A "wrongful death" occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. Under the common law the death of the wrongdoer caused an abatement of any cause of action in tort against him. Therefore, generally, in the absence of a statute expressly so providing, the right of action for death by wrongful act does not survive the death of the wrongdoer; that is, a tort action abates upon the death of the wrongdoer at any time before the action is ready for rendition of a final judgment, in the absence of a statute expressly providing that the cause of action shall survive.
As a result, every jurisdiction in the United States, including Nevada, provide “wrongful death” statutes that allow the decedent's family members to recover damages for the death of their loved one. However, a suit for wrongful death may `only be brought by the personal representative of the decedent's estate. That representative may bring actions for personal injury, pain and suffering, or expenses incurred prior to the decedent's death. The damage awards from these actions belong to the estate and may pass to different parties as directed by the decedent's will.
In Nevada, Nev. Rev. Stat. § 41.085 creates an independent cause of action in the heirs and personal representatives of one whose death is caused by the wrongful act or neglect of another. The right of action is not concerned with the wrong done to the decedent but only with the wrong done to the heirs through the decedent's death. The Nevada Supreme Court has ruled that, pursuant to Nev. Rev. Stat. § 41.085(4) and (5), estate's recovery cannot include lost economic opportunities of the decedent or punitive damages. Moreover, subsection four states that the heirs have a right to recover for loss of probable support. This element of damages translates into, and is measured by, the decedent's lost economic opportunity.
A wrongful death claim may arise out of a number of circumstances, such as: 1) Medical malpractice that results in decedent's death; 2) an automobile or airplane accident; 3) occupational exposure to hazardous conditions or substances; 4) criminal behavior; or, 5) death during a supervised activity, among others.
Element's of a Wrongful Death Claim
In Nevada, as in most other jurisdictions, a successful wrongful death action contains the following elements:
1. The death of a human being;
2. Caused by another's negligence, or with intent to cause harm;
3. The survival of family members who are suffering monetary injury as a result of the death, and;
4. The appointment of a personal representative for the decedent's estate.
Damages in a Wrongful Death Lawsuit
As discussed above financial injury is the sole measure of damages in a wrongful death action. In Nevada, this has been described as loss economic opportunity, including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses.
Determining Pecuniary Loss
When determining economic loss, Nevada Courts consider the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the heirs and beneficiaries of the decedent’s estate. Therefore, generally, in determining damages in a wrongful death action, the decedent's circumstances at the time of death are taken into consideration. For example, when parent with dependents dies, his children may recover for: 1) loss of income, and 2) loss of parental guidance considering the decedent's earnings at the time of death, the last known earnings if unemployed, and potential future earnings.
Adjustments in the Jury's Award
Notwithstanding the above, the size of an award may be adjusted downward by the court for a several reasons, including, if the decedent routinely squandered his income or the decedent had poor earnings. On the other hand, a court may adjust an award upward because the decedent had great potential or supported several children. Similarly, damages may be awarded despite the decedent's having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent's average earnings while employed.
Based Upon the Negligent or Reckless Conduct of a Person, Company or Entity
As with all other claims sounding in negligence, to recover under a negligence theory, the Plaintiff must prove four elements: (1) that defendant owed him a duty of care; (2) that defendant breached this duty of care; (3) that the breach was the legal cause of plaintiff's injury; and (4) that the Plaintiff suffered damages.