is legally entitled to receive money from a wrongful death claim. This person who brings the claim is known as the “Personal Representative.” The Personal Representative is usually chosen by the family, and is often a family member. But even though only one person technically brings the lawsuit, all of the family members usually share in any money that the wrongdoer ends up paying.

    How are damages determined?
    This is perhaps the most complicated issue in Oregon wrongful death laws. So many factors have to be taken into consideration, including:

    • Medical bills and burial expenses.
    • The loss of wages the person would have earned had they lived. This is usually determined by an expert economist who will take into account the deceased person’s education, training, prior tax returns, and more.
    • Pain and suffering of the deceased person between the time of the accident and the time of death.
    • Compensation to the victim’s spouse, children, step-children, parents, and other family for loss of companionship, society, and pecuniary losses.
    • Compensation to the victim’s estate for pecuniary losses. (“Pecuniary” is a legal term that includes loss of money, but can include more than this as well.)
    • In cases where extreme negligence, recklessness, or intent can be proven, punitive damages may also be awarded in Oregon wrongful death cases.

    Who receives the award? Must it be shared by the entire family?
    Like most things in law, this is not always clear cut. The law simply states that proceeds shall be distributed “in accordance with each beneficiary’s loss.” In many cases, the beneficiaries can all agree to a distribution. If this is not possible, a judge will determine how to split up the proceeds among the beneficiaries.