Under North Carolina law, a wrongful death claim exists when the death of a person is caused by a wrongful act, neglect or fault of another, such that if the injured person had lived, he or she would have had the right to sue for his or her own personal injuries. The basic purpose of the Wrongful Death Act is to put the legal beneficiaries of the deceased person in the same position financially that they would have been had the victim not died.

Although a human life can never be replaced, the often-devastating financial consequences caused by the loss of a loved one and provider can be reduced. A recovery under the Wrongful Death Act can provide financial security, preserve the family home, and ensure the college education of the survivors. In some cases, a wrongful death lawsuit can vindicate the death of an individual and help bring closure to the survivors’ loss. And in some cases, a wrongful death lawsuit can punish a seriously negligent defendant, change behavior, and establish new laws and standards so that a needless tragedy will not be repeated. In these cases, the survivors can take comfort that their loved one had a larger purpose in life and did not die in vain.

What is required to establish a Wrongful Death Claim?

The classic elements required to prove a case alleging simple negligence are: Duty, Breach of Duty, Causation and Damages. The plaintiff always has the burden of proof or persuasion.
Because wrongful death claims are based on statutory law, the claim must be in conformity with the requirements of the Act, codified in North Carolina as General Statute §28A-18-2. The elements of a wrongful death claim include the classic elements of a negligence case, plus the element proving that there are legal beneficiaries entitled to share in any recovery.

In North Carolina, the basis for liability in a wrongful death claim is that the defendant’s conduct, act or omission was tortious, meaning wrongful, and in violation of some legal duty or standard of reasonableness. Thus, intentionally wrongful conduct, as well as simple negligence, is included and can result in liability of the defendant. Examples of common fact patterns that give rise to claims for wrongful death include the negligent operation of a motor vehicle, negligent maintenance of property (premises liability), negligent design or manufacture of products (product liability), and medical negligence.

Regardless of the fact pattern underlying the claim, proving that the conduct, act or omission of the defendant is both the cause in fact (the actual cause) and the “proximate cause” of the person’s death is essential in all wrongful death claims. Proximate cause (also called “legal cause”) requires proving, as a matter of policy, that it is appropriate to hold the defendant liable for the victim’s injuries because the injuries were a “foreseeable” result of the defendant’s conduct. And finally, there must be damages.
What kinds of damages are recoverable, and how are they proved?

The damages that are recoverable in a lawsuit for wrongful death are specified in the Wrongful Death Act. These include:

1. Expenses for care, treatment and hospitalization incident to the injury resulting in death;
2. Compensation for pain and suffering of the decedent;
3. The reasonable funeral expenses of the decedent;
4. The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected:
a. Net income of the decedent,
b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered;
c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
5. Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had he survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5;
6. Nominal damages when the jury so finds.

The Wrongful Death Act states that “[a]ll evidence which reasonably tends to establish any of the elements of damages included . . . or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act.”

Evidence proving the expenses for care, treatment and hospitalization incident to the injury causing death, and the reasonable funeral expenses of the decedent, will be straightforward and requires only the tender of the specific invoices.

The Act allows recovery of compensation for the pain and suffering of the decedent. In order for there to be such recovery, however, the victim must have must have been conscious of their pain and suffering – for however brief a period of time – and even if but for mere seconds. For example, evidence that the victim perceived and was aware of an impending crash in the instant before it happened should be admissible to show that he or she suffered the fear of imminent death. If the victim endured obvious pain and suffering before death, such as by so stating, or by moans or screams of pain, or facial grimaces, the proof is made easier. Similarly, statements by the victim acknowledging their own impending death due to the injury would be proof that the victim suffered the fear and anxiety of the ending of their of life.

Generally, if there is no interval between injury and death, as when the victim is instantly killed with no awareness of the circumstance, there can be no recovery of damages for pain and suffering. Evidence of pain and suffering can be established through medical records, testimony of witnesses who observed or heard the defendant, and from the dying declarations of the victim.

The next category of damages, “present monetary value of the decedent to the persons entitled to receive the damages recovered . . .” embraces three subcategories.

First, the Act provides for recovery of the net income of the decedent. This means the decedent’s total lost future income from all sources, netted of amounts that would otherwise be spent or paid in taxes, and reduced to present value. The kind of recoverable income lost includes salary, fringe benefits, retirement accounts, and the like. Only those amounts that would have gone to or been available for the beneficiaries, but for the wrongful death, are recoverable. The relevant factors on which these damage calculations are based include the decedent’s life expectancy, health and habits, employment, education and training, earnings, and the like.

The second subcategory under present monetary value is for recovery of the “[s]ervices, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered.” This subcategory provides a bridge between the “hard dollar” damages of lost income, and those more intangible damage elements such as society and companionship. Typical damages within this category include the value of running the household: things like cooking, cleaning, doing laundry, mowing the lawn, chauffeuring the children and performing general errands. These services have a monetary value that can be calculated and reduced to present value. Proof of the first and second subcategories under present monetary value can be complex. In general, it is nearly always advisable to engage a consulting expert economist to assist in the preparation and presentation of these damages.

The third subcategory under present monetary value is to compensate for the “[s]ociety, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.” Loss of society and companionship is intangible, and intended to compensate the beneficiaries for the sense of loss, heartache and anguish resulting from the wrongful death. Evidence of a close, loving family, with details of the relationship, and the crush of the loss, is relevant. Letters, cards, photographs and videos, and the testimony of witnesses – both family and friends – should all be admissible to prove the measure of this loss.

Are Punitive Damages allowed in a Wrongful Death Claim?

The Wrongful Death Act allows the recovery of punitive damages, if the victim could have recovered them if he or she had survived. Any punitive damages award must be supported by “clear and convincing proof” of “malice or willful or wanton conduct.” An award of punitive damages in North Carolina is capped at three times compensatory damages or $250,000, whichever is greater. Under certain circumstances, punitive damages are even available against municipalities and governmental entities, although other issues such as sovereign immunity will bear greatly on the issue.

What if there are no actual damages?

When actual damages are nonexistent, the Wrongful Death Act provides that the jury may award nominal damages. The Courts have determined that nominal damages are required when the jury finds that the plaintiff in a wrongful death claim has suffered no compensable loss. It would be rare that there would be absolutely no actual damages at all, but it could happen, for instance, when a young child is killed instantly. Even in such cases, though, other categories of damages would likely be available, and even if those damages were modest.

Who is the proper party to bring a Wrongful Death Claim?

The claim for wrongful death can only be brought by the “Personal Representative” of the decedent – either the Administrator (if the decedent died without a will) or the Executor/Executrix (if the decedent died with a will naming an Executor). The Personal Representative has the exclusive right to bring this claim, to the exclusion of beneficiaries, heirs, legatees, or survivors. Oftentimes, however, the Personal Representative will be a surviving spouse or parent. Even if the decedent died without any assets, an Estate file must be opened naming a Personal Representative in order for a wrongful death claim to be brought.

How are proceeds from a Wrongful Death Claim recovery distributed?

During the prosecution of a wrongful death lawsuit, the Personal Representative may pay reasonable and necessary expenses, though not including attorney’s fees, in bringing the action. Once a recovery is obtained, by settlement or payment of judgment following trial, it is paid out in the following priority: First, any expenses advanced are paid back to the estate. Second, attorney’s fees are paid. Third, burial expenses of the deceased are paid, and reasonable hospital and medical expenses not exceeding $4500 incident to the injury resulting in death are paid, except that the amount applied for hospital and medical expenses shall not exceed 50% of the amount of damages recovered after deducting attorney’s fees.

The balance is distributed according to the Intestate Succession Act, as if the decedent died without a will, even if in fact he or she did. The recovery is not liable to be applied as assets, or in the payment of debts or legacies, except for the burial and hospital expenses mentioned.

Although the wrongful death statute limits payment of hospital and medical expenses incident to the injury resulting in death to $4500, other laws, such as ERISA, may compel repayment of medical expenses from the recovery achieved in the wrongful death lawsuit.

The Intestate Succession Act sets forth the statutory distribution of the net proceeds from a wrongful death action. This scheme of distribution of wrongful death proceeds applies, regardless of whether the decedent died with a will distributing their estate in another manner. Thus, certain individuals may be entitled to share in the proceeds, even if they were not close to or had strained relations with the person who died.

For purposes of wrongful death claim proceeds, the Intestate Succession Act formula for distribution is determined by the class and number of survivors, and the amount of proceeds to be distributed. For an example, if the decedent is survived by a spouse and two children, and the net distributable amount of proceeds is $500,000, then the distribution would be as follows: The surviving spouse’s share would be the sum of $30,000 plus one third of the balance of the proceeds, or $186,666.67. The share of each child would be one half of the net amount not distributable to the surviving spouse, or $156,666.66 each. If any person entitled to distribution of wrongful death proceeds is a minor – a person under the age of eighteen years – then any settlement of a wrongful death claim must be approved by the Court, through the minor’s Guardian ad Litem.

What are the defenses in a Wrongful Death Claim?

In defense of a claim for wrongful death, an insurance defense lawyer may allege any kind of defense available in general civil lawsuits, ranging from seeking dismissal for lack of jurisdiction, failure to state a claim, that the lawsuit is barred by the statute of limitations, and practically anything else he or she can think up. We have seen cases where a defense lawyer denied the existence of an insurance policy covering a governmental unit’s liability, when it was painfully obvious that insurance existed and that it applied. As trial lawyers, we come to expect defense attorneys to deny, deny, and deny some more, and so we stand ready and willing to put on our proof. Rarely does a defendant simply admit that they were negligent. Wrongful death cases are no different, but there are some special factors that may give rise to a valid defense and must be carefully considered.

Because a claim for wrongful death is derivative of the victim’s rights – that is, the claim exists only if the injured person would have had a claim for their injuries, had they lived – any defenses the defendant would have to such a lawsuit brought by the injured person will also be available in a wrongful death action brought by the Personal Representative.

For example, if any negligence of the victim caused or contributed to his injuries (and death), then the defendant may raise the defense of Contributory Negligence, which is the rule in North Carolina. Under the doctrine of contributory negligence, any negligence of the victim, whether simple negligence (such as a lack of reasonable care for the person’s own safety) or negligence per se (violation of a statute), is a complete bar to recovery. Contributory negligence may be overcome if the defendant had the “last clear chance” to avoid doing injury, or if the defendant’s conduct amounted to “willful and wanton” negligence. Though not expressly so held by any North Carolina appellate court, the doctrine of Assumption of the Risk may also bar a claim for wrongful death.

A defendant will often attack various elements or all elements of the plaintiff’s claim, alleging, for example, that there was no duty of care, that there was no breach of such duty, that there was no cause in fact or proximate cause connecting defendant’s conduct to the injury and death, and/or that there are no damages. Where fault and cause are clear, there are likely going to be damages in some measurable amount. Often, the main focus of the defense is simply trying to reduce the claimed damages, by whatever methods it can try.

What is the Statute of Limitations for a bringing Wrongful Death Claim?

The statute of limitations in North Carolina for a wrongful death claim is two years, which is measured from the date of the victim’s death. Nonetheless, because the action is derivative, the claim must be brought within the time period during which the victim could have brought a claim for injuries, had they lived. If the action would be barred by the statute of limitations if the victim were still alive and had sued, then a wrongful death claim based on those injuries also will be barred. For example, if the victim were injured in an accident but lingered for four or five years and then died from those injuries, the claim would be time-barred by the applicable three year statute of limitations for negligence actions.

For a wrongful death claim to be viable, it must brought within the two year statute of limitations for wrongful death actions (measuring from the victim’s date of death), and within the applicable statutes of limitations for a claim alleging the infliction of the injuries causing death, measured by whether the injured person, if still alive, could have brought that claim. In rare cases and on unusual facts, it is possible that a wrongful death claim could be brought more than two years after the victim’s death as, for example, where there was no estate administered because the decedent left no property, but had a minor child. It is possible that the child’s claim for the wrongful death of the parent would be tolled until the child reached the age of majority.

Determining whether the wrongful death claim is still viable can be tricky in rare circumstances, or when a long time elapses between the act, neglect or fault causing the injury, and the death of the victim, particularly when the underlying claim is for medical negligence, and medical treatment was ongoing.