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Hastings & Hastings Guide to Wrongful Death Claims

June 16, 2016 Hastings and Hastings

Hastings & Hastings, founded by David Hastings in 1979, has been protecting the rights of accident victims in Phoenix for over 35 years. At Hastings & Hastings, we know that suffering an accident can be one of the most stressful events someone will go through in their life. Accident victims need someone by their side, helping them put their lives back together while fighting for their rights. Insurance companies do not have your best interests in mind. They want to resolve your case quickly and cheaply.

At Hastings & Hastings, we spare no effort as we fight to make sure you receive the compensation you deserve for suffering an accident or experiencing a hardship. We understand that recovering from an accident is about more than just healing from injuries. Accidents cause mental, emotional, and physical distress. Without proper representation, you may not be fully compensated for the scope of the damages that have been inflicted.

Every personal injury case is different and thus requires the personal attention of an experienced, dedicated, and skilled attorney. At Hastings & Hastings, we have experience handling a wide variety of personal injury cases including but not limited to car accidents, slips and falls, dog and animal bites, motorcycle accidents, and wrongful deaths.

One of the primary obstacles facing accident victims often preventing them from pursuing a personal injury claim is a lack of knowledge that they have a valid case. At Hastings & Hastings, we believe that nothing should hold accident victims back from pursuing compensation and protection. To that end, provide detailed information regarding the types of personal injury claims for which we provide representation. Today, we will go over wrongful death claims.

What is a Wrongful Death Claim?

To begin with, we will explain exactly what a wrongful death claim is. Wrongful death lawsuits are claims brought against a defendant who has allegedly caused, whether through negligence or intentional harm, the death of another individual. Wrongful death claims are put forth by a representative of the estate of the deceased individual.

But, what exactly is the “estate” of a deceased individual?

An estate is the body of property, money, and other assets which have been left behind by a deceased individual. The representative of an estate is either the deceased’s “executor”, or “administrator.” The representative is termed “executor” if they were expressly granted power of the estate in a valid will. Elsewise, they are termed “administrator.” In the case that there is no valid will or no will at all, a court of law will have the power to appoint a qualified individual as an administrator.

In the case of a wrongful death claim, the administrator or executor of the estate files a claim on behalf of the family and estate of the deceased.

Of course, not all deaths are wrongful deaths. How is a death deemed a wrongful death? As we have previously discussed, a death may be considered a wrongful death if the cause of death can be attributed to another individual’s negligent behavior or intentional actions. We will go into more detail regarding wrongful deaths by negligence and intentional action next.

Wrongful Death Caused by Negligence

As we have previously discussed, wrongful death cases are often attributed to the negligence of an individual which resulted in an accident which caused the death of the victim. In most states, including Arizona, if a case would have been deemed a personal injury matter except that it resulted in the death of the victim, the matter is then one of wrongful death.

Essentially, wrongful death lawsuits are often directly linked to a personal injury matter. One such matter that may result in the death on an individual is a car accident. If a victim dies as a result of a car accident, or as a result of injuries suffered during a car accident, a wrongful death lawsuit may be brought forth. However, negligence must be proved.

Proving Negligence

Proving negligence in a wrongful death case is much the same as proving negligence in a personal injury matter. The plaintiff, with the assistance of an attorney, must establish three things: duty, breach of duty, as well as causation and damages. Next, we will cover how to establish each of these three elements.

Duty: For a defendant to be found liable it must be established that they owned the deceased a duty of “due care.” The exact definition of due care will change based on the circumstance of the instance. In effect, an individual obliged to provide due care has a duty to keep another individual safe or to avoid actions which would cause harm to another individual.

When proving negligence in a car accident, a plaintiff will argue that the defendant held a duty of due care to the deceased individual to operate their car in a safe and responsible manner. Essentially, everyone on the road possesses a duty of due care to ensure the safety of others.

Breach of Duty: Once a plaintiff has established that the defendant did indeed possess a duty of due care, they must then establish that the defendant then failed to uphold that duty. In the instance of a car accident, a breach of duty may mean that the defendant failed to keep their eyes on the road, or drove while intoxicated, or drove aggressively or recklessly.  Proving breach of duty is similar to proving fault.

Causation and Damages: Depending on the exact facts of the case, proving causation can be straight forward, or quite complicated. Essentially, in proving causation, the plaintiff must establish that the defendant’s breach of duty caused the death. If the incident was a straight forward accident involving two vehicles, this may be easy. If it was more complicated collision, perhaps involving more than two vehicles, this could become more complicated. Damages in a wrongful death lawsuit are presumed, although the process of establishing the exact value of damage is more involved.

Establishing Damages in a Wrongful Death Case

It is important to note that wrongful death cases are strictly civil matters, which means that damages will be expressed in financial or monetary loses. Damages will not result in jail time or other legal penalties as with a criminal case. Damages in a wrongful death case are typically divided into two categories, those inflicted upon the estate of the deceased, and those inflicted on the deceased’s family. In many cases these categories will overlap.

Damages which may only be inflicted to the family include but are not limited to emotional pain and suffering, the loss of care, companionship and guide, and the loss of household services.

Damages which may affect the family or the estate include funeral expenses, value of lost wages and benefits, pain and suffering endured by the deceased, as well as any property damage that may have occurred in the accident. If the deceased did not die immediately, additional damages may be allowed under survival laws. Under survival laws, damages may continue to accrue during the period of time between when the individual suffers fatal injuries to the time they pass away. These damages may include medical expenses, as well as pain and suffering.

Arizona’s Wrongful Death Statutes

As there are no federal laws regulating wrongful death lawsuits each state must have its own individual statute. In Arizona, a wrongful death lawsuit may be brought to court if the deceased individual could have filed a person injury claim based on the event that caused their death.  Arizona’s wrongful death statute can be found in the Arizona Revised Statutes Section 12-661. It reads as follows:

When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to murder in the first or second degree or manslaughter.


To learn more about wrongful death lawsuits or to schedule a free legal consultation with one of Hastings & Hastings’ experienced attorneys, call (480)706-1100 today.